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Page 6 June 13, 2016 • Law Times www.lawtimesnews.com COMMENT ©2016 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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 disclaims any warranty as to the accuracy, com - pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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It takes time and effort for lawyers to know how to present a case in court, and that usually comes after talking out a case ahead of time with the client. Picking a legal strategy out of thin air worked fine for Perry Mason who did it for us every week on television, but that was a very long time ago and today few of our lawyers are Perry Masons, no matter how much they want to win a case for a client. For the rest of us, it is abhorrent to think of a man sent off to jail to do time because his lawyer didn't have an extra five hours on a Tuesday afternoon to travel down Highway 401 to learn first- hand from his client the facts of the case he will be fighting in court. Norman Boxall, one of the sharpest legal tools in the national capital, says there are two big problems facing people who are accused of crimes. One is get- ting a good lawyer. The second is getting the time and space to meet and discuss a case. The problem began after the gov- ernment of Ontario went to bigger jails and cut out smaller jails — in places such as Cornwall and Perth. The Ottawa jail, known as the Ottawa-Carleton Detention Centre, took over all the coverage for East- ern Ontario. Access to clients behind bars became a sys- temic problem, says Boxall. "Now appointments are required to see our own cli- ents," says Boxall. He recalls that when he was a younger lawyer he used to travel out on weekends to see clients in smaller rural jails to discuss their case be- fore they appeared before a judge on the following Monday. "Not anymore," Boxall says. "The sys- tem has changed. Now sometimes I have to wait a week to see my client." This is not the way the legal system should be set up. Sometimes, a trial is de- layed for several weeks or even months, and then because of that, prisoners are transferred from one jail to one with more room in it. That means lawyers have to travel that extra distance back and forth if they want to meet their client before the trial begins. Some prisoners are sent off to Lindsay or Penetanguishene while they and their lawyers wait for a trial in Ottawa. So why not build bigger jails? There would be room for all the prisoners and for their lawyers to meet them, and lawyers wouldn't have to travel halfway across the province to give their clients a fair trial. That's not the way defence lawyers think. Put fewer people in jail, says Boxall. Put only the real criminal cases in jail, the ones waiting for trial on something really criminal, and really im- portant. What's the use of putting a single mom waiting for trial in jail, after she's caught stealing a box of diapers? She goes into the clink for a couple of days until her trial comes up the following week. That's when the judge hears the case and is about to pass sentence on her until he asks if she has children. Yes, a kid in diapers, she answers. The judge does a quick step back and says jail won't be much use. Instead, he gives her a stiff warning and sends her off to her family, telling her to stop pilfering dia- pers from drugstores. Is this how justice is served? Did she have to be in jail awaiting trial? Ottawa criminal lawyer Lawrence Greenspon says too many people are kept in jail waiting for trial on "relatively mi- nor offences." He adds: "We have to reduce the num- ber of those people who are in jail." The conditions in the Ottawa jail are "horrendous," he says. The answer, say lawyers, is to jail only people who are a threat to society. In the Ottawa jail, 60 per cent of the people are currently on remand. They are presumed innocent by law and yet they are being housed for weeks or months at a time in the same cells as genuine con- victed criminals. Perhaps they are one of those "lucky" ones who end up housed in a shower stall — where maybe two or three other inmates are tossed in with them and then they have to fight every night to decide who gets to sleep on a mattress on the shower stall f loor. Anne London-Weinstein, who teach- es law at the University of Ottawa, says people are housed in "horrible, atrocious conditions" in the Ottawa-Carleton De- tention Centre. She says that "does not serve the interests of society" and that jails are being used to "warehouse" men- tally ill people. What she wants is for the federal and provincial governments to get together, because mental health is both a federal and provincial issue, and come up with a single mental health strategy. And get mentally ill people out of jail. LT u Richard Cleroux is a freelance re- porter and columnist on Parlia- ment Hill. His e-mail address is richardcleroux34@gmail.com. The Hill Richard Cleroux Baffling reasoning These are the only words for details that emerged in the recent On- tario Superior Court case R. v. Richards. In the case, Justice Casey Hill rightfully set aside Brandon Richards' conviction for simple pos- session, stemming from a 2014 traffic stop by police. An officer had stopped Richards in his vehicle after he pulled out of a Guelph strip club one night and noticed the strong scent of pot. After the officer and Richards confirmed Richards had nothing to drink, the officer cautioned Richards about possessing a controlled substance and asked if he had any pot in the vehicle. Richards then turned over 1.15 grams of marijuana, which led to his arrest. Yup, you read that right. Readers might be interested to know that the amount of marijuana involved in Richards' conviction carries a street value of about $10. This when the federal government talks about the forthcoming laws to legalize marijuana in spring 2017. Um, what? "Its exclusion from evidence would defeat society's interest in hav- ing criminal cases decided on their merits," said Hill, in his ruling. "That said, the summary conviction prosecution . . . is the type of case which not infrequently results in diversion from arrest and charge." You can say that again. After the pot was turned over, police also found $25,000 in cash in the trunk of his vehicle in a search. The police seized the money. Most of it has not been returned. Hill has booted the conviction based on a breach on the Charter right "to re- tain and instruct counsel without delay and to be informed of that right." "This has been Kaf kaesque," says Benjamin Goldman, Richards' lawyer. Goldman has a point. Prosecuting a man for having 1.15 g. of pot — pulled over in a traffic stop, where police observed "no abnormal driving" be- forehand — is preposterous. Also ridiculous? The total waste of judicial and court resources. LT

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