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Rounded Corner

THE TENSION IN THE CRIMINAL JUSTICE SYSTEM

This is a caution to anyone presently charged with a criminal offence.

There are changes going on in the criminal justice system that those who are charged with criminal offences should be aware of in order to understand how best to navigate the process. The federal and provincial governments are effecting changes to the system in opposite directions. The federal government is responsible for enacting criminal law through the Criminal Code of Canada.  The federal government decides what is and what is not a criminal offence and sets out the available punishments. The provincial government is responsible for administering the criminal law.  In other words, they give effect to the criminal law.  The provincial government is responsible for building the courthouses, staffing them and maintaining them.  The provincial government hires and supervises Crown Attorneys, has set up Legal Aid Ontario and hires the judges, at the lower court level.

The Canadian federal government has been taking a “get tough” approach to crime for a number of years.  They have amended the criminal code numerous times to include new criminal offences, to remove previously valid and lawful defences to some charges, to change the rules of evidence to make certain defences more difficult to assert, and to impose mandatory minimum jail sentences for many existing charges. They have even limited the circumstances and quadrupled the cost of obtaining a pardon. It seems like the federal government thinks the courts are too lenient on offenders or that defence lawyers are doing too good a job for their clients.

Human nature and our experience shows us that the tougher the penalties for criminal acts, the less likely are people to plead guilty.  They are more likely to fight the charges all the way. On the other hand, the more lenient the sentence, the more likely people are to plead guilty and to do so much earlier in the process. In contrast to the federal government’s approach, the Ontario provincial government has come under increasing criticism for criminal cases taking too long to proceed through the process.  A few years ago the criminal justice system was so slow that thousands of cases were dismissed or stayed because they took so long to come to trial that it denied people their constitutional right to trial in a reasonable time.  Ontario’s response to this problem is a project they call “Justice on Target”.

JUSTICE ON TARGET

Justice on Target project began in June 2008. The “target” of the project is to reduce by 30% the average number of days and court appearances needed to complete a criminal case. It began in only 3 locations in Ontario – North York, London and Newmarket – and is now province wide. The effectiveness of Justice on Target will be measured by statistics compared with the year 2007 as the baseline. Therefore the ability to generate favourable statistics will be the project’s measure of success and effectiveness. Your case will be a statistic.

What statistics about your case are they measuring? 1. the number of days it takes to complete your case; and 2. the number of court appearances you have to make before your case is completed. In other words, once they have charged you they want to get rid of your case quickly. The major focus of the program is to divert minor and first time offenders out of the courts as fast as possible.

DIRECT ACCOUNTABILITY

The name they now use for diverting minor and first time offenders from full prosecution is “direct accountability”. Direct accountability, when it is offered, means admitting responsibility for the offence and performing some act to benefit society in general, which may be making a charitable donation or doing community service work and then having the charge withdrawn. There are other offers that may be made to you at a first appearance that might include a charitable donation or community service work and a common law peace bond, a section 810 peace bond, a plea of guilty to a lesser offence with a sentence of an absolute discharge or a conditional discharge with probation or a suspended sentence with probation. If your fall within that category you WILL feel some pressure to resolve your case immediately, without making a second court appearance and extending the number of days your case is in the system.

My concern is with the sufficiency of legal advice, if any, that you get before making a decision that could affect the rest of your life. Critics of Justice on Target have recognized that the weak link is the defence bar – the criminal lawyers. That’s because my job as a criminal defence lawyer is to put the interests of my client first, not to play ball with the governments who are prosecuting you. Clients need to be properly and ethically represented in court, regardless of how many court appearances it takes. As a defence lawyer even I feel the pressure to resolve cases quickly.  In one instance my client was offered direct accountability by making a charitable donation and the Crown Attorney suggested that I make the contribution immediately for my client so the charge could be withdrawn that day.  I was pressured to do so without a chance to inform my client of the offer, advise my client and get instructions from my client. If I, an experienced lawyer was pressured to make quick decisions, how much moreso will an accused person who is unrepresented be pressured to make a quick decision.

The process in Newmarket for the first court appearance for persons who show up without a lawyer is to get a brief lecture from the Crown and then court takes a break while everyone lines up to talk to duty counsel after which they are expected to make a decision about their case. Legal aid duty counsel, unfortunately has become, in reality, part of the processing system. These are capable well qualified lawyers who give of their time and skill to deal with the multitude of cases needing free legal advice every day but duty counsel simply doesn’t have the time to sit down with you and review your disclosure in detail and obtain all the information necessary to give you full and complete advice. The purpose of duty counsel is to  help you with that one appearance if you don’t have your own lawyer.

DON’T BECOME A STATISTIC – GET LEGAL ADVICE

Beware of an offer that looks too good – it probably is.  These are criminal charges we’re dealing with that carry a lot of consequences, some very serious and you need to know if there are any long term consequences. There are a lot of questions you need answers to. Is this a good deal? Is it a good offer or a bad offer? Can I get a better deal? What’s the difference between a common law peace bond and a section 810 peace bond? What’s the difference between an absolute discharge and a conditional discharge? Will I have a criminal record? Will I be able to travel to the States? Can I get a pardon later? Will I need a pardon? When can I get a pardon?  Does a pardon destroy my criminal record? If I get a pardon can I go to the States then? Will it affect my ability to get a job in the future? What happens to my fingerprints and photographs? What’s a victim fine surcharge and will I have to pay it?

Our office is across the street from the courthouse. Come across the street and talk to us. Adjourn (postpone) the case, bring your disclosure and let’s talk about your situation. You can come just for a consultation or we can arrange a fee that is not dependant on how many court appearances there are. Don’t be just another statistic. Let us help you figure out the right decisions to make

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