tag:blogger.com,1999:blog-265421452024-03-08T16:46:59.406-05:00Robichaud's Toronto Criminal Law FirmOriginal Blog of Robichaud Criminal Litigation in Toronto. Visit robichaudlaw.ca for our new site and blog. Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.comBlogger748125tag:blogger.com,1999:blog-26542145.post-85290330371888314132011-04-18T23:40:00.001-04:002013-10-28T11:54:09.133-04:00What's the difference between a indictable and summary conviction offence in Canadian law?<div class="MsoNormal" style="font-family: Arial; font-size: 12pt; margin-bottom: 0.0001pt; margin-left: 0cm; margin-right: 0cm; margin-top: 0cm;">
Under the Criminal Code of Canada, there are three types of offences: summary conviction offences, indictable offences, and those offences where the Crown may elect to proceed by summary conviction or by indictment. Crown-electable offences are often referred to as "hybrid offences". The simplest explanation of the difference between summary conviction offences and indictable offences is that the former is less serious than the latter. </div>
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<b>Summary Conviction Offences</b></div>
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Summary conviction offences include the least serious offences under the Criminal Code of Canada. Relatively speaking to the number of offences under the Criminal Code, there are actually very few pure summary conviction offences. Those pure summary conviction offences include: possession of marijuana under 30 grams, solicitation of prostitution, being found in a common bawdy house, etc.</div>
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There are unique aspects that apply to summary conviction offences that do not apply to indictable offences. For example, a six month limitation period applies to all summary conviction offences or if the crown chooses to proceed by summary conviction. Another unique aspect to summary conviction offences is that a person charged with a pure summary conviction offence (not hybrid) is not required to submit their fingerprints with police upon or after arrest or conviction. Summary conviction offences are appealed in the Superior Court of the relevant jurisdiction, and not directly to the Court of Appeal. In Ontario, those appeals take place in the Ontario Superior Court of Justice. Summary conviction offences generally carry a maximum penalty of six months in jail, although some electable offences have a maximum of eighteen months in jail (e.g. assault causing bodily harm, assault with a weapon, forcible confinement, sexual assault). A person is not entitled to a jury trial or to have their case heard in the Superior Court of Justice, unless it is being heard alongside an indictable offence at the same time. </div>
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<b>Indictable Offences</b></div>
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Indictable offences are the most serious of criminal offences and would include murder, acts of terrorism, robbery, drug trafficking, robbery, treason, certain types of sexual assault, and other very serious criminal acts. As one could imagine, the sentences for these types of offences are very serious and often carry a potential maximum penalty of life imprisonment. Anyone charged with these sorts of offences usually has the right to choose their mode of trial: judge alone in Provincial Court without a preliminary hearing, judge alone in Superior Court with or without a preliminary hearing, or a jury trial with or without a preliminary hearing. However, not everyone who is facing an indictable offence is entitled to a preliminary hearing or a judge and jury trial (those exceptions are set out in section 553 of the Criminal Code). Similarly, not every type of offence permits the accused to elect to have a judge <i>without</i> a jury unless the prosecutor consents (for example, in first-degree murder the Crown must consent to have the case heard by a judge alone). </div>
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There is no limitation period for indictable offences and a person can be charged, tried, acquitted or convicted at any time the police wish to proceed with the charges provided there is a sufficient basis for doing so. </div>
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Usually indictable offences very complicated with serious consequences. Although it is never a wise choice to defend allegations without the assistance of a lawyer, doing so when facing an indictable offence is reckless. Appeals for indictable offences are heard by the Court of Appeal for the Province the case was heard. </div>
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<b>Hybrid Offences</b></div>
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Hybrid offences are those offences where the Crown may choose to proceed by either indictment or summary conviction. These types of offences cover the majority of Criminal Code of Canada offences. The include, but are not limited to: assault, sexual assault, fraud under $5000.00, theft under $5000.00, assault with a weapon, assault causing bodily harm, possession of cocaine (simple possession), and many more. </div>
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The decision by the Crown to proceed by way of indictment or summary conviction is a discretionary one that is not subject to review by any court (unless there was a deliberate abuse of process which would be exceptionally rare and very difficult to demonstrate). In assessing whether or not to proceed by indictment or summary conviction, a Crown would consider factors that may include: the seriousness of the allegations (for example, "sexual assault" can include either touching or full intercourse), the accused's prior criminal record, the notoriety of the case in the community, the availability of court resources, whether the offence is sworn outside the limitation period for a summary conviction, the complexity of the case, and any other relevant considerations. </div>
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If you wish to lean more, please visit <a href="http://www.criminallawyerintoronto.ca/">www.criminallawyerintoronto.ca</a> or call (416) 220-0413 to discuss these or any other issues relating to criminal law. </div>
Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-2939146889908902382012-12-17T22:55:00.003-05:002012-12-17T22:55:38.533-05:00NEW BLOG ADDRESS at robichaudlaw.ca<h3>
Please visit our new blog on our website at <a href="http://robichaudlaw.ca/blog/">http://robichaudlaw.ca/blog/</a></h3>
Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-75208342724584718402009-07-27T19:40:00.004-04:002012-12-13T08:20:38.025-05:00What is diversion and and I eligible to have my criminal charges withdrawn?Please visit our website at <a href="http://robichaudlaw.ca/">http://robichaudlaw.ca</a> for more information.<br />
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Of late I have received many calls and emails from people who are charged with a criminal offence asking me what is diversion and are they eligible. The short answer is “it depends” but i hope to shed a bit more light in this article on what diversion is, who is generally eligible, and what are the effects upon a criminal record if they accept it. <br />
<strong style="color: white;">Question: So, what is “diversion”?</strong><span style="color: white;"> </span>Diversion means just that: an individual who is charged with a criminal offence is diverted out of the Court system and asked to provide some sort of reparation to society for their alleged wrong. This reparation will take the form of community service, a donation to charity, or a more specific program tailored to the individual’s specific life situation (as is often the case with people suffering from mental health issues). Upon completion of whatever terms the diversion is dependent upon, the charges are “withdrawn” meaning that you remain legally innocent of the charges. Since you are presumed innocent when you are charged until proven guilty, you remain legally innocent when your charges are withdrawn because the allegations were never proven in a Court of law against you. <br />
<strong><span style="color: white;">Question: Who decides whether I am eligible for diversion?</span> </strong>There is only one party who has the power to determine a person’s eligibility for diversion, and that person is the Crown Attorney (or the Office of the Crown Attorney). When a file first comes to the Crown’s office after bring processed by the police department, an initial screening of the file is made by the Crown Attorney. If the Crown Attorney decides that you are eligible for diversion, then the brief will be marked up accordingly and typically that accused person will be advised of that decision on their first day in Court. The factors that the Crown takes into account when assessing a file include, but are not limited to: <br />
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<li>Whether the person has a criminal record or past dealings with police; </li>
<li>Cooperation with police upon arrest; </li>
<li>The seriousness of the offence (amount of money lost, alleged harm done, etc.); </li>
<li>The cost of prosecuting the case in comparison to the seriousness of the offence; </li>
<li>The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and, </li>
<li>The wishes of the alleged victim. </li>
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It is also important to know that simply because a file is initially screened as ineligible does not mean that is the final decision. Despite a Crown Attorney’s initial view, they may be persuaded by legal counsel that a person is eligible after all. For this reason, it is wise to retain an experienced criminal lawyer to ensure that all possibilities for diversion are canvassed. <br />
<strong><span style="color: white;">Question: What kind of charges are eligible for diversion? </span> </strong>Technically, any type of charge may be eligible for diversion; however, the most common cases where diversion is routinely offered is theft under, possession of small amounts of marijuana, and solicitation of prostitution. Other offences where diversion is offered, albeit less common, include: mischief offences, assault, fraud, being found in a bawdy house, harder drug possession, and crimes where there is no large amounts of money lost and no serious physical violence. Again, retaining a lawyer could help convince a Crown Attorney to offer diversion when that person may not be initially eligible. <br />
<strong style="color: white;">Question: Do I have to admit to anyone what I did? </strong>Generally speaking, when a person is accepted into the diversion program, it is contingent upon that individual accepting responsibility for their wrong. An extensive confession is not required. Typically, the social worker who is interviewing the person for an initial intake will ask questions like: <br />
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<li>Why did you do this? </li>
<li>Do you understand this is wrong? </li>
<li>Do you appreciate the costs to society in your actions? </li>
<li>Do you appreciate the harm you have done to yourself, family, and friends and personal reputation in committing these offences? </li>
<li>Have you learned your lesson? </li>
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If that worker feels that the person has learned their lesson and will not engage in similar acts in the future, that person will be advised what they will have to do (community service, etc.) in order to have their charges withdrawn. <br />
<strong style="color: white;">Question: Is what I tell the diversion worker admissible against me at trial later on?</strong><span style="color: white;"> </span> Fortunately, all of the discussions you have with the diversion office for these purposes is confidential and cannot be used against you in Court later on. Section 717(3) of the <em>Criminal Code of Canada </em>clearly states: <br />
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No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.</blockquote>
This section is placed here by legislation to facilitate people who are eligible for diversion or “alternative measures” to engage in the process without the fear of reprisal for their admissions later on. <br />
<strong><span style="color: white;">Question: Now that I am eligible for diversion, what happens next?</span> </strong>Once you are eligible, you will return to Court and adjourn your case for as much time as required to complete the terms of diversion. For example, if a person is asked to complete 35 hours of community service, they will likely be adjourned for 3-4 weeks for them to complete it. <br />
<strong><span style="color: white;">Question: Ok, I completed my terms, now what?</span> </strong>When you return to Court after completing your terms of diversion, you or your lawyer will present the proof thereof to the Crown Attorney and Court and if everything is done in accordance with the agreement, your charges with be withdrawn. <br />
<strong><span style="color: white;">Question: Should I retain a lawyer for this?</span> </strong>Retaining a lawyer is always a prudent thing to do no matter how insignificant the charge may be; however, this is always a personal choice and some people choose to represent themselves. Some things to consider is that a lawyer can: <br />
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<li>Provide guidance, confidence, and ease of mind throughout the process; </li>
<li>Appear on your behalf so that you do not need to miss work or feel embarrassed about being present in Court; </li>
<li>Negotiate a better settlement with the Crown Attorney; </li>
<li>Familiarize you with the proceedings and what is expected to happen; </li>
<li>Follow up with the police department and request that your fingerprints, records, and photographs be destroyed upon the withdrawal of your charges; </li>
<li>Provide you with the certified Court documentation that proves your charges were withdrawn; </li>
</ul>
If you wish to discuss these, or any other criminal law matters, I can be reached at (416) 220-0413 or you may visit my website at: <a href="http://www.criminallawyerintoronto.ca/">www.criminallawyerintoronto.ca</a>. I provide criminal defence legal services for all of Ontario. <br />
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Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-42485383431693451372009-04-19T21:58:00.004-04:002012-10-16T21:26:26.251-04:0025 Laws of Being a Criminal Defence Lawyer<span style="font-family: arial; line-height: 19px;"></span><br />
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<span style="font-family: arial; line-height: 19px;">1) Everyone lies; trust no one but the evidence. </span><br />
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<span style="font-family: arial; line-height: 19px;">2) Juries thinks a defendant is guilty the first moment they lay eyes on you: you have to convince them otherwise.</span></div>
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<span style="font-family: arial; line-height: 19px;">3) The right to silence is the most powerful and under appreciated right an individual has. </span></div>
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<span style="font-family: arial;"><span style="line-height: 19px;">4) Everyone chose sides and everyone wants to win: police, prosecutors, witnesses, lawyers, and accused. </span></span></div>
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<span style="font-family: arial; line-height: 19px;">5) For better and worse, judges are human. </span></div>
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<span style="font-family: arial; line-height: 19px;">6) The simplest explanation is the most persuasive, but it is probably not the truth. </span></div>
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<span style="font-family: arial; line-height: 19px;">7) Saying "sorry" means a lot no matter how serious you are in trouble; </span></div>
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<span style="font-family: arial; line-height: 19px;">8) There is too much reliance on expert evidence; </span></div>
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<span style="font-family: arial; line-height: 19px;">9) You must be paid up front for your services; </span></div>
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<span style="font-family: arial; line-height: 19px;">10) Prepare, prepare, prepare, and when you are done doing that, prepare some more; </span></div>
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<span style="font-family: arial; line-height: 19px;">11) Juries and judges want to hear an explanation, regardless of your right to silence; </span></div>
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<span style="font-family: arial; line-height: 19px;">12) Liars can convince themselves in their own deceit; </span></div>
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<span style="font-family: arial; line-height: 19px;">13) Crack cocaine and crystal meth will destroy you; </span></div>
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<span style="font-family: arial; line-height: 19px;">14) You must leave the battle turmoil in the arena; </span></div>
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<span style="font-family: arial; line-height: 19px;">15) Innocent people are convicted of offences they did not commit; </span></div>
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<span style="font-family: arial; line-height: 19px;">16) Guilty people are acquitted of offences they did commit; </span></div>
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<span style="font-family: arial; line-height: 19px;">17) Laziness begats injustice; </span></div>
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<span style="font-family: arial; line-height: 19px;">18) 95% of victories are won outside the Court; </span></div>
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<span style="font-family: arial; line-height: 19px;">19) Cross examinations are fun, but cases are won in chief</span></div>
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<span style="font-family: arial; line-height: 19px;">20) Jail is an awful, unimaginably horrible place that very few people truly appreciate; </span></div>
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<span style="font-family: arial; line-height: 19px;">21) We are hated by the general public; </span></div>
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<span style="font-family: arial; line-height: 19px;">22) Politicians, police, and prosecutors are never satisfied with enough powers; </span></div>
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<span style="font-family: arial; line-height: 19px;">23) People can be rehabilitated; </span></div>
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<span style="font-family: arial; line-height: 19px;">24) You can make a difference in individuals and society; and lastly,</span></div>
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<span style="font-family: arial; line-height: 19px;">25) There are few things more exhilarating than a "not-guilty" verdict being read out from a jury box; the converse also holds true.</span></div>
<span style="font-family: arial; line-height: 19px;"></span>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0The PATH - City Hall, Toronto, ON M5H 2N1, Canada43.653226 -79.383184313.755297999999996 -119.8128718 73.551154 -38.953496799999996tag:blogger.com,1999:blog-26542145.post-21636618140119067632011-04-08T19:31:00.005-04:002012-06-17T22:15:31.886-04:00What happens on the first day of criminal court in the Ontario Court of Justice?<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
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<tr><td class="tr-caption" style="text-align: center;">Old City Hall, Toronto</td></tr>
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Generally speaking, the first day in the Ontario Court of Justice is not your trial date - it is an administrative appearance for the purposes of understanding what the charges are, to obtain disclosure, and to advise the Court of your intentions in <a href="http://www.robichaudlaw.ca/Robichauds/Retaining_a_Criminal_Lawyer_in_Ontario.html">retaining a lawyer</a>. </div>
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After a person is <a href="http://www.robichaudlaw.ca/Robichauds/Court_Procedures.html">charged with a criminal offence</a>, a person is either released by police unconditionally, released by police with conditions (an undertaking to a peace officer or officer in charge) or they are taken for a bail hearing where the person is released by the Court or held in custody. After this has taken place, an accused person is provided a date in Court, typically known as a <a href="http://www.robichaudlaw.ca/Robichauds/Court_Procedures.html">"first appearance" court</a> date. <br />
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On this initial appearance there are a number of events that are expected to happen: First, the Crown is expected to provide "disclosure" to the accused. "Disclosure" is the evidence the Crown and police have in their possession that they intend to rely upon to prosecute the case. This assists the accused and the accused's lawyer in better understanding the case against them so that they make informed decisions about how to proceed with the case. Second, if the accused has retained a lawyer, that lawyer should attend to inform the Court that they are now prepared to go "on the record" as the individual's counsel. If the person does not have a lawyer, they are expected to advise the Court of their intentions to do so, or whether they wish to represent themselves. </div>
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Although unusual, and likely an unwise decision at this early stage, It is possible that a person could have their charges traversed before a judge on the first appearance in Court to plead guilty if they so wished. The reason that this would be unusual is because a person would typically want the assistance of counsel to thoroughly reviewed the disclosure, advise the client on the merits and weaknesses of the case, and to negotiate with the Crown to obtain the best possible resolution in the circumstances (often referred to as a "plea bargain"). Since all of these steps would be difficult to achieve on the first appearance, most counsel will seek to adjourn the matter to complete all these steps diligently and to obtain materials (such as job, reference, or doctors letters) that may assist in mitigating the sentence against the individual who wishes to plead guilty. In Ontario, a person is not expected to enter a plea of "not-guilty" on the first appearance and is typically is not asked to do so until that individual is arraigned at the trial date. It is very easy to change a plea of not-guilty to guilty; the converse is very difficult. </div>
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After the Court addresses the matter, and assuming the person does not want to plead guilty at this early stage, the case will be adjourned for several weeks so that the person charged may: a) review disclosure, or obtain disclosure on the next occasion if not already provided, b) retain and obtain advice from counsel, c) apply for Legal Aid if necessary, d) have their lawyer speak to the Crown Attorney about the case for the purpose of resolution or trial discussions, or, e) any other purpose that the situation may require. </div>
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To recap: unless a person intends to plead guilty immediately, the first day in Court is an administrative appearance - it is not a trial date. No evidence is called, no plea is entered, and there is nothing to be overly concerned about. Although not strictly necessary, obtaining legal counsel prior to this appearance is a very prudent action as they can assist in all aspects described above and can ensure that all of your rights are protected and your questions answered. </div>
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Here are a list of many of the "first appearance" Courts in the Greater Toronto area: </div>
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60 Queen St. W., Old City Hall, Toronto: Courtroom 111</div>
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444 Yonge St., College Park, Toronto: Courtroom 505</div>
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1911 Eglinton Avenue, Scarborough: Courtroom 407</div>
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1911 Eglinton Avenue, Scarborough (Youth Court): Courtroom 408</div>
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311 Jarvis Ave., Toronto (Youth Court): Courtroom 1</div>
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2201 Finch Ave. W., Etobicoke: Courtroom 202</div>
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2201 Finch Ave. W., Etobicoke: Courtroom 407</div>
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Visit our website at <a href="http://www.robichaudlaw.ca/">www.robichaudlaw.ca</a> or call 416.220.0413 for more information on how to approach criminal charges or to speak to a criminal lawyer. </div>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-34285001311922880382011-10-02T12:50:00.000-04:002012-06-17T22:12:50.423-04:00Toronto Criminal Lawyers | Robichaud's | Criminal Law FirmSome new updates to our website. Please take the time to visit it and pass the link on or like it on Facebook. Thank you. <a href="http://www.robichaudlaw.ca/">Toronto Criminal Lawyers | Robichaud's | Criminal Law Firm</a>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-91274473413101060522011-08-04T15:47:00.003-04:002011-08-06T12:29:07.875-04:00The sound and fury of cross-examination: 10 guidelines<div class="separator" style="clear: both; text-align: center;"><a href="http://1.bp.blogspot.com/-u2XBRm8xvfI/Tjr3KRJ2ODI/AAAAAAAACK8/axQVEEor_pQ/s1600/IMG_1901.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="212" src="http://1.bp.blogspot.com/-u2XBRm8xvfI/Tjr3KRJ2ODI/AAAAAAAACK8/axQVEEor_pQ/s320/IMG_1901.jpg" width="320" /></a></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial;"><span class="Apple-style-span" style="font-size: x-large;">T</span></span><span style="font-family: Arial; font-size: 11pt;">here are few topics in the law written on as extensively as cross-examination. Cross-examination is to a lawyer as is the breakaway shot is to the hockey player, the Oscar-winning monologue to the actor, or the entrée to a very good meal. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Cross-examination is the climax of any good lawyer movie, and for good reason. It is exciting, dramatic, emotional, intense, and at times stunningly brilliant. We all remember Jack Nicholson in A Few Good Men after being questioned, cornered, and cajoled by Tom Cruise shout "You can't handle the truth!". Metaphorically it is a scene that every lawyer tries to replicate as they approach to dais, hoping for the moment they break the witness down to tears or emotion that solidifies an acquittal or conviction. In reality, this rarely happens; however, it does not take away from the effectiveness of a good cross-examination. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Every litigator has their own style and theories on what makes an effective cross-examination, and no one in particular is categorically right or wrong of how that is defined, or what rules must be followed or avoided. In the end, effectiveness comes down to persuasion, which can be achieved through infinite means and through any individualized style. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Notwithstanding, here are a few observations I have made over the years conducting hundreds of criminal trials that I hope may assist some lawyers in developing the style that they think is most effective. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none;"><br />
</div><div class="MsoListParagraph" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><span style="font-family: Arial; font-size: 11pt;">1.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></b><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">Have a purpose </span></i></b><b style="mso-bidi-font-weight: normal;"><span style="font-family: Arial; font-size: 11pt;"><o:p></o:p></span></b></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Throwing muck on the wall and hoping something sticks is a sure way to bore and confuse a judge or jury. Impeaching witness on collateral issues may be impressive and amusing to you, but it does nothing to further the interest of the judge or jury in trying to figure out what happened on the issues that are relevant. Before putting on your menacing glare and unsheathing your Mont Blanc pen, ask yourself what am I attempting to obtain from this witness: Is it damage control? What admissions can I obtain? What admissions do I want? What risks are present? How does their evidence fit into my overall theory? Do I want them credible or incredible, or incredible on certain aspects but believable on others? Have an objective for every witness and an understanding on how they mesh in your overall theory. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none;"><br />
</div><div class="MsoListParagraphCxSpFirst" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">2.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></i></b><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">Sometimes silence is more powerful than words<o:p></o:p></span></i></b></div><div class="MsoListParagraphCxSpLast" style="mso-layout-grid-align: none; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Although not as entertaining, refraining from asking a witness any questions can be a very powerful statement to a judge or jury. For many litigators, particularly inexperienced ones, there is an insatiable desire to ask questions, no matter how irrelevant, innocuous, or risky those questions may be. If the witness has already testified in a manner that is helpful to you, does not hurt your case or theory, or the risk outweighs any reward, then stand up confidently and state to the Court: “no questions”. It says to the judge or jury that this witness’ evidence is acceptable or does not concern you in the slightest. This comes with the caveat that you must ensure you meet your obligations set out in <i style="mso-bidi-font-style: normal;"><a href="http://en.wikipedia.org/wiki/Browne_v._Dunn">Browne and Dunn</a></i>, i.e., confronting relevant witnesses on evidence that you intend to introduce through other means, when they have the ability to do so. <o:p></o:p></span></div><div class="MsoListParagraphCxSpFirst" style="mso-layout-grid-align: none; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none;"><br />
</div><div class="MsoListParagraphCxSpLast" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><span style="font-family: Arial; font-size: 11pt;">3.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></b><b style="mso-bidi-font-weight: normal;"><i><span style="font-family: Arial; font-size: 11pt;">Remain professional</span></i></b><b style="mso-bidi-font-weight: normal;"><span style="font-family: Arial; font-size: 11pt;"><o:p></o:p></span></b></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; tab-stops: 11.0pt 36.0pt; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Juries, judges, and witnesses can all detect emotion and that is precisely what you are trying to extract in a favourable way from the person sweating in the witness box. Therefore, it is not something that you want to portray as counsel. For a lawyer to show emotion that is beyond what one would expect of a professional is counter-productive. In particular, anger and frustration have no place on counsel’s countenance. If you are justified in your internal anger and frustration with a particular witness, then the jury or judge likely feels the same emotion. Your patience and fairness can even be amplified by their witnesses’ behaviour that may stoke those emotions. Professionalism and patience adds to your credibility as counsel. Emotions also cloud objectivity and your ability to assess whether your examination is having the intended effect. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoListParagraphCxSpFirst" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><span style="font-family: Arial; font-size: 11pt;">4.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></b><b style="mso-bidi-font-weight: normal;"><i><span style="font-family: Arial; font-size: 11pt;">Never interrupt a witness. </span></i></b><b style="mso-bidi-font-weight: normal;"><span style="font-family: Arial; font-size: 11pt;"><o:p></o:p></span></b></div><div class="MsoListParagraphCxSpLast" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Listening to a lawyer and a witness trying to speak over one another is painful to the judge or jury. Whatever points you think you may be scoring, they are either being drowned out by the witness or the jury has tuned out the dissonance. Controlling the witness is important but interrupting them is never the way to obtain that. It may also portray you as being unfair and sharp with a witness if you are not letting them answer the questions fully. If a witness is unnecessarily prolix that it would require some form of intervention, then that direction should be sought from the Court. <o:p></o:p></span></div><div class="MsoListParagraphCxSpFirst" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoListParagraphCxSpLast" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">5.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></i></b><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">You must know how to impeach someone properly on prior inconsistent statements.<o:p></o:p></span></i></b></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">If you do not know how to hammer a nail, you shouldn’t be building houses. It is the same thing with lawyers. If you cannot understand how to properly impeach someone, what rules of evidence apply, and what fact you are trying to elicit or undermine, then your structure will crumble. There are few things more effective in trial than a powerful impeachment but it must be done properly and a manner that is organized and concise. An entire blog entry, or book, could be written on effective impeachment. Therefore, suffice to say that impeachment requires a proper understanding of the law, practice and purpose. Are you allowed to impeach them? Is there actually an inconsistency? Is that inconsistency important? How is it important? Do you want them to adopt the initial statement or undermine their credibility at large? Where is the inconsistency in the statement? Here is the simplest of examples in trying to have someone adopt a prior statement that you want them to <i style="mso-bidi-font-style: normal;">adopt </i>as opposed to undermine: <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Q: You just indicated to the court the car was blue? <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">A: Yes. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Q: Do you remember providing a statement to police on the night of the robbery? <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">A: Yes. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Q: Were you telling the truth to the police at that time about what you saw? <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">A: Yes.<o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Q: You were sober and aware of what had just happened? <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">A: Of course, I just saw it all clearly. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">Q: The statement was immediately after the robbery was it not? <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">A: It was. About 10 minutes after. <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">Q: And like all humans, your memory would be better immediately after the event than it would trying to recall things 6 months later, as you are trying to attempt here? <o:p></o:p></span><br />
<span style="font-family: Arial; font-size: 11pt;">A: Sure. That makes sense. </span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">Q: Can you please look at this? <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">A: Ok. <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">Q: And what is that? <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">A: The statement I provided to police on the night of. <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">Q: And you would agree that you told the police that the car was yellow? <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">A: Yes, it appears I did. <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">Q: You already indicated you were not trying to mislead police that night. <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">A: Of course not. <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">Q: And you agreed that your memory would have been better that night, 10 minutes after the event? <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">A: Yes.<o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">Q: Its fair to say that looking at this now, the car must have been yellow, and you are simply mistaken now, 6 months later trying to remember things as best as you can? <o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none; text-indent: -36.0pt;"><span style="font-family: Arial; font-size: 11pt;">A: I guess so. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoListParagraph" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">6.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></i></b><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">The primacy and recency effect<o:p></o:p></span></i></b></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal"><span style="font-family: Arial; font-size: 11pt;">All people, including judges and juries, remember things at the beginning and at the end of a sequence. For example try to remember the following sequence 48390804832098322. As you read on, you most likely remember the numbers 4839 and 322. The number sequence is just an example of how information is retained. Understanding that, putting the most important parts of your cross examination at the beginning and end will assist the jury in remembering the aspects you want them too. Similarly, putting the information that is less favourable in the middle has the psychological effect of having less impact – i.e. examining on a criminal record of your client. </span><span lang="EN-GB" style="font-family: Arial; font-size: 11pt;"> One example of this used in practice is an immediate confrontation of a murder weapon of an accused: “Do you recognize this sir?” while holding the bloody knife in your hand. <o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoListParagraph" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">7.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></i></b><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">Avoid opinion and submissions to the witness - establish facts, not conjecture. <o:p></o:p></span></i></b></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal"><span style="font-family: Arial; font-size: 11pt;">Opinions are like noses, everyone has one and they are only useful to the person whose face it is attached to. Counsel should never provide opinions on the witness’ evidence, or make sarcastic remarks. If an argument is to be made on the incredulous aspects of a witness’ evidence, save it for your closing submissions. Being sarcastic comes across as abusive and is not helpful to any judge or jury in their roles of fact-finding. If you have established the facts properly there is no need for hyperbole or opinion as you will have already accomplished that. Keep your opinions to yourself and let the facts do the talking. </span><span lang="EN-GB" style="font-family: Arial; font-size: 11pt;"><o:p></o:p></span></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoListParagraph" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">8.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></i></b><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">Listen to the answers.<o:p></o:p></span></i></b></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal"><span style="font-family: Arial; font-size: 11pt;">Too often litigators will be so entangled in their meticulous questions that they fail to see manna raining from heaven. It is not uncommon for a witness to offer information that, although is not part of your script, is very favourable to your case. Pay attention to the answers and the side-issues raised by the witness. Asking a few more exploratory questions on a collateral issue may be the very thing you need to win your case. This skill may require some comfort and skill with the unknown but practice and experience will allow you to ask those exploratory questions without creating substantial risk to your case. </span><span lang="EN-GB" style="font-family: Arial; font-size: 11pt;"><o:p></o:p></span></div><div class="MsoListParagraphCxSpFirst" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoListParagraphCxSpLast" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; text-autospace: none; text-indent: -18.0pt;"><b style="mso-bidi-font-weight: normal;"><span style="font-family: Arial; font-size: 11pt;">9.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span></b><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">Save your fury</span></i></b><b style="mso-bidi-font-weight: normal;"><span style="font-family: Arial; font-size: 11pt;"><o:p></o:p></span></b></div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="font-family: Arial; font-size: 11pt;">If every witness is treated like the Colonel who ordered the Code Red, the routine is going to get very tiresome. This is not to say that witnesses should never be approached with all the professional sound and fury you can muster – however, they must deserve it. Some witnesses will never deserve this treatment no matter how much they may be mistaken or lying. For example, making a 10 year old sexual assault complainant cry, rarely gets you very far. Chose your battles wisely and when necessary, and only necessary, lay your vengeance upon thee. <o:p></o:p></span></div><div class="MsoListParagraphCxSpFirst" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoListParagraphCxSpLast" style="mso-layout-grid-align: none; mso-list: l0 level1 lfo1; mso-pagination: none; text-autospace: none; text-indent: -18.0pt;"><span style="font-family: Arial; font-size: 11pt;">10.<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span></span><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="font-family: Arial; font-size: 11pt;">Develop your own style. </span></i></b><span style="font-family: Arial; font-size: 11pt;"><o:p></o:p></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span style="font-family: Arial; font-size: 11pt;">In the end, cross-examination comes down to a personal style that is developed over the years and crafted to match the strengths and weaknesses of the individual lawyer. One lawyer's<i> </i>effective<i> modus operandi </i>is not easily transferable to another. Effective cross-examination usually many examinations to develop, and many more to master. Hopefully some of the observations I have made over the years in conducting hundreds of criminal trials serve useful in developing and mastering your own style. </span><span lang="EN-GB" style="font-family: Arial; font-size: 11pt;"><o:p></o:p></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span class="Apple-style-span" style="font-family: Arial; font-size: 15px;">Sean Robichaud, Criminal Defence Lawyer</span></div><div class="MsoNormal"><span class="Apple-style-span" style="font-family: Arial; font-size: 15px;"><a href="http://www.robichaudlaw.ca/">www.robichaudlaw.ca </a></span></div>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-47505946050271287982011-02-13T18:00:00.003-05:002011-04-08T19:38:28.840-04:00King Law Chambers: Toronto Criminal Defence Lawyers<a href="http://lh3.ggpht.com/_DFg-lBFKmHc/TVhoCTRNXKI/AAAAAAAACIw/Lt_TCw5734s/s1600-h/King%20Law%20Chambers%5B6%5D.jpg"><img align="left" alt="King Law Chambers" border="0" height="107" src="http://lh4.ggpht.com/_DFg-lBFKmHc/TVhoChsBbhI/AAAAAAAACI0/rm7wJs58Dk8/King%20Law%20Chambers_thumb%5B4%5D.jpg?imgmax=800" style="border-bottom: 0px; border-left: 0px; border-right: 0px; border-top: 0px; display: inline; margin: 0px 10px 0px 0px;" title="King Law Chambers" width="142" /></a> King Law Chambers and its website are up and running. Check out <a href="http://www.kinglawchambers.com/">www.kinglawchambers.com</a> to see the collection of Toronto criminal defence lawyers practicing out our space at King and Bathurst now. We are all looking forward to working together and sharing our collective and considerable experience to assist out clients charged with criminal offences of all types and degrees of seriousness. Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-91108744346746728702011-02-28T18:48:00.004-05:002011-04-01T19:23:25.975-04:00Wrongful convictions commissions in Canada<div style="font: 14.0px Cambria; margin: 0.0px 0.0px 0.0px 0.0px;"><span id="goog_1470761277"></span><br />
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="http://www.blogger.com/goog_1470761276"><img border="0" height="200" src="http://3.bp.blogspot.com/-k21S_k7ksOg/TZZcy07xgiI/AAAAAAAACKA/azXTfarJnXg/s200/mullins_johnson_cp_8496758.jpg" width="150" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">William Mullins-Johnson: <br />
Wrongfully convicted of a murder <br />
he did not commit. <br />
Picture from <a href="http://www.cbc.ca/news/canada/toronto/story/2007/10/15/mullins-johnson.html">www.cbc.ca</a></td></tr>
</tbody></table><span id="goog_1470761278"></span><b><span class="Apple-style-span" style="font-size: small;"><span class="Apple-style-span" style="font-family: inherit;">A collection of wrongful conviction inquiries in Canada: </span></span></b></div><div style="font: 14.0px Cambria; margin: 0.0px 0.0px 0.0px 0.0px;"><b><br />
</b></div><div style="font: 14.0px Cambria; margin: 0.0px 0.0px 0.0px 0.0px;"><b><a href="http://csc.lexum.umontreal.ca/en/1989/1989rcs2-788/1989rcs2-788.pdf">Donald Marshall Inquiry Report:</a></b></div><div style="font: 11.0px Calibri; margin: 0.0px 0.0px 0.0px 0.0px;"><span class="Apple-style-span" style="font-family: Cambria; font-size: 14px;"><b><a href="http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/">Guy-Paul Morin Inquiry Report:</a></b></span></div><div style="font: 11.0px Calibri; margin: 0.0px 0.0px 0.0px 0.0px;"><span class="Apple-style-span" style="font-family: Cambria; font-size: 14px;"><b><a href="http://www.gov.mb.ca/justice/publications/sophonow/toc.html">Thomas Sophonow Inquiry Report:</a></b></span></div><div style="font: 11.0px Calibri; margin: 0.0px 0.0px 0.0px 0.0px;"><span class="Apple-style-span" style="font-family: Cambria; font-size: 14px;"><b><a href="http://www.justice.gov.nl.ca/just/lamer/">Parsons, Druken, and Dalton Inquiry:</a></b></span></div><div style="font: 14.0px Cambria; margin: 0.0px 0.0px 0.0px 0.0px;"><b><a href="http://www.driskellinquiry.ca/">James Driskell Inquiry Report:</a></b></div><div style="font: 14.0px Cambria; margin: 0.0px 0.0px 0.0px 0.0px;"><b><a href="http://www.milgaardinquiry.ca/">David Milgaard Inquiry Report:</a></b></div><div style="font: 14.0px Cambria; margin: 0.0px 0.0px 0.0px 0.0px;"><b><a href="http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/truscott/robins_report.pdf">Stephen Truscott Report:</a></b></div><div style="font: 11.0px Calibri; margin: 0.0px 0.0px 0.0px 0.0px;"><span class="Apple-style-span" style="font-family: Cambria; font-size: 14px;"><b><a href="http://www.goudgeinquiry.ca/">Goudge Inquiry into Pediatric Pathology:</a></b></span></div><div style="font: 11.0px Calibri; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 11.0px Calibri; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
<div class="MsoNormal"></div><div class="MsoNormal"><span class="Apple-style-span" style="font-size: small;"><span class="Apple-style-span" style="font-family: inherit;">It's important for everyone to remember that wrongful convictions happens, continues to happen, and will always happen - but we can all take active steps to minimize those tragedies. The justice system is a human system and like all human systems, mistakes are made - the more conscious we are of that reality, the less wrongful convictions will happen.</span></span></div><br />
</div>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-53915289690851349662011-04-01T19:11:00.002-04:002011-04-01T19:13:52.055-04:00Election Canada 2011 | Party Policies on Justice and Law<div class="separator" style="clear: both; text-align: center;"><a href="http://4.bp.blogspot.com/-T8_3n2CedRc/TZZaf1WC3kI/AAAAAAAACJ8/4Bzcy-fd1Ls/s1600/canadianelection.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://4.bp.blogspot.com/-T8_3n2CedRc/TZZaf1WC3kI/AAAAAAAACJ8/4Bzcy-fd1Ls/s1600/canadianelection.jpg" /></a></div>The 2011 Canadian election is quickly approaching with the race turning into a closer contest day by day. Keeping in line with the theme of this blog, I thought it would make sense to post the head note and link to each party's policy on legal issues surrounding crime and justice. I should add it is also interesting to note how each party titles the issue on each of their websites. <br />
<br />
<a href="http://www.liberal.ca/">Liberal Party of Canada</a>: "<a href="http://www.liberal.ca/issues/justice-and-public-safety/">Justice and Public Safety</a>":<br />
<span class="Apple-style-span" style="color: #333333; font-family: Georgia, serif; font-size: 14px; line-height: 21px;"></span><br />
<blockquote>The Liberal Party has a strong record on reducing crime. We believe in tough sentences for serious crimes. But unlike the Conservatives, Liberals don’t think the solution is to spend billions on US-style mega-prisons that will only produce more hardened criminals. Meanwhile, the Conservatives have cut funding for crime prevention and victims programs and broken their promise to hire 2500 more police officers.</blockquote><div><a href="http://www.ndp.ca/">The New Democratic Party</a>: <a href="http://www.ndp.ca/platform">Not listed in "Platform"</a></div><blockquote>Oddly, there is nothing listed in the NDP platform about this issue. If I come across it, or if someone from the NDP let's me know, I will be sure to update immediately. I do believe that they still support the legalization of marijuana, so that's something relevant I guess. </blockquote><a href="http://www.conservative.ca/">Conservative Party of Canada</a>: "PM highlights important legislation on becoming law"<br />
<blockquote><div class="MsoNormal">Prime Minister Stephen Harper today highlighted new pieces of legislation, which became law. </div><div class="MsoNormal"><br />
</div><div class="MsoNormal">“Our Government is committed to supporting families and communities,” said the Prime Minister. “Over the past five years, our Government has taken action to make our streets and communities safer and to protect Canadian consumers. We have taken the right action and we have delivered.”<span class="Apple-style-span" style="color: black; font-family: Arial; line-height: 18px;"> </span> </div></blockquote>And what would a blog be without an opinion, so here it is:<br />
<br />
Keep in mind when voting this year that law and justice is not simply about punishing every offender as harshly as possible and criminalizing immoral, as opposed to harmful activity - i.e. marijuana use, prostitution, etc. It is very easy to implement policies that are "tough on crime" (whatever that means) but is quite difficult to be just, proportionate, and cognizant of what is best for society's long-term benefit. <br />
<br />
It is the difference between a parent who lashes out harshly to a child who has done wrong assuming that their punishment will "set them straight", and a parent who understands that there is nothing wrong with punishing wrong doings, but with an intent to learn right from wrong on their own volition. Fear of punishment alone will never stop crime; opportunity, strong morality, and optimism for the future will. <br />
<br />
The societal benefits in spending billions of dollars on jails pales in comparison to the benefits derived from spending that money on things like jobs, programs, and most importantly child care: almost every person who comes before the criminal courts is the product of a neglected childhood. For example, with the benefit of a national child care plan, those parents could be at home teaching their children right from wrong, instead of working to pay for the prisons they may end up in because of neglect. <br />
<br />
Providing full due process, meaningful and discretionary sentencing by well trained jurists, and the means for a person to reintegrate into society is not being soft on crime, its being smart. No matter how "tough" one may get on crime, it will never quell irrational fears; however, the smarter we get on crime, the less we have to rationally fear.Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-81666430530273032592011-02-25T15:10:00.001-05:002011-02-25T15:10:34.922-05:00The impact of Charge Approval on the public’s perception of Criminal Charges<p> </p> <p>by Anna Stuffco, Student-at-Law</p> <p>After my second year of law school, I worked for the Federal Crown Prosecutor’s office at Main and Hastings in Vancouver. The epicenter of drug crime in Canada, from street level hand-to-hand transactions to massive importing cases, I was wholly immersed in all aspects of the Criminal Justice system. On the Crown’s side, that is. </p> <p>During what is colloquially referred to as a “summer article” I was given the opportunity to conduct bail hearings in front of judges and participate in the Charge Approval process. In British Columbia, charge approval is a fundamental aspect of Criminal Procedure. It is the very first step in the criminal process, in that a Crown Attorney decides whether, on the synopsis provided by the arresting officer(s) and their notes, to lay a criminal charge as a result of that arrest. This seemingly simple first step is a pivotal one in the eventual impact the laying of a criminal charge will have on an individual. The reason for this seems obvious: once a criminal charge is laid, it is very difficult to make it go away.</p> <p>Most Canadian jurisdictions have a threshold to reach before a charge can be laid; in British Columbia, Crown Attorneys exercise a quasi-judicial function when deciding whether to lay a charge. If that threshold is not met, and there is no reasonable prospect of conviction, the charge dissolves and no further action is taken against the arrestee. </p> <p>Although Criminal Law is under Federal jurisdiction pursuant to s. 91(27) of the Constitution, the provinces have the power to regulate the administration of justice under s. 92 (14). This is how different provinces can administer the same <i>Criminal Code</i> in dissimilar procedural ways. </p> <p>Another consideration Charge Approval addresses are the implications on the accused. When someone is charged, they may not get bail; if they do, their liberty will be severely restricted. Their reputation can suffer irreparable damage, and perhaps least importantly, the financial aspects of not only retaining a lawyer to fight the charges, but also the loss of earnings whilst on bail and the impact on future earning capacity a criminal charge will make, necessitate a high level of scrutiny when allegations are made. </p> <p>To me, British Columbia had gotten it right. There, charges are not laid by police but by Government lawyers. This is the most fundamental procedural difference between British Columbia and Ontario and what ultimately leads to a more transparent system of justice. Crown attorneys are not only representatives of the Attorney General but are also members of the Law Society; for these reasons they are bound by a higher ethical and legal standard than Police Officers. Not only are Crowns legally educated, trained and liscenced, but are further bound by the code of ethics mentioned above. This puts Crowns in a better position to approve criminal charges and begin their prosecution than police officers who do not benefit from the same legal education. </p> <p>Further, Crown counsel are entrusted with “judge-like discretion” in the charge approval process, meaning it is incumbent upon them to maintain very high standards of fairness and impartiality. Their decisions are made in a judge-like atmosphere necessitating independence and neutrality. One must not think of how the decision may be justified, but must make that decision based on fact — absent emotion or partiality toward one side – removed from the usually adversarial trial process. </p> <p>Crown Attorneys must further consider whether there is a “substantial likelihood of conviction” from the facts of the arrest, and if it is in the interests of society to prosecute the case. The substantial likelihood test is a high one – probable conviction or likely conviction will not suffice – there must be a substantial likelihood the person will be convicted before a charge will be laid. This is a crucial concept in any criminal justice system, and one that British Columbia’s charge approval process adequately addresses.</p> <p>The final prong of the test as alluded to above is whether the prosecution is in society’s interest. Nebulous in its application, this prong requires Crown Attorneys take into account the larger societal interests engaged by the Criminal Justice System. The rights of both victim and accused are tied into this finding, resulting in an all encompassing consideration that must be made before each and every criminal charge is approved of. </p> <p>Which brings me to my point: our system of justice guarantees that one will be presumed innocent <i>until proven guilty</i>. What I find irksome about the practise of criminal law thus far is not weekend in-custody visits, the brutally long hours or the perpetual state of argument in which we find ourselves – it is that somehow, Canadians have forgotten our Constitutionally protected presumption of innocence and have decided that everyone who is charged <i>must be guilty</i>. And I haven’t even been called to the bar yet. </p> <p>Further exacerbated by the media, and society’s seemingly insatiable appetite for salacious fact patterns, when a criminal charge is laid the balance seems to be overwhelmingly tipped against the accused. The rank and file Canadian doesn’t realise that because criminal charges are laid by the Police in Ontario, all that is required before a charge is laid is an allegation. No corroboration or substantiation are required at this stage: just an allegation. And I realise this is a better alternative to the converse: that victims of crime be ignored and charges not laid as a result. That is certainly a result that has been and should be protected against. But at what cost to the one against whom the allegation is made? </p> <p>Our current system has created an environment in which new “tough on crime” legislation is being introduced annually, more charges are being laid, requiring more prisons, more Crowns to prosecute these cases, more stress cast upon an already bucking criminal justice system and more people being incarcerated at rates never before seen in Canada. Yet crime rates have been in steady decline since 1973.<a href="#_ftn1_1560" name="_ftnref1_1560">[1]</a> So why the hysteria?</p> <p>Charge approval is just one potential solution. But in my very limited experience, it’s one that can simply and effectively be implemented to alleviate the strain on the system. By not laying charges based on unsubstantiated allegations or for minor arrests wrought with constitutional violations, the overall goals of the Criminal Justice System can be better served and society’s interests better protected. </p> <hr align="left" size="1" width="33%" /> <p><a href="#_ftnref1_1560" name="_ftn1_1560">[1]</a> Statistics Canada: <a href="http://www.statcan.gc.ca/pub/85-002-x/2010002/article/11292-eng.pdf">http://www.statcan.gc.ca/pub/85-002-x/2010002/article/11292-eng.pdf</a>. </p> Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-56436507278660366352011-02-03T17:09:00.001-05:002011-02-03T17:09:40.545-05:00Do you qualify for Ontario Legal Aid Assistance?<p>I received an email from Ontario Legal Aid setting the eligibility of people applying for Legal Assistance.  If you are curious whether or not you would be eligible for a certificate Legal Aid please read the following: </p> <blockquote> <p>Dear Panel Member,</p> <p>On February 1, 2011, Legal Aid Ontario is implementing a new simplified eligibility test for legal aid certificates. Unlike the current needs-based test, the simplified test is based on client income and requires less documentation, which makes it easier for clients to apply for certificates over the phone or in a courthouse. </p> <p>LAO has been piloting the simplified test in selected locations over the past year, and the pilots have shown that the new test provides a range of benefits to clients, staff and stakeholders. It is a transparent test that is easy to apply and understand, and provides eligible clients with faster and more consistent decisions, enabling them to move forward with their legal matter more quickly. </p> <p>The new simplified test provides flexibility for vulnerable clients, particularly those with mental health issues or those experiencing domestic violence. Clients receiving social assistance benefits will continue to qualify for a certificate as they did under the previous test. The streamlined financial test for duty counsel services and telephone summary legal advice will remain the same.</p> <p>We expect that this will mean that applications will be processed more quickly and that duty counsel and staff will be able to easily determine if someone qualifies for a certificate.</p> <p>The financial eligibility test for duty counsel has not changed.</p> <p>LAO is in the process of making the public aware of the simplified test criteria and recognizes the importance of informed panel lawyers in this process.  Attached is a document that can be used as a reference when meeting with potential clients. Cards with this information will be available through your local Legal Aid District Office. Similar materials have been made available to the Judiciary, duty counsel, MPPs and LAO offices.  The simplified eligibility criteria will appear as follows:</p> <p><b>Financial Eligibility for a Legal Aid Certificate</b></p> </blockquote> <p><b><a href="https://lh3.googleusercontent.com/_DFg-lBFKmHc/TUsnlaIigNI/AAAAAAAACIU/2jc70pY5nf0/clip_image001%5B7%5D.jpg?imgmax=800"><img style="border-bottom: 0px; border-left: 0px; display: inline; border-top: 0px; border-right: 0px" title="clip_image001" border="0" alt="clip_image001" src="https://lh3.googleusercontent.com/_DFg-lBFKmHc/TUsno97YUZI/AAAAAAAACIY/B-ZnWJ7U_s0/clip_image001_thumb%5B4%5D.jpg?imgmax=800" width="529" height="258" /></a></b></p> <p></p> <p>Should you wish to discuss these issues any further, please view our website at <a href="http://www.criminallawyerintoronto.ca">www.criminallawyerintoronto.ca</a></p> Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-50768107987555310592011-01-02T11:15:00.003-05:002011-01-02T11:32:57.143-05:00Being Charged With a Criminal Offence<div class="MsoNormal"><i style="mso-bidi-font-style: normal;"><span lang="EN-GB">Sean Robichaud, Barrister</span></i></div><div class="MsoNormal"><i style="mso-bidi-font-style: normal;"><span lang="EN-GB">Robichaud’s Criminal Defence Litigation, Toronto<o:p></o:p></span></i></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">Very few individuals expect to be charged with a criminal offence at any point in their lives and most of those people are entirely unprepared for the stressful and perplexing process that lies ahead of them. The two most important details that every individual ought to know is the <i style="mso-bidi-font-style: normal;">right to silence</i>, and the <i style="mso-bidi-font-style: normal;">right to counsel.</i> </span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span lang="EN-GB">The Right to Silence<o:p></o:p></span></i></b></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">Exercising one’s right to silence may seem counterintuitive, especially if that person feels that they are not responsible or involved in the crime alleged. It is human nature to want to explain what did, or did not, happen. Many people who are charged feel that if they simply explain to the police the truth of the allegations, all will be quickly withdrawn with an apology for the misunderstanding. However, that is rarely the case and those few occasions where police may come to terms with their error, are grossly outweighed by the risks one takes on by making statements that may be devastating to their case later on. </span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">Police are not judges; police are investigators. Police gather evidence, they do not make final determinations of the worth of that evidence or who is telling the truth. The role of investigating officers is very simple: once there exists “reasonable and probable grounds” to believe that a criminal offence has taken place, they are obligated to make an arrest or seek a warrant for an individual. Therefore, to provide a statement typically only does one of two things: 1) provides the evidence the investigators need to establish reasonable and probable grounds they may have otherwise lacked, or 2) provide further evidence that strengthens the grounds they already have and intended to act on. </span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">The only safe option before speaking to a lawyer and obtaining specific legal advice is to exercise the right to silence. In criminal law, silence is worth nothing; however, admissions and denials can quickly turn an easily defendable case into a difficult legal challenge. If words are necessary, then experienced counsel can manage that for you at the right time, which brings us to the next point: the right to counsel. </span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span lang="EN-GB">The Right to Counsel<o:p></o:p></span></i></b></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">Under section 10(a) and 10(b) the <i style="mso-bidi-font-style: normal;">Charter of Rights and Freedoms</i>, an individual has the right on arrest or detention “to be informed promptly of the reasons” and, “to retain and instruct counsel without delay and to be informed of that right”. This latter option is one of the cornerstone’ to our legal system in Canada as it ensures that all individuals have the same benefit under the law of knowledgeable legal assistance – provided one exercises it. </span></div><div class="MsoNormal"><span lang="EN-GB">Canadian law also requires that police provide an opportunity for an individual to implement that right to the fullest extent. This means that a person has a right to call a specific lawyer and the police must assist that person in finding counsel through the use of legal directories or whatever means necessary. It is unacceptable for police to refuse a specific lawyer unless all reasonable steps have been exhausted. Researching the name of a trusted lawyer with proven experience ahead of time saves the effort of skimming through legal advertisements or unknown lawyer lists at a police station. </span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">The lawyer an individual chooses when charged with a criminal offence could be the most significant decision in their life and that is why the law mandates police must allow the person to choose. That is why most criminal defence lawyers are available 24 hours a day for emergencies like unexpected arrests or calls from police station. </span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">Being criminally charged is unpleasant; being convicted is devastating – exercising your rights properly may be the only crossroads between those events. </span><br />
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<span lang="EN-GB"><div class="MsoNormal"><span lang="EN-GB" style="font-size: 16.0pt; mso-bidi-font-size: 12.0pt;">Your first day in Court and meeting with a criminal defence lawyer<o:p></o:p></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">It is important to understand that the first appearance in criminal court is not a trial.<span style="mso-spacerun: yes;"> </span>It is not an opportunity to explain to the Court or Crown what happened and present a defence.<span style="mso-spacerun: yes;"> </span>Unless you intend to plead guilty or conduct a bail hearing, the first appearance in criminal court is largely administrative in nature.<span style="mso-spacerun: yes;"> </span>Perhaps the most significant component of that first administrative appearance is receiving “disclosure”.<span style="mso-spacerun: yes;"> </span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">“Disclosure” is a collection of items that the Crown Attorney considers relevant to the case.<span style="mso-spacerun: yes;"> </span>These items may include including include: witness statements, police officer notes, audio or video recordings, 911 calls, banking or business records, and anything the Crown Attorney and police consider relevant to the prosecution of the case.<span style="mso-spacerun: yes;"> </span>Disclosure is a constitutional right of an accused.<span style="mso-spacerun: yes;"> </span>Once disclosure is provided, your lawyer can understand the case against you in a meaningful way and provide you with a professional opinion on possible defences, legal fees, and an overview of where the case ought to proceed from that point.<span style="mso-spacerun: yes;"> </span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">Many criminal lawyers, including myself, will meet with potential clients to provide general information about procedures and estimates on fees at no cost or commitment.<span style="mso-spacerun: yes;"> </span>In meeting with a lawyer for the first time, you should bring all relevant information with you such as disclosure and witnesses contact information.<span style="mso-spacerun: yes;"> </span>You should also be prepared to discuss facts relating to your allegations if the lawyer requests.<span style="mso-spacerun: yes;"> </span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB">Being charged with a criminal offence does not need to be a terrifying experience and having sound legal advice through the process ensures that.<span style="mso-spacerun: yes;"> </span></span></div><!--EndFragment--> </span></div>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-3034304493156417402010-12-03T13:43:00.003-05:002010-12-10T10:18:06.416-05:00Questions from a high school studentA high school student asked me to answer several questions for one of her classes about my career choice and the profession of law. I thought I might share it with everyone:<br />
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<div class="MsoNormal" style="font-family: Helvetica;"><b><i><span lang="EN-GB">1. As a teenager, what did you think your career/job would be as an adult?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">There were many things that I hoped to become in my adult years including a professional rock climber, a race car driver, a river guide, and several other aspirations that all seemed much more exciting than working in an office building.</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">2. What was your first paid work experience? Was it during highs school or afterward? How many hours a week did you work? What did you get paid?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">I first worked painting fences and cutting grass at Windfield Farms: a horse breeding ranch in Oshawa. It was horrible: long days, hot sun, little pay, and very little training on how to do anything. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">3. What three things did you learn from the job? Did these experiences help shape your career and current job?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">The three things I learned are:</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="margin-left: 36pt;"><span lang="EN-GB"><span class="Apple-style-span" style="font-family: Helvetica;">a) Being successful at any job, skill, or profession requires hard work - there is no way around that basic fact;</span></span></div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 72pt; text-indent: -36pt;"><span lang="EN-GB">b) A higher education (university, college, etc.) is invaluable when working towards a reasonable income and a higher quality of life; and,</span></div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt;"><span lang="EN-GB">c) Horse manure really smells.</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">Yes, certainly the former two principles were essential to forming my present success and lifestyle. Without understanding that everything rewarding in life requires hard work, you will forever be in a position of feeling entitled to something that you do not deserve. The smell of horse manure has thankfully not been relevant in my life since then. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">4. As you continued on your educational and career path, did you have a mentor who inspired you to approach the working world in a certain way? Please explain.<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">There were several mentors along the way that inspired me. They included teachers, professors, friends, and even celebrities. Mentors are important because they give you guidance but also tangible goals that you can work towards. Guidance is important and mentors can benefit an individual by showing them options and paths in which way to obtain the protégé’s goals. However, it is important to understand that the ultimate decisions in life will be up to the individual and mentorship should never trump the importance of that decision making process. A good mentor provides a protégé the freedom to decide in an informed manner.</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">5. Can you please provide a brief description of your current job position and your employer? Did you ever expect to be working in this job?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">I am a criminal defence lawyer. I represent individuals who are charged with crimes ranging from possession of marijuana all the way to first degree murder. I do not represent guilty people; I represent people who are accused of crimes and under our law, presumed innocent until a court finds them guilty beyond a reasonable doubt. It is not my role to judge, to determine the innocence or guilt of my client – my role is to assess the evidence, advise the person of the legal principles that relate to his or her case, and then provide a defence that is vigorous and uncompromising. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">For several years I worked for, what was at the time, Canada’s largest criminal defence firm. I worked as a student, then as an associate, and then became a partner. In 2009 I left the firm and started my own firm: Robichaud’s Criminal Defence Litigation.</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">I never expected to be working in this profession. I use the term “profession” instead of “job” as a profession is an integral part of a person’s life that in large part defines who they are, whereas a job implies something that is temporary and done solely for the sake of an income – a person would never survive as a lawyer if they considered their work a job, instead of a profession. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">Now that I am doing what I am doing, I cannot imagine doing anything else. I love getting up in the morning and going to court, preparing defences for my client, fighting for society’s civil liberties, and making tangible differences in individuals' lives on a day to day frequency. There are few things more gratifying to me than hearing a “not guilty” verdict being read out in a Courtroom, or to hear back from a youth who turned their life around after facing charges that were managed in a way that allowed them to do so. Every day as a defence lawyer has a different reward in different ways.</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">6. How many jobs did you have before this one? What were they and how did these experiences prepare you for your current job?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">Several jobs have contributed in their own ways to my present life perspective, and my success in my present profession. They include: general labourer, retail salesperson, campus security guard, rock climbing instructor, river guide / trip leader, and bungee jumpmaster. The skills learned include, but are not limited to: work ethic, public speaking, negotiation, psychology of crime, business operation, and most importantly, the ability to put aside one’s fears in any situation to deal with issues in a calm, collected, and professional manner. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><b><i><span lang="EN-GB">7. Did you need any specific education or training in order to qualify for your current job? If so, what was it? If not, what skills or education do you wish you had? How did you get that education and training?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">Yes, absolutely. The education for a lawyer is significant and difficult, but very rewarding. To become a lawyer an individual requires:</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt;"><span lang="EN-GB">a) University degree (3 to 4 years);</span></div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt;"><span lang="EN-GB">b) Law degree (3 years);</span></div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt;"><span lang="EN-GB">c) Articling with an accredited principal (1 year); and,</span></div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt;"><span lang="EN-GB">d) Bar admissions exams.</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">In addition to that education, the Law Society of Upper Canada requires continuing legal education with a minimum amount of professional development each year. In addition to the continuing legal education I am presently enrolled in, I am also working towards obtaining my Masters in Law (LL.M.) through Osgoode Law School.</span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">8. What do you enjoy most about your work and what do you find most challenging?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">There are countless reasons I love my profession as a lawyer, and in particular a criminal defence lawyer. Practicing as a lawyer is often described as a “noble profession” as it strives to make a better society for everyone on a day-to-day basis. With law, you can argue against laws that you feel are unjust, uphold rights and liberties, or even seek to modify existing or create laws that ought to be in place. The law applies to all aspects of life from driving to school in the morning, how teachers are allowed to treat the students, how students are required to treat teachers, what televisions stations are permitted to broadcast, what music you are allowed to download or copy, and every corner of our every day living. There is virtually nothing you can think of in our daily living that the law does not apply to in some manner or another. Therefore, no matter what your interests, the law can apply to that and you can always stay intrigued. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">As a criminal defence lawyer in particular, you are often the last defence between the State and the individual, between rights and tyranny, between what a person is allowed to do within the state, and what the state is allowed to do to that person. What is most challenging is also what is most rewarding and that is every action you do as a lawyer as serious consequences on society in general, your client, the rights we share, and the future for us all. Having a rewarding decision on an important case can be very gratifying, but the converse of losing one can be very disheartening – and therefore I strive to keep those low moments to an absolute minimum (so far, so good). </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">9. If you could give one piece of advice to high school students about planning their careers, what would it be? Be specific.<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">Above all, enjoy what you do. It is very difficult to be successful at anything in life if you don’t enjoy it. If you love your profession, hard work is gratifying. With hard work you may become the best in your profession and once that happens you will be live a comfortable life – both financially and as a matter of personal satisfaction. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">10. What would you have done differently in high school, knowing what you know now about careers and work experience?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">I would have learned another language, particularly our other official language of French. Aside from that, I don’t have many regrets. I didn’t do exceptionally well as a high school student as my interests were more in being a youth and there is nothing wrong with that. As long as you have good enough marks to get into the doors of opportunity you desire, the difference between grades is relatively insignificant in the long run in your career. No judge has ever asked me what I grade I got on my grade 10 chemistry class (thank goodness). </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">11. What abilities and skills would you give to high school students wanting to become your career? Be specific<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">The ability to think critically, the ability to challenge and question the accepted norm or rule in an objective and well reasoned manner. A change to the prevailing authority or rule requires more than simply refusing to accept it – it requires persuasion and advocacy. If you wish to be a litigator, public speaking abilities are essential. If you wish to be a solicitor, research skills are required. However, as mentioned, the law applies to all areas of life and therefore almost all skills can be accommodated as a lawyer in one way or another. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica; margin-left: 36pt; text-indent: -36pt;"><b><i><span lang="EN-GB">12. What inspired you or made you decide to become what you are today? Do you ever regret it?<o:p></o:p></span></i></b></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div class="MsoNormal" style="font-family: Helvetica;"><span lang="EN-GB">It’s difficult to reduce significant influences or inspirations to a few areas. Inspiration or influence can come from any source, on any day, and in ways that often go unnoticed. Sometimes the most important decisions we make are made without us realizing how significant they are. However, I can say with certainty that I don’t regret choosing to live my life as a lawyer and will likely continue practicing until the end of my days. </span></div><div class="MsoNormal" style="font-family: Helvetica;"><br />
</div><div style="font-family: Helvetica;"><br />
</div><div style="font-family: Helvetica;">Sean Robichaud</div><div style="font-family: Helvetica;">Barrister & Solicitor</div><div style="font-family: Helvetica;">416.220.0413</div><div style="font-family: Helvetica;"><a href="http://www.robichaudlaw.ca/">www.robichaudlaw.ca</a></div><div><br />
</div>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-46127185971788295422010-09-26T20:41:00.002-04:002010-09-30T17:34:53.550-04:00Bill C-25: “Getting Tough” on Civil Liberties?<h5><a href="http://www.flickr.com/photos/25813477@N07/4090247829/" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;" title="Kilmainham Jail by James C Farmer, on Flickr"><img alt="Kilmainham Jail" height="265" src="http://farm3.static.flickr.com/2543/4090247829_ccbda0921d.jpg" width="400" /></a><a href="http://www.flickr.com/photos/25813477@N07/4090247829/" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;" title="Kilmainham Jail by James C Farmer, on Flickr"><br />
</a><span lang="EN-US"><strong><em>Anna Stuffco, B.A., J.D.</em></strong></span></h5><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US"></span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US"></span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US">In February of this year, our present government enacted Bill C-25. The bill, which targets pre-sentencing custody, severely impedes the ability of people awaiting trial to seek acknowledgement of their “pre-sentencing” incarceration, vis-à-vis a “time credit” toward their eventual sentence. To put it bluntly: if you are charged with a crime, have a criminal record and are denied bail, the time you will spend awaiting trial will only count at par toward the sentence you are given. Previously, pre-sentence custody time was assigned a premium in recognition of the fact <i style="mso-bidi-font-style: normal;">those awaiting trial had not yet been convicted of anything.</i> Under the new legislation, and only in “exceptional cases” will an additional half measure be added to pre-trial custody. </span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US"> <br />
</span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US"> What’s so bad about that? Well for starters, the Canadian Constitution presumes one is innocent until proven guilty. The aims of justice cannot be served in reverse; one cannot be charged with an offence and held in custody as they await trial, only to be found not guilty when that trial date finally comes around, and be released. What, then, happens to the year of one’s life spent in jail for a crime they were acquitted of? If found guilty, any pre-sentence custody time would be doubled and debited from the sentence imposed to reflect this idea. Not anymore. In some cases, bail is justifiably denied and the body of jurisprudence is well established in this area. However, that isn’t the primary concern here. What is alarming about this legislation are the subversive effects its ratification will have upon Aboriginal and disadvantaged accuseds. </span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US"> <br />
</span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US">The Conservative government has made “getting tough on crime” a pillar of their campaign. Indeed, almost every Canadian would agree that criminal activity is harmful to and undesirable for a western democracy such as ours. However, it is this colloquially termed “Truth in Sentencing Act” that is harmful – not only to those with criminal records who are directly effected by it – to our society as a whole. </span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US"> <br />
</span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US">Having just graduated from Law School, on the West coast at that, I find these measures completely miss the mark if the aim is to reduce crime rates; Statistics Canada has reported crime rates are falling across the board. <span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span lang="EN-US" style="font-family: Cambria, serif; font-size: 12pt;">[1] </span></span></span>Crime is almost always a reaction to socio-economic factors that plague certain groups more than others. Incarceration, or the ability of the state to punish those who violate our common sense of what is right and what is wrong, exists to sanction criminal activity. And of course, justice requires discipline for social deviance. However, rehabilitation, reduction of recidivism through education, and eventual reintegration are supposed to be the goals of incarceration through the implementation of appropriate sentencing principles. Retribution and punishment have been dwindling in importance and have been viewed as impotent measures through which to achieve the principles of sentencing, since Victorian England. </span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US"> <br />
</span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US">Much has been made in the media about the considerable financial toll this legislation will place on Canadian taxpayers, already over burdened by financial recession and cuts to social spending: </span></div><div class="MsoNormal" style="margin-left: 36pt; text-align: justify;"><span lang="EN-US" style="font-size: 11pt;"> <br />
</span></div><div class="MsoNormal" style="margin-left: 36pt; text-align: justify;"><span lang="EN-US"><span class="Apple-style-span" style="font-family: inherit;"><span class="Apple-style-span" style="font-size: small;">Kevin Page, the Parliamentary Budget Officer, … [estimates] that the costs to run the federal and provincial jails, now at $4.4-billion a year, will rise to $9.5-billion by 2015-16. Sixty per cent of the extra costs, or $3.1-billion a year, would be borne by the provinces.</span></span><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span lang="EN-US"><span class="Apple-style-span" style="font-family: inherit;"><span class="Apple-style-span" style="font-size: small;">[2]</span></span></span></span></span><span class="Apple-style-span" style="font-family: inherit;"><span class="Apple-style-span" style="font-size: small;"> <o:p></o:p></span></span></span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify;"><span lang="EN-US"> <br />
</span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify;"><span lang="EN-US">Despite how obviously fiscally irresponsible, the financial aspect of this legislation is just the tip of the iceberg. </span>What concerns me more is the reality that over-incarceration doesn’t work; the more you lock people up, deprive them their liberty, put them into jail and force them to experience the horrific monotony of prison life and dehumanize them, the less likely they are to have been rehabilitated, to be remorseful of the act for which they were incarcerated, and to reintegrate into Canadian society upon their release.</div><div class="MsoNormal" style="line-height: 150%; text-align: justify;"><br />
</div><div class="MsoNormal" style="line-height: 150%; text-align: justify;"><span lang="EN-US"> Further, it is widely acknowledged that poor and Aboriginal accused spend far more time in custody than their white, privileged counterparts. Those without access to good legal representation, or the ability to advocate for their rights, are more likely to plead guilty to an offence (often a result of intimidation by the judicial process, unavailability of resources and a lack of knowledge surrounding the justice system in general), which in turn leaves them with more entries on their criminal record, which is an important factor in deciding if one receives bail on any subsequent charges, and leads to their detention more often than those who plead not guilty. Thus Aboriginal and poor accused will spend more time in custody awaiting trial, due in part to socio-economic contributors outside their control, will not be credited with double time for that pre-trial custody, and will ultimately spend more time incarcerated than other classes of accused persons. </span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify;"><span lang="EN-US"> <br />
</span></div><div class="MsoNormal" style="margin-left: 36pt; text-align: justify;"><span lang="EN-US"><span class="Apple-style-span" style="font-family: inherit;"><span class="Apple-style-span" style="font-size: small;">In Manitoba, 69 per cent of the prison population is aboriginal, compared with 12 per cent of the general population. (Similarly depressing numbers exist in Saskatchewan: 81 per cent of the inmates are aboriginal, compared with 11 per cent for the general population. In Alberta, it’s 35 per cent to 3 per cent and, in B.C., 21 per cent to 4 per cent.)</span></span><a href="file:///C:/Users/Sean%20Robichaud/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/UH27FWG4/Bill%20c-25.docx#_ftn3" name="_ftnref3" title=""><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span lang="EN-US"><span class="Apple-style-span" style="font-family: inherit;"><span class="Apple-style-span" style="font-size: small;">[3]</span></span></span></span></span></a><span class="Apple-style-span" style="font-family: inherit;"><span class="Apple-style-span" style="font-size: small;"><o:p></o:p></span></span></span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify;"><span lang="EN-US" style="line-height: 150%;"> <br />
</span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify;"><span lang="EN-US" style="line-height: 150%;">Aboriginals and other minority groups, of which poor Canadians are apart, are thus duly discriminated against by this legislation. First, they are more likely to be denied bail, and second, will not end up receiving the benefit of 2 for 1 pre-trial custody time credited against the sentence received. <o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US" style="line-height: 150%;"> <br />
</span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US" style="line-height: 150%;">Most Canadians agree that crime is bad: it tears apart lives, families and communities. However, fiscally reckless legislation, which does nothing to address the reasons for crime and wholly ignores the widely accepted reality that over-incarceration is a harmful, ineffective, socially burdensome and dehumanizing practise, is not the answer – especially when that legislation does not have uniform application. Further marginalizing Aboriginals and other poor Canadians through such discriminatory legislation is wholly unhelpful at any stage of the criminal justice process.<o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US" style="line-height: 150%;"> <br />
</span></div><div class="MsoNormal" style="line-height: 150%; text-align: justify; text-indent: 36pt;"><span lang="EN-US" style="line-height: 150%;">The projected $9.5 billion dollars would be far better spent on increasing social programs in poor communities and on reserves that target the reasons why crime is committed in the first place. Within jails, increasing the availability of counseling services and educational programs, focusing on rehabilitation and not retribution and punishment as the reason for incarceration, and giving inmates the opportunity to build their skill set would surely see eventual reintegration into society as a tangible goal and ultimately further the entire point of this legislation, which is the reduction of crime rates. <o:p></o:p></span></div><div style="mso-element: footnote-list;"><br />
<hr align="left" size="1" width="33%" /><div id="ftn1" style="mso-element: footnote;"><div class="MsoFootnoteText"><a href="file:///C:/Users/Sean%20Robichaud/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/UH27FWG4/Bill%20c-25.docx#_ftnref1" name="_ftn1" style="mso-footnote-id: ftn1;" title=""><span class="MsoFootnoteReference"><span lang="EN-US" style="font-size: 10pt;"><span class="MsoFootnoteReference"><span lang="EN-US" style="font-family: Cambria, serif; font-size: 10pt;">[1]</span></span></span></span></a><span lang="EN-US" style="font-size: 10pt;"> Statistics Canada reports crime rates fell 3% in 2009, and 17% from 1999: </span><span lang="EN-US"><a href="http://www.statcan.gc.ca/daily-quotidien/100720/dq100720a-eng.htm"><span style="font-size: 10pt;">http://www.statcan.gc.ca/daily-quotidien/100720/dq100720a-eng.htm</span></a></span><span lang="EN-US" style="font-size: 10pt;">. <o:p></o:p></span></div></div><div id="ftn2" style="mso-element: footnote;"><div class="MsoFootnoteText"><a href="file:///C:/Users/Sean%20Robichaud/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/UH27FWG4/Bill%20c-25.docx#_ftnref2" name="_ftn2" style="mso-footnote-id: ftn2;" title=""><span class="MsoFootnoteReference"><span lang="EN-US" style="font-size: 10pt;"><span class="MsoFootnoteReference"><span lang="EN-US" style="font-family: Cambria, serif; font-size: 10pt;">[2]</span></span></span></span></a><span lang="EN-US" style="font-size: 10pt;"> Editorials, “</span><span lang="EN-US" style="font-size: 10pt;">Truth in sentencing must come with truth in spending”,</span><i style="mso-bidi-font-style: normal;"><span lang="EN-US" style="font-size: 10pt;"> The Globe and Mail</span></i><span lang="EN-US" style="font-size: 10pt;">, updated September 25, 2010: </span><span lang="EN-US"><a href="http://www.theglobeandmail.com/news/opinions/editorials/truth-in-sentencing-must-come-with-truth-in-spending/article1613974/"><span style="font-size: 10pt;">http://www.theglobeandmail.com/news/opinions/editorials/truth-in-sentencing-must-come-with-truth-in-spending/article1613974/</span></a></span><span lang="EN-US" style="font-size: 10pt;">. </span></div></div><div id="ftn3" style="mso-element: footnote;"><div class="MsoFootnoteText"><a href="file:///C:/Users/Sean%20Robichaud/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/UH27FWG4/Bill%20c-25.docx#_ftnref3" name="_ftn3" style="mso-footnote-id: ftn3;" title=""><span class="MsoFootnoteReference"><span lang="EN-US" style="font-size: 10pt;"><span class="MsoFootnoteReference"><span lang="EN-US" style="font-family: Cambria, serif; font-size: 10pt;">[3]</span></span></span></span></a><span lang="EN-US" style="font-size: 10pt;"> Jeffery Simpson, “The true costs of ‘truth in sentencing’”, <i style="mso-bidi-font-style: normal;">The Globe and Mail</i>, September 26, 2010.<o:p></o:p></span></div></div></div>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-5031755579513414352010-09-30T17:29:00.001-04:002010-09-30T17:29:38.905-04:00Fear Mongering in the Legalization of Prostitution in Canada<div style="text-align: left;"><a href="http://www.flickr.com/photos/liqueur/3263253868/" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;" title="Red Light District by Liqueur Felix, on Flickr"><span class="Apple-style-span" style="font-family: inherit;"><img alt="Red Light District" height="146" src="http://farm4.static.flickr.com/3495/3263253868_ef6fd8682e_m.jpg" width="240" /></span></a></div><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: inherit;">- </span><b><i><span class="Apple-style-span" style="font-family: inherit;">Anna Stuffco, B.A., J.D.</span></i></b></span><br />
<span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: inherit;"><br />
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<span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: inherit;">Fear mongering is destructive, misleading and causes unnecessary social hysteria. Certain Canadian media outlets and Members of Parliament are more guilty than others when it comes to drumming up emotion in the court of public opinion. Yesterday’s decision by Ontario Superior Court Justice Himel to strike down provisions of the </span></span><span class="Apple-style-span" style="line-height: 24px;"><i><span class="Apple-style-span" style="font-family: inherit;">Criminal Code</span></i></span><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: inherit;"> as unconstitutional unleashed a wave of public madness across the country, fueled in part by fear mongering.</span></span><br />
<div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">What has been fascinating to observe in this debate is the replacement of sociological evidence with haughty scare tactics used by the media, MPs and the public when discussing this issue and its potential outcomes. For an articulation of my point, see the below quote from today’s </span><i><span class="Apple-style-span" style="font-family: inherit;">Globe and Mail</span></i><span class="Apple-style-span" style="font-family: inherit;">:<o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;"><br />
</span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">The ruling also left police confused and neighbourhoods fortifying to fend off a possible deluge of sex-trade workers.</span><a href="http://www.blogger.com/post-create.g?blogID=26542145#_ftn1" name="_ftnref" title=""><span class="MsoFootnoteReference"><span class="Apple-style-span" style="font-family: inherit;">[1]</span></span></a><span class="Apple-style-span" style="font-family: inherit;"><o:p></o:p></span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">A possible deluge… really? A </span><i><span class="Apple-style-span" style="font-family: inherit;">deluge</span></i><span class="Apple-style-span" style="font-family: inherit;">? This is precisely the type of journalistic exaggeration that does nothing to foster informed discussion and punctures the veil of civility which ought to protect public discourse on potentially sensitive issues such as this one. <o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">What concerns me, though, is how this brand of illogical approach to the discussion of an issue influences public opinion. People seem to be mistaken about the pragmatic implication of this decision. Reading reader comments on various national media websites, hearing the reaction of certain MPs and listening to the discussions being held by rank and file Canadians has lead me to conclude one major thing: the entire country has constructed a straw man. A logical fallacy is being committed every time this decision is misunderstood and reacted to by those who perceive it as paving the way for Canada’s inclusion in the international ranks of prostitution safe-havens:<o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;"><br />
</span></div><div class="MsoNormal" style="margin-left: 36.0pt; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">“What planet does this judge live on?” asked Lisa Stephens Immen, former chairman [sic.] of an umbrella group of resident associations known as The Neighbourhoods’ Forum. “I hope that all the naive fools who support this ruling will be gifted with the task of picking up the used condoms in their own nice neighbourhoods.”</span><a href="http://www.blogger.com/post-create.g?blogID=26542145#_ftn2" name="_ftnref" title=""><span class="MsoFootnoteReference"><span class="Apple-style-span" style="font-family: inherit;">[2]</span></span></a><span class="Apple-style-span" style="font-family: inherit;"><o:p></o:p></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span style="line-height: 150%;"><span class="Apple-style-span" style="font-family: inherit;">Again, this line of reasoning is fallacious as it sets up a straw man proposition, and then attacks it. It creates the</span></span><span style="line-height: 150%;"><span class="Apple-style-span" style="font-family: inherit;"> “illusion of having refuted a proposition by substituting a superficially similar yet unequivalent [sic.] proposition and refuting that one, without ever having actually refuted the original position.”</span><a href="http://www.blogger.com/post-create.g?blogID=26542145#_ftn3" name="_ftnref" title=""><span class="MsoFootnoteReference"><span class="Apple-style-span" style="font-family: inherit;">[3]</span></span></a><span class="Apple-style-span" style="font-family: inherit;"> What this decision will actually do is alleviate the impact prostitution has on residential communities by allowing its establishment in protected, private areas. If prostitution is legalized, it is more likely that stray condoms will cease to be found in parks and streets because the sexual acts warranting their use will be taking place in lisenced brothels or homes, and not in public places. The public safety aspect of legalizing prostitution is significant not only for those who are directly involved in the sex trade, but by Canadians as a whole. If members of a community do not like finding needles or used condoms in their neighbourhood, the logical response is to support this decision, not attack it with misguided logic based upon unfounded data and public hysteria. </span></span><span class="Apple-style-span" style="font-family: inherit;"><o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">What is also curious about this issue is the misguided sense of social morality being engaged by opponents of Justice Himel’s decision. Striking down these provisions as unconstitutional has nothing to do with morality, it has to do with the Constitutional validity of laws. It isn’t about whether some Canadians, represented by Justice Himel and her decision, want to open the floodgates and allow prostitution and brothels to permeate every community in Canada and flourish therein. It is about applying a legal standard to a piece of legislation, weighing the merits of each side and holding that the law in question violates the </span><i><span class="Apple-style-span" style="font-family: inherit;">Charter</span></i><span class="Apple-style-span" style="font-family: inherit;"> right to life, liberty and security of the person. More importantly, that the law being examined violates </span><i><span class="Apple-style-span" style="font-family: inherit;">Charter</span></i><span class="Apple-style-span" style="font-family: inherit;"> rights to such an extent that it is ruled of no force and effect immediately, articulates the severity of the Constitutional breach. Whether that law aims at regulating certain types of speech, the power of the state to search and detain or the ability of a prostitute to solicit business is immaterial to the overarching Constitutional principles that are engaged by all types of laws, and the scrutiny necessitated by their proclamation.<o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">The public relations campaigns on both sides in this debate are not without their blunders. Framing the decision as a victory for “women’s liberation” by its supporters, and saying it will lead to a rapid influx of human trafficking by those opposed to it, are equally harmful positions to assume. By championing this victory as women being able to choose who they have sex with and when trivializes the actual reasons for the decision. T</span><span style="line-height: 150%;"><span class="Apple-style-span" style="font-family: inherit;">he law was held to be unconstitutional because of the way it forces marginalized, vulnerable women into even more unsafe situations and thus, violates Section 7. By framing the issue in a way that mischaracterizes it as emancipating for women leads one to believe these women have actually had a choice in choosing to prostitute themselves on the street. Sure, some have, but many women working as prostitutes are there because of a culmination of horrible events that have occurred in their lives. It is these lives that are completely under the radar and that s. 213 of the </span><i><span class="Apple-style-span" style="font-family: inherit;">Code</span></i><span class="Apple-style-span" style="font-family: inherit;"> aggravates even further. Contouring this decision as a victory for sexual liberation ignores this victimization and marginalization, and is an extremely perilous view to perpetuate. The reality is that if this case fails at the Supreme Court of Canada in </span><i><span class="Apple-style-span" style="font-family: inherit;">x</span></i><span class="Apple-style-span" style="font-family: inherit;"> number years, the government will then draft a new law that addresses the s. 7 concerns by not forcing these women into the street. Once that law is challenged, it is very unlikely that any judge in the future is going to overturn it because it violates women's sexual freedom. Sexual freedom, and the </span><i><span class="Apple-style-span" style="font-family: inherit;">Charter</span></i><span class="Apple-style-span" style="font-family: inherit;"> right to life, liberty and security of the person are not the same issue.</span></span><span class="Apple-style-span" style="font-family: inherit;"><o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">Justice Himel didn’t impugn this legislation because she wants young women to see prostitution as a desirable “career choice” (yet another straw man that wholly misses the legal points at issue in this case). She did so because people who work in the sex trade need to be protected. All we need to do to see the urgency in this is look to the ease with which serial killer Robert Pickton preyed upon vulnerable women who worked as prostitutes in Vancouver’s downtown Eastside; or, the over 300 missing women in Alberta whose disappearances are still unexplained and who worked and lived on the street.</span><a href="http://www.blogger.com/post-create.g?blogID=26542145#_ftn4" name="_ftnref" title=""><span class="MsoFootnoteReference"><span class="Apple-style-span" style="font-family: inherit;">[4]</span></span></a><span class="Apple-style-span" style="font-family: inherit;"> What this decision says is that these lives are important; that the justice system and parliament and Canadians as a whole cannot continue to ignore and marginalize women because they live in absolute poverty and work on the street. By continuing to force them into unsafe situations and unsafe conditions, where their bodies are easily taken, used and abused, seemingly without consequence, Canada has repeatedly affirmed these lives aren’t worth protecting. Well, not anymore. <o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">Analogous to the InSite debate (the safe injection site in Vancouver’s downtown east side), the aim of striking down prostitution legislation is </span><i><span class="Apple-style-span" style="font-family: inherit;">harm reduction</span></i><span class="Apple-style-span" style="font-family: inherit;">. It’s not about sanctioning certain types of conduct that have been historically labeled as amoral or wrong; it’s about realizing the complete impossibility of governments and societies to rid themselves of drugs and people who want to buy sex, and taking the responsible approach of constructing ways to legislate around these social tribulations. Such is the reality of modern society: people are not going to stop using illegal drugs or paying for sexual services, no matter how hard you make it to get, or find, or use, or the penalties you tack on to being caught trying to get, find or use them. <o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">Like InSite, Justice Himel’s ruling has sent conservative-minded Canadians into a blither. Of course one is entitled to their opinion, and certainly no one would ever argue that using intervenes drugs or paying for sex in an alleyway are markers of a good, healthy society. However, the only question I think that is relevant in this debate is, what’s the alternative?<o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">Forcing women onto the margins of society by refusing them access to the protection of the law and society in general does nothing but say certain lives aren’t worth the same as others; that women, often of low socio-economic status, often non-white and Aboriginal, who work in the sex trade don’t deserve our help and protection. At play in this mentality is an overtly patriarchal view of women and a racially intolerant attitude that says these lives aren’t worth protecting because of the discomfort it will cause the hegemonic majority in this country, should we allow prostitutes to operate legally. What, then, do our laws say about how we treat the most vulnerable in our society? How do we begin to fashion our laws in a way that reflects Canadian ideas about equality, justice and social welfare? By having the courage and foresight to strike down legislation that violates our basic ideas of freedom, liberty and equality and by the continued protection of these rights within our just society, as Justice Himel did yesterday. <o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><span class="Apple-style-span" style="font-family: inherit;">And further, and without trying to overly simplify the issue, who cares if people want to pay for sex from other people? As long as its regulated and safety standards are imposed, who really cares? The fascination with the sexual behaviour of complete strangers is an explicable phenomenon that does not pertain to most people’s lives directly. Like Civil Unions, I can’t understand why these issues become such hot button pressure points in social discussion. Anyway, perhaps that discussion is best saved for another day. <o:p></o:p></span></div><div class="MsoNormal" style="line-height: 150%; mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;"><br />
</div><div style="mso-element: footnote-list;"><span class="Apple-style-span" style="font-family: inherit;"><br clear="all" /></span> <hr align="left" size="1" width="33%" /> <div id="ftn"> <div class="MsoFootnoteText"><a href="http://www.blogger.com/post-create.g?blogID=26542145#_ftnref" name="_ftn1" title=""><span class="MsoFootnoteReference"><span class="Apple-style-span" style="font-family: inherit;">[1]</span></span></a><span class="Apple-style-span" style="font-family: inherit;"> Makin, Kirk. “Police, communities struggle to grasp prostitution ruling”, </span><i><span class="Apple-style-span" style="font-family: inherit;">The Globe and Mail</span></i><span class="Apple-style-span" style="font-family: inherit;">, September 30, 2010, </span><a href="http://www.theglobeandmail.com/news/politics/police-communities-struggle-to-grasp-prostitution-ruling/article1733812/"><span class="Apple-style-span" style="font-family: inherit;">http://www.theglobeandmail.com/news/politics/police-communities-struggle-to-grasp-prostitution-ruling/article1733812/</span></a><span class="Apple-style-span" style="font-family: inherit;">. </span></div></div><div id="ftn"> <div class="MsoFootnoteText"><a href="http://www.blogger.com/post-create.g?blogID=26542145#_ftnref" name="_ftn2" title=""><span class="MsoFootnoteReference"><span class="Apple-style-span" style="font-family: inherit;">[2]</span></span></a><span class="Apple-style-span" style="font-family: inherit;"> </span><i><span class="Apple-style-span" style="font-family: inherit;">Ibid.</span></i></div></div><div id="ftn"> <div class="MsoFootnoteText"><a href="http://www.blogger.com/post-create.g?blogID=26542145#_ftnref" name="_ftn3" title=""><span class="MsoFootnoteReference"><span class="Apple-style-span" style="font-family: inherit;">[3]</span></span></a><span class="Apple-style-span" style="font-family: inherit;"> Pirie, Madsen. </span><i><span class="Apple-style-span" style="font-family: inherit;">How to Win Every Argument: The Use and Abuse of Logic</span></i><span class="Apple-style-span" style="font-family: inherit;">. January 2007, UK: Continuum International Publishing Group. <o:p></o:p></span></div></div><div id="ftn" style="mso-element: footnote;"> <div class="MsoFootnoteText"><a href="http://www.blogger.com/post-create.g?blogID=26542145#_ftnref" name="_ftn4" title=""><span class="MsoFootnoteReference"><span class="Apple-style-span" style="font-family: inherit;">[4]</span></span></a> </div></div></div><!--EndFragment-->Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-86725175520846791572010-05-08T12:11:00.003-04:002010-05-09T20:24:49.482-04:0010 Tips for Being a Surety at a Bail HearingIt is every parent's worst nightmare: the phone rings late at night and the somber tone of the caller advises, "Mrs. Johnson, this is you son's lawyer. He is under arrest requires a surety for a bail hearing tomorrow morning". <br />
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As a criminal defence lawyer, I'm often that serious sounding voice on the other line at 3:00 a.m. I am the person who gets to make that call to sleepy individuals that my client has provided me the phone number for when asked "Who do you know that would be able to bail you out tomorrow, <i>and </i>who would make a good surety?" I emphasize the "and" because it is easy for clients to provide names and numbers for people who are available, but quite another to give me leads on who will be a suitable surety. <br />
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First of all, what is a "surety"? To begin with, it is not an "assurety" as there is no such thing in the law. I think that people often hear "Would you like to be <i>a surety" </i>and join the two words into one. So, starting with that, a "surety" is, in its simplest terms: 1) Someone who is going supervise the accused in the community while awaiting for trial or until the matter resolves; and, 2) Someone who is willing to make a pledge for value (i.e. equity in a home, savings, cash, etc.) to the Court, which, in turn may be lost if the individual breaches the bail.<br />
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Although this sounds simple enough, pledging oneself as a surety is a serious and involved commitment. This article does not intend to explain everything about <i>being </i>a surety, it is intended to help individuals present themselves better in Court so that they have a better chance of being approved as one. <br />
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So here they are, Sean Robichaud's <b>"Ten Tips for Potential Sureties"</b>:<br />
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<b>1) Dress appropriately</b><br />
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I wish I didn't have to tell people not to wear excessive jewelry<i> </i><i>a la</i> Mr. T., "stop snitching" T shirts, marijuana leaf sweaters, red and gold suits, tight white tank tops, and revealing clothing that would make Lindsay Lohan blush to Court, BUT, I do: so dress appropriately. Your ability as a surety will be judged on your appearance that conveys your level of respect to the Court, it is that simple.<br />
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<b>2) Take it seriously</b><br />
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Your actions or inactions, preparation or lack thereof, could determine whether young Johnny spends the next 12 months in custody, or gets out today. It is a serious proceeding with serious consequences. Take the day off work, be well rested, meet with the lawyer prior to, be on time, ask questions of counsel, and anything else you would normally do to prepare yourself for something where they stakes are high and subject matter is serious.<br />
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<b>2) Understand what it means to be a surety. </b><br />
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Prior to the bail hearing, your lawyer or duty counsel should advise you of everything it means to be a surety so you can answer the questions put to you by the Crown and Court. You need to understand what sort of commitment you are getting yourself into, what to do if the person breaches the bail, how long it might take, how to revoke bail, and so on. Ask questions of counsel and know the answers.<br />
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<b>3) Think about the plan of supervision and be capable of articulating it</b><br />
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With a pen and piece of paper, write out the schedule you have planned for supervising the accused. Who is going to watch him when you have book club on Wednesday evenings? Are other people helping and do those people know they are? It is called a "<i>plan</i> of supervision" and not an "ephemeral notion of watching an accused" for a good reason. Plan it and put it to writing.<br />
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<b>4) Know the accused</b><br />
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Question: "Madam, how old is the accused?"<br />
Answer: "I don't know"<br />
Question: "Are you aware he has a 2 page criminal record?"<br />
Answer: "Oh really? Oh, well I guess that is ok"<br />
Question: "Do you know where he has been living for the past 5 years?"<br />
Answer: "No idea, he doesn't tell me anything"<br />
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Obviously this is a bail hearing that is not going well. Know the accused, know the charges, know his record, know everything you can about him because you will be asked.<br />
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<b>5) Be candid and truthful in your testimony</b><br />
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A surety caught lying on the stand can virtually guarantee the accused is not getting out that day. Similarly, being evasive or incredible in your testimony may have the same effect. Answer the questions truthfully, accurately, completely, and to the best of your ability. Let the lawyer deal with the bad facts, but do not shy away from them.<br />
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<b>6) Don't use slang while testifying</b><br />
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Police are "police officers", not "cops", "5-0", "feds", etc. No one in the Court appreciates your knowledge of street lingo. Court is a formal setting which includes formal language.<br />
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<b>7) Bring documentation to prove claims of equity and savings; </b><br />
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If you are making a claim that you own a home worth $300,000.00, the Court would be very interested to see documentation to prove that. It saves a trip back home when asked to prove your assertions of net worth.<br />
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<b>8) Do not argue or be rude with the Court or Crown Attorney</b><br />
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You are not the lawyer. Your role is not to argue, defend yourself, or the accused. If the Crown is excessively or unfairly rude with you, then it may very well give you some sympathy with the Court. Arguing back gets you nowhere and will only be helpful to the Crown's assertion later on that you are not a suitable surety. Of course you are entitled to correct false assertions, mischaracterizations, and any other discrepancies that you see - do so confidently and professionally, not argumentatively.<br />
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<b>9) Don't be oblivious to the accuseds' behaviour or try to justify his alleged actions</b><br />
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If the police allegations are that two police officers walked into a bank that your son was robbing at the time, restrained him, and subsequently arrested him, it is not helpful to advise the Court there must be some mistake as little Johnny would never do such a thing. Bail hearings are not the time and place to try and demonstrate innocence, whether the victim is partially to blame, or whether you believe the allegations. The Crown usually has the advantage at this stage as the police are the one who get to write the narrative that is read out in Court. You were not there, you do not know what happened. Similarly, individuals are capable of all sorts of things that we never would have dreamed they had the capacity to do. There are allegations, you do not have to give them more credit than that, but do not try to minimize them either.<br />
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<b>10) Hire a criminal defence lawyer</b><br />
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Like all legal proceedings, it is a dynamic situation that requires skilled advocacy, thorough legal knowledge, familiarly with the proceedings, and experience to understand when it is best to proceed and when it is best to wait for another day. A person only gets one chance at a bail hearing (short of an appeal in Superior Court), make sure the first one is done properly.<br />
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<i>Sean Robichaud can be reached at (416) 220-0413 to provide legal assistance for any bail hearings in Ontario</i>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-14576443266008975212010-02-20T11:43:00.001-05:002010-02-20T11:43:01.519-05:00Restrictions on pre-sentence credit comes into force<p>As of Monday, February 22, 2010, the new rules on what, if any, credit may be given to pre-sentence custody comes into effect across Canada.  A summary of the enactment, as found on the <a href="http://www2.parl.gc.ca/Sites/LOP/LegislativeSummaries/Bills_ls.asp?lang=E&ls=c25&source=library_prb&Parl=40&Ses=2#newrules">Parliament of Canada website</a>, are as follow: </p> <blockquote> <h4>Description and Analysis</h4> <h5><a name="judicialrelease"></a>A. Judicial Release (Clause 2)</h5> <p>At the bail hearing, a judge may order that an accused who has a criminal record be placed in pre-sentencing custody.(<a href="http://www2.parl.gc.ca/#fn20">20</a>) Clause 2 of the bill provides that the judge must then state that reason in the record. This provides the judge who later sentences the person with the reason for the pre-sentencing custody order, and (under clause 3 of the bill) prevents the judge from allowing more than one day’s credit for one day in pre-sentencing custody.</p> <h5><a name="credit"></a>B. Credit for Pre-sentencing Custody Provided in the Bill</h5> <h6><a name="limits"></a>1. Limits on Credit for Pre-sentencing Custody (Clause 3)</h6> <p>Clause 3 of the bill restricts judicial discretion by setting maximum limits on credit for pre-sentencing custody. A judge who sentences someone after conviction still has the discretion to allow or deny credit for pre-sentencing custody and to determine how much credit will be allowed, without exceeding the maximum set by the bill.</p> <p>In general, the bill changes the two days for one currently credited to one day for one, that is, it limits the credit for pre-sentencing custody to a maximum of one day for each day spent in pre-sentencing custody (new section 719(3) of the Code). That maximum applies to all cases in which the accused was in pre-sentencing custody because of his or her criminal record(<a href="http://www2.parl.gc.ca/#fn21">21</a>) or breach of conditions of release on bail, including the commission of a criminal offence (new sections 719(3) and 719(3.1) of the Code).</p> <p>The bill also provides for more credit to be given – a maximum of one and one-half days for each day spent in pre-sentencing custody – but only “if the circumstances justify it” (new section 719(3.1) of the Code). However, it gives no examples of the kind of circumstances in question.</p> <p>By reducing the credit allowable for pre-sentencing custody, the bill will probably result in the imposition of longer sentences.</p> <h6><a name="reasons"></a>2. Mandatory Reasons and Statement of Reasons in the Record (Clause 3)</h6> <p>Clause 3 of the bill provides that a judge who decides to allow credit for pre-sentencing custody must give reasons for the decision and state those reasons in the record (new section 719(3.2) of the Code). Other matters that the judge must state include the amount of time credited (e.g. one day for one day credit), the sentence actually imposed and the term of imprisonment that would have been imposed if credit had not been given for pre-sentencing custody (new section 719(3.3) of the Code).</p> <p>Although studies tend to show that judges commonly give two days’ credit for each day of pre-sentencing custody, judges currently have complete discretion as to whether to grant any credit and as to the amount of time to be allowed, taking the circumstances of each case into consideration. At present, however, there are no data concerning how judges apply credits for pre-sentencing custody to the sentences they impose. We do not know how common the practice is, or what the total length of sentences of incarceration imposed is. In addition, official sentencing statistics do not reflect time served in pre-sentencing custody, and this may give the impression that total sentences imposed at sentencing are less harsh than they are in reality. This means that the statistics do not give a true picture of the total sentence, and in some cases this may contribute to the idea some people have that the justice system is too soft on offenders found guilty of violent crimes. This incomplete picture of the sentences imposed by the courts may also undermine public confidence in the administration of justice.</p> <p>The requirement that the judge state the amount of time credited and the term of imprisonment that would have been imposed had the individual not been incarcerated during the judicial proceedings may show that a fair and appropriate sentence for the offence was imposed by the judge. The requirement that the judge justify allowing credit of more than one day for one day in pre-sentencing custody may provide a more accurate picture of how the sentence fits the crime.</p> <h6><a name="newrules"></a>3. Application of the New Rules (Clause 5)</h6> <p>As a final point, it is important to note that the new rules governing credit for pre-sentencing custody will apply only to persons charged after the bill comes into force.</p></blockquote> Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-3914900461223817952010-01-24T18:30:00.001-05:002010-01-24T18:31:55.457-05:00Legal Aid Boycott Comes to an End in Ontario<p>According to the Toronto Star and various other sources, <a href="http://www.thestar.com/news/ontario/article/755195--deal-reached-to-end-legal-aid-boycott?bn=1">“The Ontario government and the Criminal Lawyers' Association say they have reached an agreement to end a boycott over legal aid payments.”</a></p> <p>The highlights include: </p> <ul> <li>40.5 % increases to the tariff for all tier levels by April 1, 2015 </li> <li>a new "big case" tier, effective February 1, 2010, to be increased by 66% by April 1, 2015 </li> <li>10% increases to the standard case tariffs for certificates issued on or after April 1, 2010 </li> <li>30% increase to the top level tariff for "big cases", effective for certificates issued on or after April 1, 2010 </li> <li>elimination of the 25% reduction for fees paid to junior lawyers on "big cases" </li> <li>block fees for standard criminal cases reflecting both the higher tariff amounts and 50% of the average discretionary increase to current tariff awards </li> <li>a dedicated LAO fund to increase the fees available for defence experts </li> <li>a commitment of LAO funds to facilitate more mentoring of junior lawyers </li> <li>a commitment from the Attorney General and LAO to sit down with the Association's representative on or before April 1, 2015 to discuss the future of legal aid </li> </ul> <p>It is always difficult to understand the actual implications and implementation of agreements like these at such early stages; however, it is comforting to see that the Ontario government has dealt with the issue in good faith.  </p> <p>From a defence lawyer’s perspective, it is nice to have closure to this issue and to now return to accepting certificates for serious offences like homicides.  It was disheartening over the past several months to have to refuse cases for new and former clients.  With the end to the boycott, lawyers can once again provide the high quality legal services that Ontarians have come to expect and deserve. </p> <p>I would like to personally thank former CLA president Frank Addario and all those who dedicated their time and skills to this very noble end. </p> Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-3880576430858245702009-07-06T18:21:00.001-04:002009-07-06T18:21:55.432-04:00What is a Conditional or Absolute Discharge in Canadian Law?<p><a href="http://lh4.ggpht.com/_DFg-lBFKmHc/SlJ5AJLJwlI/AAAAAAAACFY/_Xk1cSImDEs/s1600-h/3324047338_62d3edba98%5B5%5D.jpg"><img style="border-bottom: 0px; border-left: 0px; display: inline; margin-left: 0px; border-top: 0px; margin-right: 0px; border-right: 0px" title="3324047338_62d3edba98" border="0" alt="3324047338_62d3edba98" align="right" src="http://lh5.ggpht.com/_DFg-lBFKmHc/SlJ5AnxsHvI/AAAAAAAACFc/QJ-SsjMPQ3s/3324047338_62d3edba98_thumb%5B3%5D.jpg?imgmax=800" width="168" height="320" /></a> When individuals are charged with certain offences like domestic assault, theft, or even drug possession, conditional and absolute discharges are offered by the Crown Attorney as an appropriate sentence for the offence – often followed by probationary periods or terms like PARS, drug rehabilitation, or counselling.  The article below is intended to give the reader a very general understanding of what conditional and absolute discharges mean under Canadian criminal law.  </p> <p>It cannot be stressed enough that no article or text can match the wisdom and advice of an experienced criminal lawyer and if you or someone you know if facing charges, you should contact one immediately to discuss your options.  </p> <p>Under the <em>Criminal Code of Canada</em> there are a wide array of sentences that an individual may receive after they are found guilty.  Those sentences include jail, fines, probation, conditional sentences (house arrest), restitution orders, and discharges. </p> <p>Discharges are the most favourable on the range of sentences because they are no permanent “records” and will either be expunged from the CPIC (RCMP database) after a certain period has passed. </p> <p>There are a few technical facts that one ought to know about discharges: </p> <ul> <li>A judge may impose a discharge for any criminal offence where there is not a specific statutory provision stating otherwise. </li> <li>If a person accepts a Crown offer for a conditional discharge, they are still required to admit facts that would meet the essential elements of the crime and are therefore found guilty by the judge. </li> <li>Although a person is found “guilty”, they are not “convicted”</li> <li>As stated, discharges are removed from certain police databases after a certain period of time</li> <li>If granted a discharge, a person may honestly answer that “They have never been <em><strong>convicted</strong> </em>of a criminal offence”.  However, if asked “Have you ever been <em><strong>found guilty</strong> </em>of a criminal offence?”  the answer would be “Yes”.</li> </ul> <p>The applicable statute that sets out how discharges are to be dealt with is the <em>Criminal Records Act</em>, Chapter C-47, which states: </p> <p> <table border="0" cellpadding="0"><tbody> <tr> <td valign="top" width="107"> <p><a name="Section-6.1"></a><a href="http://laws.justice.gc.ca/fr/C-47/129088.html#Article-6.1">Discharges</a></p> </td> <td valign="top"> <p><b>6.1</b> (1) No record of a discharge under section 730 of the <i>Criminal Code</i> that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if</p> <p>(<i>a</i>) more than <strong><u>one year</u></strong> has elapsed since the offender was <strong><u>discharged absolutely</u></strong>; or</p> <p>(<i>b</i>) more than <strong><u>three years</u></strong> have elapsed since the offender was <strong><u>discharged on the conditions</u></strong> prescribed in a probation order.</p> </td> </tr> <tr> <td valign="top" width="107"> <p>Purging C.P.I.C.</p> </td> <td valign="top"> <p>(2) The Commissioner shall remove all references to a discharge under section 730 of the <i>Criminal Code</i> from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).</p> <p>1992, c. 22, s. 6; 1995, c. 22, s. 17(E).</p> </td> </tr> <tr> <td valign="top" width="107"> <p><a name="Section-6.2"></a><a href="http://laws.justice.gc.ca/fr/C-47/129088.html#Article-6.2">Disclosure to police forces</a></p> </td> <td valign="top"> <p><b>6.2</b> Notwithstanding sections 6 and 6.1, the name, date of birth and last known address of a person who has received a pardon or a discharge referred to in section 6.1 may be disclosed to a police force if a fingerprint, identified as that of the person, is found</p> <p>(<i>a</i>) at the scene of a crime during an investigation of the crime; or</p> <p>(<i>b</i>) during an attempt to identify a deceased person or a person suffering from amnesia.</p> <p>1992, c. 22, s. 6.</p> </td> </tr> </tbody></table> </p> <p>As we can see above, discharges take two forms: a discharge with conditions (i.e. a “conditional discharge”) and a discharge without conditions (i.e. an “absolute discharge”).  </p> <p>With a conditional discharge, the person’s records in CPIC are not expunged until three years after the completion of the terms of the conditions set out in the probation order.  As an example, if a person was granted a conditional discharge on March 1, 2009 with conditions for 12 months (like keep the peace and be of good behaviour), then the date of expunging would be 12 months + 3 years = March 1, 2013. </p> <p>Alternatively, an absolute discharge would be one year after the date the discharge was imposed.  using the same example, the date of expunging would be March 1, 2010. </p> <p>There are also several practical considerations that ought to be taken into account and discussed with your lawyer: </p> <ul> <li>Expunging records from CPIC will not necessarily mean that the police department who made the arrest will necessarily follow the same rules.  Some police forces take the view that they will retain the records regardless of the outcome and may be disclosed in certain circumstances. </li> <li>Different jurisdictions outside of Canada may take a very different view of discharges and not necessarily consider these as pardons like the Canadian law presently does. </li> </ul> <p>It is critically important that before accepting any such offer by the Crown Attorney, and deciding whether a discharge is appropriate for your particular set of circumstances, that you speak to an experienced criminal defence lawyer who can explain in greater detail all the benefits and disadvantages of discharges.  I can be reached at (416) 220-0413 for a consultation or you may visit my website at <a href="http://www.criminallawyerintoronto.ca">www.criminallawyerintoronto.ca</a> for more information. </p> Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-14271113366406167902009-07-05T15:28:00.001-04:002009-07-05T18:22:10.516-04:00The Legal Aid Boycott: What Exactly is Being Boycotted and By Whom?<p> </p> <p><a href="http://lh5.ggpht.com/_DFg-lBFKmHc/SlD-vr06mgI/AAAAAAAACFQ/Xw-YlhUeeh4/s1600-h/2171313087_82951c4fa2%5B9%5D.jpg"><font size="4" face="Cambria"><img style="border-right-width: 0px; display: inline; border-top-width: 0px; border-bottom-width: 0px; margin-left: 0px; border-left-width: 0px; margin-right: 0px" title="2171313087_82951c4fa2" border="0" alt="2171313087_82951c4fa2" align="right" src="http://lh5.ggpht.com/_DFg-lBFKmHc/SlD-wJOUPnI/AAAAAAAACFU/L1_JPWirjhQ/2171313087_82951c4fa2_thumb%5B7%5D.jpg?imgmax=800" width="240" height="100" /></font></a><em><font size="4" face="Cambria">Not to help justice in her need would be an impiety. - Plato</font></em></p> <p><font size="5">S</font>ince the Legal Aid Ontario Boycott implemented by the <a href="http://www.criminallawyers.ca/">Criminal Lawyer’s Association</a> Members and further strengthen by support by the criminal bar at large, there has been wide coverage by media and interest by the public at large.  This issue of of critical importance to our justice system at large; without an equal balance between the participants, there can be no justice.  The entire notion of justice is premised on fairness, equality, and access.  Without proper funding for less fortunate individuals charged with offences, the entire structure of the justice system is unstable and threatens the rule of law at large. </p> <p>In discussing the reasons for accepting the boycott, many have asked me what exactly is being boycotted and by whom.  So to answer those questions, </p> <p>The boycott is as follows: </p> <blockquote> <p>1. Where the lawyer is a member of the LAO ESM panel or is qualified to become a member of the ESM panel, AND</p> <p>2. where the certificate is for the defence of an individual who is charged with</p> <p>(a)   murder or attempted murder, OR</p> <p>(b)   as the result of an investigation by the "guns and gangs" squad and/or is being prosecuted by the "guns and gangs" team, OR (c)  where the certificate is for representation on an appeal against conviction and/or sentence for any of the aforementioned offences, AND</p> <p>3. where the prosecution of the individual is to take place in the one of the following cities or nearby municipalities: Toronto, Thunder Bay, Kingston, Barrie, Sudbury and Hamilton, or, in the case of an appeal, where the trial took place within the aforementioned jurisdictions OR where the lawyer's office is located within one of the aforementioned jurisdictions, AND</p> <p>4. where the individual was arrested on or after the following dates or, in the case of an appeal, where the individual was sentenced on or after the following dates: In the case of Toronto, June 1, 2009, for Thunder Bay and Kingston, June 17, 2009 and for Barrie, Sudbury and Hamilton, July 1, 2009.</p> <p>5. It remains CLA policy that all members should refuse any appointment by a court to act as counsel in any circumstances where fees are to be paid by the Crown at Legal Aid rates (e.g. <em>amicus</em>, <em>O'Connor</em> applications, etc.) in any jurisdiction and in relation to any matter.</p> </blockquote> <p>Here is a collection of all the media releases that I have come across relating to the Legal Aid boycott: </p> <table border="0" cellspacing="1" cellpadding="0" width="400"><tbody> <tr> <td valign="top" width="396"><a href="http://news.guelphmercury.com/News/article/504223"></a> <p><a href="http://news.guelphmercury.com/News/article/504223">Guelph lawyers join Ontario legal aid boycott</a> - Guelph Mercury - Jul 4, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.theglobeandmail.com/news/national/legal-aid-boycott-gathering-strength/article1205100/">Legal aid boycott gathering strength</a> – Kirk Makin, Globe and Mail, July 4, 2009</p> </td> </tr> <tr> <td valign="top" width="396"><a href="http://www.tbnewswatch.com/News/?cid=60301"><b></b></a> <p><a href="http://www.tbnewswatch.com/News/?cid=60301">Legal aid boycott grows</a> TbNewsWatch.com - Jul 3, 2009</p> </td> </tr> <tr> <td valign="top" width="396"><a href="http://www.thespec.com/News/Local/article/593653"></a> <p><a href="http://www.thespec.com/News/Local/article/593653">Lawyers join legal aid boycott</a> Hamilton Spectator - Jul 3, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.thespec.com/News/Local/article/593653">Lawyers join legal aid boycott</a> Hamilton Spectator - Jul 3, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.upi.com/Top_News/2009/06/29/Law-profs-say-Ontario-legal-aid-weak/UPI-91691246303393/">Law profs say legal aid Ontario weak</a> – June 29, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.theglobeandmail.com/news/national/law-professors-support-legal-aid-boycott/article1200141/">Law Professors Support Legal Aid boycott</a> – Globe and Mail, Kirk Makin, June 28, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.intelligencer.ca/ArticleDisplay.aspx?e=1621667">Local lawyers boycotting legal aid</a> - Belleville Intelligencer, June 20</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.theglobeandmail.com/news/national/more-lawyers-join-boycott-of-legal-aid/article1181959/">More lawyers join <em>boycott</em> of <em>legal aid</em> - The Globe and Mail</a>, 16 Jun 2009, Kirk Makin</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.nugget.ca/ArticleDisplay.aspx?e=1614318">Sudbury lawyers to boycott legal aid plan</a> – North Bay Nugget, June 16, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.thewhig.com/ArticleDisplay.aspx?e=1611545">Local lawyers ponder joining boycott</a> – Kingston Whig Standard, June 15, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.thestar.com/news/ontario/article/650650"><font size="1">TheStar.com | <em>Ontario</em> | Lawyers throw weight behind <em>legal aid boycott</em></font></a><font size="1"> – June 14, 2009</font></p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.citizen.on.ca/news/2009/0611/editorial/016.html">Ontario’s Legal Aid impasses requires compromises</a> – Orangeville Citizen, June 11, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.sudburystar.com/ArticleDisplay.aspx?e=1614765">Criminal lawyers protest Legal Aid fees -</a> The Sudbury Star, June 10, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.lawtimesnews.com/200906084797/Headline-News/The-system-is-broken">The System is Broken</a> – Law Times, June 8, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://v1.theglobeandmail.com/servlet/story/LAC.20090606.BLATCH06ART2224/TPStory/TPComment/">Who are they kidding? Lawyers love legal aid</a> – Christie Blatchford, Globe and Mail, June 6, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.cbc.ca/thecurrent/2009/200906/20090603.html">CBC Current Show on Announcement by The Criminal Lawyer's Association to commence boycott</a> – June 3, 2009</p> </td> </tr> <tr> <td valign="top" width="396"> <p><a href="http://www.cbc.ca/canada/toronto/story/2009/06/02/legal-aid.html">Toronto criminal lawyers threaten boycott unless legal aid rates rise</a> – CBC.ca, June 2, 2009</p> </td> </tr> </tbody></table> <p>Support the Legal Aid increase by calling your MPP today. </p> Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-53881460245925755992009-07-03T17:34:00.003-04:002009-07-03T17:36:13.267-04:00Legal Fees: Flat fees vs. Hourly Rates<p>In this week’s Lawyer’s Weekly, <a href="http://www.lawyersweekly.ca/index.php?section=article&volume=29&number=9&article=2">Lonny Babli discusses the advantages of a flat rate billing model versus the hourly rate model</a> that lawyers have traditionally adopted. </p> <p><a href="http://lh6.ggpht.com/_DFg-lBFKmHc/Sk55W9BgcKI/AAAAAAAACFI/P6qBgOW11Ig/s1600-h/2402698820_6606b5ca8a_m%5B8%5D.jpg"><img style="border-bottom: 0px; border-left: 0px; display: inline; margin-left: 0px; border-top: 0px; margin-right: 0px; border-right: 0px" title="2402698820_6606b5ca8a_m" border="0" alt="2402698820_6606b5ca8a_m" align="right" src="http://lh5.ggpht.com/_DFg-lBFKmHc/Sk55XVUNFyI/AAAAAAAACFM/E6egky2WT4o/2402698820_6606b5ca8a_m_thumb%5B6%5D.jpg?imgmax=800" width="224" height="260" /></a> Balbi makes a number of interesting points including a telling anecdote of Merv Griffin writing the theme song to Jeopardy in about a minute. The anecdote illustrates that even though the ultimate value of the song has netted Merv $7 million over the years, that value has little, if anything to do with the time associated with it. </p> <p>As also pointed out, “most businesses do not equate time with money”. The same can be said for any individual who is facing a legal problem. </p> <p>Using domestic assault as an example, a person who is charged has very specific goals in mind with certain aspects they are not willing to compromise on. The goals may include: 1) a withdrawal or acquittal of charges, 2) reconciliation and restoration of communication and contact with the complainant, 3) no criminal record that may affect employment, and lastly, an expediency in obtaining these results. </p> <p>With goals come hurdles that the client may or may not be compromising on. Continuing on the domestic assault example, hurdles might include: 1) whether they are willing to enrol in counselling, 2) whether they are willing to accept responsibility in any manner whatsoever, 3) the length of the proceedings, and 4) the cost of the matter. </p> <p>Like businesses, people charges with criminal offences look to the bottom line in making assessments in retaining their lawyer and the value they attribute to it. Even though we as lawyers are often selling our time, it is actually results that the client wishes to obtain – the time, manner, or effort required to obtain those results is largely inconsequential to them. Much like Merv Griffin humming and selling the catchy tune of Jeopardy in seven minutes, clients would be delighted if their lawyers were able to obtain the ultimate result in such short order. </p> <p>Balbi’s suggestions of adopting anew business model for lawyers to operate on flat rates is a wise and one that I implement whenever possible. Having a flat rate has a number of advantages for the lawyer and client that are often overlooked. Those include: </p> <ul> <li>Certainty in cost / accounts receivable; </li> <li>Alignment of interests (both parties want the matter to end to each other’s satisfaction as quickly as possible)</li> <li>Clarity in objectives using a task-based model of value</li> <li>Easier administrative aspects to collecting retainers</li> </ul> <p>Although not possible for all files, I highly recommend that any lawyers, particularly those in criminal law, consider a fee-based system of retainer and assess whether the serves you and your client's needs are better met. </p>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com2tag:blogger.com,1999:blog-26542145.post-17284947806393121712009-05-16T09:36:00.001-04:002009-05-16T09:36:58.153-04:00Tories Plan to Allow Fingerprinting for Anyone Held by Police: Charged or Not<p> <img title="89760825_d5a3c652c6_m" style="border-right: 0px; border-top: 0px; display: inline; margin: 25px 0px 0px; border-left: 0px; border-bottom: 0px" height="240" alt="89760825_d5a3c652c6_m" src="http://lh5.ggpht.com/_DFg-lBFKmHc/Sg7Beac9nhI/AAAAAAAACE4/d_C2Hc8l2LU/89760825_d5a3c652c6_m%5B5%5D.jpg?imgmax=800" width="169" align="right" border="0" /> According to the Globe and Mail, the Tory government intends to introduce legislation allowing police to obtain and retain fingerprints for anyone detain by police, whether they are ultimately charged or not.  Under present law, before police are permitted to retain fingerprints of an individual, that person must be charged with an indictable offence.  </p> <p>What this means in the simplest of terms is that if the law comes into force, the police will have the power to take fingerprints from anyone that they suspect, or even hold in relation to a criminal investigation.   </p> <p>Here are a couple of scenarios that come to my mind: </p> <blockquote> <p>A person is believed to be involved in a robbery, taken to the police station for questioning but not arrested.  They are fingerprinted when they arrive at the station.  Upon questioning, it is quickly discovered that the suspect is the wrong person – as they are a teacher and was in the middle of teaching a summer school class when the robbery happened. They are released immediately. </p> </blockquote> <blockquote> <p>A person is walking down the street.  Police detain and question the individual with respect to a recent string of break and enters in the neighbourhood.  Before even commencing their investigation (to later realize that he is a resident and is in fact one of the people who was broken into), police take prints from the walked.  The person is quickly released but the prints remain in the police possession. </p> </blockquote> <p>What is so shocking about this new proposed legislations is that unlike the present law that requires reasonable and probable ground for an arrest, the present law would only require the person be detained.  In short, that means there is no criteria other than a police officer’s hunch, prejudice, or any other bias that doesn't even meet the low standard of reasonable and probable grounds.  </p> <p>Political opponents of the Tories have expressed concern over the new legislation and pointed out, quite rightly, that this is ripe for police abuse.   </p> <p>What is more troubling is that there is no mechanism for destruction of prints after they are taken.  So, returning to our teacher or local residence example, those prints may remain on police databases forever, even though they did absolutely nothing wrong. </p> <p>Rationale for this new legislation seems lacking.  Mr. Nicholson, the brainpower behind this proposal, stated that "Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it."  It is hard to understand this is anything other than devolution that allows people who are not even charged with crimes to be subject to police seizure of highly personal information that is not subject to destruction.  The irony is that the designed to retain prints for those who are <em>not </em>criminals (otherwise they would have been charged and had their prints taken anyway).    </p> <p>As a criminal defence lawyer, this legislation is not only “ripe for abuse” it is destined.  Write your MP.</p> Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-22097466684125450862009-04-19T22:22:00.003-04:002009-05-05T00:18:10.784-04:00twitter<p><a href="http://twitter.com/dinosaurbeach"><img title="twitter_logo_header" style="border: 0px none ; display: inline; margin-left: 0px; margin-right: 0px;" alt="twitter_logo_header" src="http://lh4.ggpht.com/_DFg-lBFKmHc/Sevca9lF95I/AAAAAAAACD4/Ftm6wMRW_TM/twitter_logo_header%5B5%5D.png?imgmax=800" align="right" border="0" height="42" width="161" /></a> ok, i have jumped on the twitter-tweet-train. follow me here: <a href="http://twitter.com/toronto_lawyer">http://twitter.com/toronto_lawyer</a></p>Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0tag:blogger.com,1999:blog-26542145.post-43872952777460300242009-04-30T23:48:00.001-04:002009-04-30T23:48:53.858-04:00Ontario to Impose Tougher Laws for Drinking and Driving Today, May 1, 2009<p>As of today, May 1, 2009, any driver’s caught driving with their blood alcohol between 0.05 to 0.08 (the Criminal Code legal limit is 0.08) will have their licence suspended automatically for three days. </p> <p>If the same thing happens again, then that suspension will be increased to seven days with reeducation program; a third time means a 30 day suspension, required to take a treatment program, and have to install an interlock ignition program.  </p> <p>Similar to “speed racing” or “stunt racing” charges (50km over), the there is no right of appeal and the events will be added to driving records.  </p> Robichaudhttp://www.blogger.com/profile/03670187162897422404noreply@blogger.com0