The most important part of the pre-trial process is the meeting or series of meetings in which counsel and the client discuss the nature of the case and how it will be defended. This may include preparation for testimony and lead to other witness interviews and the retention of outside entities including private investigators and expert witnesses or any number of other steps designed to maximize control over the outcome of the matter.

This most important aspect of the pre-trial process is easily managed because it is within the control of counsel and the client. Navigating the steps that the justice system deems to be most important to the pre-trial process is another story.

It is common to hear reports of public speeches by powerful people, including top judges, about the need for greater access to justice in Canada.^[1] But at the same time, judges and bureaucrats charged with administering the system are under constant pressure to deliver justice more efficiently on a fixed budget. The result is often experienced as ‘downloading’ onto low income accused persons and the lawyers who try to accommodate them within their limited financial means.

For example, in a genuine attempt to reduce systemic backlogs, mandatory meetings between the Crown and Defence lawyer must be held before an accused is allowed to set a trial date (‘crown pre-trial’); sometimes a further mandatory meeting with a judge is required (‘judicial pre-trial’). These are often productive and necessary steps. But sometimes they are obviously useless to the defence and amount to nothing more than a forced opportunity for the system to entice people to plead guilty. And in some cases these meetings can literally double the amount of time a lawyer must spend working on a case. The system thus depletes high percentages of an accused person’s limited resources before there is any real opportunity to advance the defence at all.

Also in another genuine attempt to improve the system, it has become virtually mandatory for the Crown to provide disclosure^[2] to accused persons in court ‘on the record’. This is fine, except when there are inexplicable delays in the process by which police or the Crown actually get the disclosure to the courtroom. In those cases, an accused can be required to appear at administrative remands over and over again for no productive reason. Time off work might start to imperil employment while the allegations, and possibly strict bail conditions, continue to  hang over the accused’s head, problems which cannot always be remedied by resort to section 11(b) of the Charter^[3].

Even more costly, the accused may have had their lawyer present for each of those futile disclosure remands, in the vain hope of getting disclosure and conducting the mandatory pre-trial meeting right away. Again, the cost to the accused can be a severe depletion of the resources available for the defence for no gain whatsoever, before there is any real chance to defence oneself. Again, there may be no real remedy under section 11(b) of the Charter.

The above are just two basic and innocuous examples of how the justice system can (inadvertently) grind an accused person down before providing any real opportunity to fight back. There are much worse examples, such as bail conditions that unnecessarily tear families apart and induce pleas of guilty from people who are in fact not guilty at all. In all cases, experienced counsel may be the only insurance against these forces of bureaucratic inertia and injustice.

In navigating the pre-trial phase, there are a number of approaches my office can suggest to suit the needs and preferences of particular clients. For accused persons who are unable to miss work repeatedly, a ‘Designation of Counsel’ under section 650 of the Criminal Code can be filed in court allowing counsel to appear in the absence of the accused. In some cases clients opt to attend court without counsel for those initial appearances where nothing must be decided or done aside from receiving the police disclosure. The approach required will depend on the client’s particular situation, preferences and instructions.

Whether counsel’s retainer is paid as a ‘block fee’ for the entire case, as an hourly rate, or otherwise, it is part of counsel’s duty to ensure that the resources available to the defence are properly devoted to truly improving the client’s position. My office offers not only experience and expertise about how to navigate each step in the process, but also the benefit of relationships and rapports built over many years with various crown, court and police offices, as well as colleagues in my own and other law offices throughout Ontario in order to get things done efficiently, sometimes in spite of the system.