On February 13th, 2013, the above was a tweeted by a past Criminal Lawyers Association President’s law group. Thanks  Frank. The point is simple: if you are under detention at the police station, the police have to really actually help you get in touch with your lawyer of choice. That’s if you have a lawyer of choice (if you don’t, police are required to put you in touch with a free ‘duty counsel’ lawyer, at least in Ontario).

What makes this case noteworthy is that the Judge found that in order to actually help you get in touch with your lawyer the police have to give you access to an internet connection to look up the number. Apparently there was evidence called to establish that lawyers have by and large stopped advertising in sources such as Yellow Pages and that the internet has really replaced the paper. You already knew that. Now at least one judge has acknowledged it…which will make it that much easier to get another judge to find the same thing.

Judges like to know other Judges have already “found” something so they can “follow” it. That is how the common law has developed through the use of precedent over the centuries. This case is available online at http://canlii.ca/t/fvz84 .

Case Name:

M. v. Ontario

Between

V. M., applicant, and

Her Majesty the Queen, respondent, and

Justice of the Peace McAleer, respondent

[2005] O.J. No. 1414;  2005 CarswellOnt 4359

Court File No. M91/04

 Ontario Superior Court of Justice

J.D. McCombs J.

Heard: January 21, 2004.

 Judgment: January 21, 2005.

(6 paras.)

Legal profession — Practice by unauthorized persons — Paralegals — Injunctions against.

Application by a paralegal for certiorari. The paralegal claimed that the justice of the peace exceeded her jurisdiction by barring him indefinitely from appearing before her as agent for the defence, pursuant to s. 50(3) of the Provincial Offences Act. The justice concluded that the paralegal materially misled her.

HELD: Application allowed. The justice misapprehended the true facts concerning the conduct and competence of the paralegal. The justice’s order was set aside.

Statutes, Regulations and Rules Cited:

Provincial Offences Act, ss. 50(3), 141(4).

Counsel:

Graham T. Clark, for the applicant.

Kate Doorly, for the respondent Crown.

Connie Vernon, for the respondent Justice of the Peace McAleer.

Endorsement

1     J.D. McCOMBS J.:– The applicant, a paralegal “agent” applies for Certiorari relief, alleging that the justice of the peace exceeded her jurisdiction by invoking s. 50(3) of the Provincial Offences Act to bar him indefinitely from appearing before her as agent for the defence.

2     The justice of the peace was entitled, indeed obligated, to invoke s. 50(3) where the appearance of the agent would undermine the integrity of the judicial process or otherwise bring the administration of justice into disrepute. See R. v. Romanowicz (1999), 45 O.R. (3d) 506 (C.A.).

3     In this case, the justice of the peace concluded that she had been materially misled by the applicant, and found that “there are clear grounds to bar him for not acting competently to represent and advise a person for whom he appears, as well as not understanding and complying with the duties and responsibilities of an agent”.

4     I am persuaded that the conclusion of the justice of the peace were based upon a misapprehension of the true facts respecting the conduct and competence of the applicant. Although the applicant’s conduct was hardly a shining example of competent representation, a fair reading of the records reveals that there was no basis for the decision of the justice of the peace to invoke s. 50(3) and bar the applicant from appearing before her in the future. It follows that the criteria in s. 141(4) of the P.O.A. have been met, and that relief should be granted.

5     In the result, the order of the justice of the peace is set aside.

6     There will be no order as to costs.

J.D. McCOMBS J.

‘I’ve had a gun to my head’ – Man wants life back after sex charges tossed - BRETT CLARKSON, SUN MEDIA

Man acquitted on child sex charges plans to sue police – ELIZABETH BOWER, QMI AGENCY

FIRST POSTED: TUESDAY, JULY 28, 2009 02:40 AM EDT | UPDATED: TUESDAY, JULY 28, 2009

That said, it is hard to be the last bastion of even-handed reasonableness sometimes. My ethical duty is to defend my client fearlessly in any way I can without breaking the law or engaging in “sharp practice”. Sometimes I am the last person on the planet aside from family and friends who is actually standing up for the accused. Yet ironically, sometimes, I end up having to defend the justice system to my clients and those who care about them. I am the one who has to explain the reason why and how the justice system is seeking its pound of flesh from them.

So what is defence counsel to say to the accused and concerned family members in a case like R. v. Murphy 2012 ONCA 573? In that case, the defence tried to call a witness to testify that it was him and not the accused who committed the offences charged. Sounds pretty relevant, right? Perhaps police and society at large might want to thank the defence for making sure the real culprit is identified, subject of course to the Crown and trial Judge’s opportunity to fully cross-examine the witness and, if necessary, conduct related investigations? How would I explain to the accused and his family that the trial Judge would not allow the real culprit to testify and take responsibility for the crimes?

In R. v. Murphy, the trial Judge ruled that the defence could not call the real culprit because “there is no evidence linking the third party suspect to the crime”. Try explaining that to your client whom you have also advised that he is “presumed innocent” and that the burden of proof is on the Crown.

In R. v. Murphy the accused had to be convicted and have a total sentence of six years and five months in jail imposed before he could get the matter to a higher court. Once that happened, of course, the Court of Appeal for Ontario agreed that the trial Judge had imposed a burden on the accused that was inappropriate.

The Court of Appeal agreed “that the trial judge erred in refusing to permit the defence to call McClelland because he misapprehended the nature of his evidence and misapplied the test for its admission.” Writing for the Court, Justice John Laskin went on at paragraph 22:

Why, I ask rhetorically, should he not have been permitted to call MacLellan to say, “It is I, not Murphy, who owns the gun and the narcotics the police seized”?  Obviously, it would be for the jury to decide whether to accept that evidence or whether it at least raised a reasonable doubt about Murphy’s guilt.  On its face, however, the proposed evidence was sufficiently probative and relevant that the defence should not have been precluded from calling it.

[23]      It seems to me that the trial judge misapprehended the nature of the proposed evidence and, therefore, at para. 60 of his reasons, erred by requiring Murphy to show other circumstances connecting MacLellan to the offences charged.

I cannot tell you how I would have explained this trial Judge’s Ruling other than to explain the appeal process and hope the client is patient. And that he can afford to pay for the appeal, and the re-trial that the Court of Appeal will order after all of the resources poured into the first trial have been so badly wasted.

The taxpaying public has to pay for another trial now;  12 different members of the community could be required to take weeks off work to sit through the retrial. Does the taxpayer have any idea of the cost? It is noteworthy that the Crown first argued that the defence should not even be able to ask the Court’s permission to call the witness (see para. 20 of the trial Judge’s Ruling). The Crown’s alternative positions can be charitably described as including everything necessary for the trial Judge to get the matter completely wrong (see see para.s 21-28 of the trial Judge’s Ruling), as the Court of Appeal ultimately found he did. Nobody even jokes about voters getting a chance one day to express their disdain for this untenable and horribly costly crown posturing. Should taxpayers know? Should they have a say? Should there be accountability?

As an aside, all of the extra work demanded of the defence lawyer in R. v. Murphy (see paragraphs 10 and 11 of the appeal decision, for example), likely would not have been services covered by Legal Aid Ontario. If the accused was legally aided, or without funds to pay further fees, the defence lawyer would just have to give up another evening or two doing the unpaid work preparing the application for permission to call the real culprit as a witness. That unpaid work is part of the ethical obligation of being counsel of record. It is also a reason that more and more experienced criminal defence lawyers find it is simply impossible to defend people properly through legal aid. It is not just the government’s refusal to fund legal aid beyond 1980’s levels. Judges and Crowns too have plenty of opportunities to make legal aid work financially non-viable for defence lawyers – as in this case – again with taxpayers probably unaware. Taxpayers unconsciously prefer to pay for years of incarceration instead of paying the fractional cost to make legal aid work viable for defence lawyers (that juxtaposition will be fleshed out in a future post on this Blog about a case in which I saved a client from an extra 11 months in jail only to find out that Legal Aid Ontario had basically stopped paying for the services necesary to achieve that result).

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. 111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, (a)      is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b)       is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.M., 2012 ONCA 190

DATE: 20120326

DOCKET: C53424

Rosenberg, Armstrong and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

A.M.

Appellant

Graham T. Clark, for the appellant

Alison Wheeler, for the respondent

Heard and endorsed: March 21, 2012

On appeal from the conviction entered on June 14, 2010 and the sentence imposed on July 28, 2010 by Justice Brian Muir Scully of the Ontario Court of Justice (Youth Court), sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]               Crown counsel fairly concedes that the appellant did rely on s. 34(1) of the Criminal Code. The trial judge however only dealt with s. 34(2). In our view, there is an air of reality to self-defence under s. 34(1). As the trial judge said, the appellant acted impulsively when handed the bar in the course of the altercation. The trial judge made no finding that the appellant intended to cause grievous bodily harm and we cannot infer that the appellant did have that intention.

[2]               We also are of the view that the findings of fact did not establish that the force used was disproportionate. The finding of fact that the appellant did not have reasonable grounds for belief that he was at risk of death or serious injury, did not resolve the question of proportionality. We also are of the view that fairness requires that the appellant’s real defence be considered by a trier of fact with the opportunity to see and hear the witnesses.

[3]               Accordingly, the appeal is allowed, the conviction is set aside and a new trial ordered.

Is it the Mayor or the police Chief or both who are deciding that this  act of political expression should be extinguished? And when, and how it shall be extinguished? This is a fundamental individual right, one upon which this society is founded. It has been enshrined in our very constitution in section 2(b):

2. Everyone has the following fundamental freedoms:

(a)  freedom of conscience and religion;

(b)  freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c)  freedom of peaceful assembly;

(d) freedom of association.

One thing that the above quote from the Mayor does not capture is the mid sentence “…uhhh…” which could be heard when it was played on the radio. Whether this was a truly pensive  “uhhh” or a pause to allow the brain to catch up to the mouth, is it sufficient thought or due process by which to tell a peaceful political protest to go to bed early without any supper? Hope nobody gets grounded.

Maybe a good way to advance the agenda of police accountability. But too bad it required the columnist to engage in some absolute fiction about the murder trial and resulting acquittals. Fact is, there was no evidence whatsoever that the witness whose recantation sunk the Crown’s case had ever been threatened in any way. (http://goo.gl/OGup4). Nor was there any evidence of “gang” involvement.

In fact, the evidence in the trial was not even capable of ruling out the possibility that nobody shot Jordan Manners. The facts were equally consistent with a horrible accident in which the gun went off while the boys were inspecting it in the school bathroom. But not one single media outlet can resist repeating that the boy was a “shooting” victim, “gunned down” as the Post put it.

The possibility that this was not a murder is just completely unpalatable to a society in which scapegoats are essential cultural nutrition. The human mind needs this death to be the result of evil wrong-doing, not some stupid horrible accident.

At least the columnist referred to above invented the gangster intimidation angle for an ulterior purpose of chastising police who won’t enforce the law against other cops. That’s a bit better than all of the publishers and broadcasters who constantly presuppose the gangster intimidation angle out of ignorance of what the actual evidence was, or sheer greed for viewers/readers.

If evil wrong-doing is something the human mind absolutely needs in order to digest something so horrible, why not ponder the evil forces by which Canada is being continuously flooded with illegal handguns from the USA? That was probably the origin of gun that killed Jordan Manners. Why not publicize the fact that a lot of them come here as part of the drug trade which would not be nearly as voluminous and lucrative but for marijuana prohibition. Wide swaths of society – from doctors and lawyers and architects to builders, storekeepers and musicians – create a demand for the weed which would be less harmful than alcohol distribution but for the government forcing the entire supply chain into the hands of organized criminals.

Does the media ever look into how much of the weed that gets shipped south from our illegal grow houses gets paid for in illegal handguns coming north? No, it seems not. Those gangsters, though real, are too far removed to properly serve society’s scapegoating needs in the Jordan Manners death.

Easier to invent some local gangsters and mislead the public into thinking the trial was a travesty. Bonus: we don’t have to feel bad that two young men spent four years in jail for a crime they did not commit.

Sometimes family members are invited to provide “Victim Impact Statements” which are read aloud in court and taken into account by the Judge imposing sentence. These family members are readily recognized as “victims”, even though they did not personally and directly endure the violence for which the accused was convicted.

None of the above is controversial. Not even the most obstreperous defence lawyer would try to argue that they are not in fact victims.

Yet the Court of Appeal for Ontario describes a family’s interest in ensuring that a perpetrator is duly convicted by saying that they “may have derived some personal satisfaction from that conviction. That satisfaction, however, would have been a purely personal matter; it would have no reality in law.”

The interest of the family members of a homicide victim in seeing the perpetrator convicted has “no reality in law.”? Run that past a politician and see if they will publically agree.

But, to be fair, make sure you tell them this too. When the Court made this statement, it was in fact quoting from another well established case. And it was not talking about cases where an accused has been charged and put on trial. It was talking about cases where the police had failed to charge someone and the victim’s family wanted to sue police for negligent investigation.

The Court was referring to cases, for example, where someone wanted to sue because police negligently investigated complaints that a spouse was assaulting her children; or where a cyclist’s family sued one police officer for negligently investigating another police officer for impaired driving causing death. In those cases the family’s interest in seeing the perpetrator duly convicted would have “no reality in law.”

Thus in the case of Wellington v. Ontario the mother and sister of a 15-year-old killed by police at the wheel of a stolen van in a parking in 2006 could not sue the SIU for failing to interview the officer who fired the fatal shot and closing its investigation before even receiving a pathologist’s report.

The suspect police officer, or any criminal suspect for that matter, would be able to sue the investigators – whether police or SIU – for any negligence in the investigation.

But the desire of the dead 15-year-old’s mother and sister to see a full investigation of the death has “no reality in law”. That’s just the way it is. It may be that the law thus protects police who protect other police by not properly investigating police criminality. Maybe not. Run it past a politician and see if they will publically agree.

This blog is not a vehicle to criticize particular parties either directly, or indirectly by supporting another party. That said, it cannot be ignored that some of the last federal government’s justice initiatives had to be criticized directly (http://goo.gl/jX1g5), if only for ignoring the lessons that even so-called “law and order” politicians in the U.S. seem finally to have acknowledged.

The April 6, 2011, 1 hour special on the Current on CBC Radio1 offers the opportunity to even the critique among the parties a bit.

The topic was supposed to be “access to justice” and started with the Chief Justice of the Supreme Court of Canada observing that the ‘middle class’ may be the most deprived of all. (At Legal Aid Ontario, you won’t qualify if your family of 5 has $3584 per month to live from, even though there is nothing left of that to pay lawyers for any significant work at the end of the month).

Later in the episode, three politicians came for a dog and pony show which utterly failed to address the very issue that was supposed to be under discussion. Current Minister of Justice Nicholson pounded the point that his government puts “the emphasis on victims and law-abiding citizens.” The unspoken corollary is that his government is NOT putting the emphasis on accused person’s rights. To presume that complainants are “victims” presupposes that the accused are guilty. No wonder the government’s solution to long remand times was to eliminate enhanced credit for pre-trial custody rather than making sure people can get earlier trial dates. The accused are all guilty anyways.

To their credit, Messer’s Leblanc & Comartin from the opposition did make the point that the government should get people to trial more quickly rather than reduce the credit for waiting in jail while supposedly presumed innocent. But all they seemed to say about it was that we need more Judges and more Crowns and more Police. This without any mention of the fact that there is a shortage of lawyers able to defend accused people already. Adding more crowns and judges without addressing the shortage of available defence lawyers means these two may be just as likely to overfill the jails as the opponent they claim to disagree with. Ironically, they missed the access to justice angle even when it naturally arose on an episode that was supposed to be dealing with that very issue in the first place.

So the politicians managed to obliterate the entire premise of the episode. But did the show offer anything to voters who are trying to make a reasonably informed decision about which political party is most likely to take Canada down the U.S. road to being a world leader in incarceration? You decide. This is not a partisan blog.