Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter A system in 'peril' ters of support from two sources with some weight behind them. The first was authored by retired Supe- T rior Court justice Hugh Locke who fears the "current imbalance in the criminal system will not only continue to have a negative impact on the administration of justice but may well be irreversible." The second came from the Ontario Crown Attorneys' Association, repre- senting nearly 900 prosecutors, stat- ing it is their position that "the present funding of the legal aid tariff under- mines the ability of the defence bar to perform their vital role." Locke, the first president of the Criminal Lawyers' Association and cur- rent member of Toronto's police servic- es board, put pen to paper in late July. Addressed to Frank Addario, president of the CLA which has spearheaded the his province's legal aid boycott entered its third month last week with a couple of hefty let- boycott, Locke's letter states that in his view one of the essential aspects to the administration of criminal justice "is an independent defence bar. Because our criminal justice system is adversar- ial, a level playing field for all partici- pants is essential, not only as a matter of fairness, but in order to maintain the rule of law." Locke said he has reviewed a number of reports on the issue and notes that there is a common theme. "They detail years of neglect of the legal aid program while other participants in the criminal justice system have been allocated increasingly disproportionate resources. While I do not wish to comment on why this has occurred and am more than cogni- zant of limited state resources, the situation in which the defence bar currently finds it- self in is deeply troubling," he said. Locke believes that the independence of the bar may be in "peril," and what he finds "particularly troubling" is the flight of senior lawyers from the bar and the judgment they bring to cases. "Their absence, not only adversely im- pacts the individuals who are losing the benefit of their wise judgment, but also the court, Crown counsel, and the police." He said the lack of judgment has "trag- ic consequences" for the justice system. Locke further noted that mentoring is "fundamental" to the administration of justice and the "continued flight of senior defence counsel whom at one time took on legal aid for the most serious of cases has resulted in a situation where mentor- ing, as the reports indicate, has steadily decreased to the point, I am told, that criminal defence articles are becoming rare or almost non-existent." The experienced judge said that is perhaps "the most troubling aspect of the situation because it has irreversible negative long-term effects on our crim- inal justice system. Without mentoring from senior members of the defence bar the independence of the judiciary is imperiled." Thomas Hewitt, OCAA president, wrote to express the association's "concern regarding the current level of funding for Ontario's legal aid program and to support the initiative by various parties in the legal profession to increase legal aid rates." Hewitt wrote it is "the position of the OCAA that the present level of funding of the legal aid tariff undermines the abil- ity of the defence bar to perform their vital role . . . Our association is fully in support of a fair and properly funded legal aid system in Ontario and firmly hopes that the necessary changes are im- plemented at the earliest opportunity." It's starting to look as if the province is the only one who thinks otherwise. Why? This is my last week as Editor of Law Times. Many thanks for being a great readership. — Gretchen Drummie down or adjourned while some detail is ironed out. You want to look good, sound good, and rep- resent your client effectively. The key is preparation. A recent Advo- cates' Society teleseminar, "Seven Deadly Sins in Sentencing Advo- cacy" was my starting point for this article, and I am indebted to justices Michelle Fuerst and Paul Taylor for their insights. Make sure that the client ad- P mits each element of the offence and that he had criminal intent. He is not "pleading guilty with an explanation," or accepting responsibility for a mistake. Sec- tion 606 of the Criminal Code provides that a court may only accept a plea of guilty if the ac- cused understands (1) that the plea is an admission of the es- sential elements of the offence, (2) the nature and consequences of the plea, and (3) that the court is not bound by any agreement made between the accused and Successful submissions in busy plea courts A Criminal lea court is a busy place. You want the plea to go smoothly and not be stood the prosecutor. Written instruc- tions may not suffice. I had at- tended the jail to obtain signed instructions from a vacillating client who wanted to plead guilty. He signed the admis- sion of guilt, and almost with- out pausing spluttered, "Ms. Conway, as God is my witness I did not do this thing." The next morning I got off the record, which was a good call, because the client's friend was wandering around the courthouse, looking for the room in which my client was being "forced to plead guilty by his lady lawyer." There must be no factual dis- putes. Go through that police summary with the client word for word. Go through anything else in the disclosure that the Crown may be expected to refer to on the plea. You may need to work out an agreed statement of facts with the Crown. Or you may have to have a Gardiner, [1982] 2 S.C.R. 368, hearing where the aggravat- ing facts must be proven by the Crown beyond a reasonable doubt. Mind By Rosalind Conway But there is a caveat here concern- ing victim impact statements. The judge is required to inquire about the victim impact statement, and may adjourn the sentencing for it (s. 722.2). Edit the statement for any inadmissible information, but avoid cross-examining the victim during the sentencing. Rough out all submissions and review the file. Confirm a refer- ence and employment letters. Contact the client shortly before the plea. All essential background information should be updated before court. Avoid turning to your client in court to audibly ask him if he is working. Remind the client that he may be invited by the court to make a statement under s. 726. The cli- ent's statement can be a boon or www.lawtimesnews.com a bombshell. I decline to tell the client what to say, but I can tell him to keep quiet. Make sure that the statement will not lengthen the sentence: "I did it. I am glad I did it. When I get the chance, I'll do it again." Ancillary orders — avoid sur- prises. Where applicable, discuss weapons prohibitions and DNA orders with the client. Review the Highway Traffic Act consequences for driving offences, and the regis- tries for sexual offences. Justify any apparently ridicu- lous joint submission you are presenting. The judge has not read your file or been privy to your discussions with the Crown. It does not look good when you cannot present persuasive reasons for your joint request. And it can leave a poor impression on the public, because justice must be seen to be done. Use a judicial pretrial to lay the groundwork for an unusual disposition. In a busy court you may want to remind the judge that she pretried the case, in case augusT 10/17, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. she wants to retrieve her notes from chambers. A word about pre-sentence reports: prepare your client for the meeting with the probation officer. It is not uncommon for a client to deny or minimize the offence to the probation officer, in order to make a good im- pression; this is human nature. Without some fancy footwork and clear instructions, the guilty plea will be struck. Remind the client that the facts in the case are the ones taken on the plea. One client who had pleaded guilty as a party to aggravated assault told his probation officer that he had stomped on the complain- ant; the deal was off, and he was sentenced accordingly. And finally, those pesky sur- charges. If your client is impov- erished, give the court reasons to waive the surcharges. LT Rosalind Conway is a certified spe- cialist in criminal litigation. She can be reached at rosalind.conway @magma.ca.

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