Who is the best fictional lawyer of all-time?

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It is a question that ­has divided law offices, torn law-school friendships apart and driven legal nerds to the brink of madness. 

Who is the best fictional lawyer of all-time?

Until recently this has been a question reserved for philosophers. But now, we have the technology to answer the age-old question in the most democratic way possible – an NCAA-style bracket tournament.

And so, at the end of November, the top legal minds at my firm, Abergel Goldstein & Partners, spend days compiling an exhaustive list of the top fictional lawyers. And now we make them battle in a head-to-head competition.

Using a secret scientific method, we have chosen and ranked 64 fictional lawyers from movies, hour-long dramas, cartoons, and sitcoms. Each week, a popular vote will determine which lawyers move on to the next round and which lawyers are thrown out of court.

What qualities does the best fictional lawyer possess? Maybe they display realistic courtroom skills. Perhaps they have the chops to carry the TV show or movie. Maybe they are charismatic and charming. But there really is no 3-part functional and objective test to be employed here. It is all up to the will of the people.

The Simpson’s Lionel Hutz is seeded first in the Cartoon bracket. His courtroom tactical skills are undeniable, “Don't worry, Homer. I have a fool-proof strategy to get you out of here: surprise witnesses, each more surprising than the last. I tell you, the judge won't know what hit him!”

Ben Matlock claimed the top seed in the hour-long drama category. Matlock, the renowned, folksy yet cantankerous defense attorney is worth every penny of his $100,000 retainer fee and should be a role model for any criminal defense lawyer. 

Atticus Finch fought a system of institutionalized racism in the 1962 film adaptation of To Kill a Mockingbird. Although Finch is the number-one seed in the movie category he may carry come baggage following the publication of Go Set a Watchman in 2015. 

Barry Zuckerkorn, the Bluth family’s lawyer, took the top seed in the sitcom category. Because you can’t try a husband and wife for the same crime, right?

However, the full list of fictional lawyers and their rankings were not without some controversy. 

Some pedantic critics decried the inclusion of lawyers like cartoon Johnnie Cochran and Lesra Martin from the movie The Hurricane because they are real people and not fictional lawyers. Technically correct, but this tournament only considers the fictional representation of these lawyers not their real-life catalogue of work.

Some critics were quick to point out that Erin Brockovich was only a law-clerk and not a full-fledged member of the bar. Yes, again technically true, but Brockovich did take down Pacific Gas and Electric Company and kick some legal butt. She is a worthy contestant.

There were some from the chattering class who disputed our rankings. Why is Denny Crane from Boston Legal seeded 16th, they whined?

And some of the olds wanted more L.A. Law lawyers included on the list.

All of these concerns are interesting but ultimately misplaced. The tournament list is perfect – it is all of the critics who are wrong.

Every real-life lawyer has their favorite fake lawyer. Some of us were inspired to become lawyer because a television or movie character. We all name-drop fictional lawyers in our closing argument. And we all strive for the real-life Matlock moment where the case is won with one well timed question.

But this is a battle that will not be won or lost in the courtroom. 

It is time to choose your champion and head over to the AGP website and vote in the tournament

There is a new round of voting each week. Only the victorious lawyers will advance with the ultimate champion crowned on February 3, 2019.

Scheer’s guns and gangs strategy a simple plan for simple minds

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Andrew Scheer and the federal Conservative party have a plan to crack down on guns and gangs. Scheer’s plan is a simple one: End automatic bail eligibility for gang members, revoke parole for gang members and impose minimum sentences for some gang-related offences. Scheer says that his plan, unlike Justin Trudeau’s plan that puts criminals first, will keep Canadians safe.

But simple plans are often the product of simple minds and, worse yet, Scheer’s plan is built on a foundation of half-truths and unconstitutionality.

So, join me as we take a trip of discovery, point by disingenuous point, through Scheer’s gang plan.

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Situation one: A known gang member is arrested. Scheer’s claim: Under Trudeau, the gang member is automatically eligible for bail. Scheer’s plan: Automatic detention and the accused must prove they should be released.

Every person accused of a crime is automatically eligible for bail and, usually, because of pesky principles such as the presumption of innocence, it is the state that must show why detention is necessary. Perhaps the accused is a flight risk or maybe there is a likelihood that they will commit further offences or, in rare cases, their release could undermine confidence in the justice system. In any of these cases, gang member or not, the accused will be detained.

But, in some cases, the script is flipped and the onus shifts to the accused. If the accused was already out on bail or the offence involved a firearm, terrorism or the trafficking of hard drugs, it is then the accused who must show why they should be released.

And what about gang-related crimes? It is already the case that when an offence is alleged to have been committed for the benefit of or at the direction of or in association with a criminal organization, it is the accused who must prove why they should be released.

Scheer’s proposal adds nothing but torqued rhetoric.

But Scheer not only simply misrepresents the current state of the law he also suggests a radical and unconstitutional expansion of reverse-onus bail provisions.

You see, although criminal organizations are defined in the Criminal Code, there is no specific definition of “gang” or “known gang member.” In the eyes of the police — and I wager, Scheer — the definition of “gang member” is broad and sweeping. Someone can be labelled a gang member if they are found to be displaying common or symbolic gang identification or if they have been seen with a gang member or if there is other information that the person is a “gang member.”

Scheer’s plan is a recipe for racism and discrimination. Left undefined, the word “gang” is often a dog whistle. Scheer’s plan is also highly unconstitutional. Under the Conservatives, a “known gang member” with no prior criminal record who steals a chocolate bar would face a reverse-onus bail situation. This is a state of affairs that no court would ever let stand.

Situation two: A known full-patch biker gang member is arrested. Scheer’s claim: Under Trudeau, prosecutors must prove the known biker gang is a criminal group. Scheer’s plan: The known biker gang is considered a criminal group.

Yes, sometimes, prosecutors need to prove things. That’s sort of their job. But it is not difficult to prove the Hells Angels are a criminal organization.

Scheer offers no details by which criteria these “known gangs” will be defined. Nor is there any evidence that the small step of proving that an organization meets the current definition of a criminal organization has imperilled prosecutions or resulted in decreased public safety.

In short, this Scheer proposal is a solution in search of a problem.

Situation three: Convicted gang member is paroled and reunites with former gang. Scheer’s claim: Under Trudeau: nothing happens. 

Scheer’s plan: Gang member goes back to prison.

When someone is released on parole, they are still serving their sentence and there are always conditions attached to that parole. Those conditions almost always include non-association conditions. The terms can be very specific (to not associate with named people) or very broad (to not associate with anyone with a criminal record). Any violation of those conditions results in the automatic revocation of parole and a return to jail.

It is an outright lie to say that if a gang member is released and reunites with their former gang, nothing happens. And remember how broad the definition of a “gang member” can be. Scheer’s plan will result in the imprisonment of a disproportionate number of racialized minorities for simply returning to their neighbourhoods.

And courts tend to frown upon laws that are so broad and vague that they could result in the deprivation of liberty without the commission of any offence.

On to Scheer’s last three situations, which are all similar — so let’s deal with those together.

Situation: A gang member tells someone to steal a car, or commits aggravated assault or tells someone to commit aggravated assault on behalf of a gang. Scheer’s claim: Under Trudeau, they get a suspended sentence or a fine. 

Scheer’s plan: They get a mandatory sentence in federal prison.

Let’s call out the lie first. A gang member (or anyone) who permanently wounds or mains someone — in any circumstance — will almost never receive a suspended sentence or a fine. Just because a sentence is possible does not mean it is at all likely.

To illustrate this point, let’s turn Scheer’s twisted logic back at him. Currently, there is no mandatory minimum sentence for manslaughter. This means a sentence anywhere from a small fine to life in prison is possible. So, under Scheer’s plan, can it be said that a gang member who commits manslaughter will receive only a suspended sentence or fine? Of course not.

But there is nothing in Scheer’s proposal that would change the possible sentence for manslaughter. So why is Andrew Scheer soft on gang manslaughterers?

Scheer’s solution to the strawman he has built is minimum sentences. This is not surprising. Minimum sentences are the first chapter in the Conservatives small-minded justice playbook. And like much of Conservative justice policy, it sounds tough but simply doesn’t work.

All the available evidence shows that minimum sentences don’t deter crime. Even worse, minimum sentences have been shown to lead to higher rates of recidivism and less safe communities. They also have been shown to be a major factor in our country’s ever-increasing court delays.

Scheer not only misrepresents the current legal framework and realities in the justice system but he proposes a solution that won’t reduce crime and will exacerbate the delay problems in our courts.

Oh, and minimum sentences after minimum sentences — in addition to much of Stephen Harper’s criminal justice laws — have already been found to violate the Constitution. If Scheer is going to mislead Canadians, he could at least do it in a way that doesn’t violate the Charter.

There you have it. Andrew Scheer’s plan to crack down on gangs and make Canada safer is built on a misleading foundation. Scheer misrepresents the current state of the Criminal Code, he lies about soft sentences being handed out under Trudeau and he provides an overly broad and oddly specific list of non-fixes.

There is a desperate need to revaluate how we tackle gun violence in this country.

But Scheer’s proposals do us all a disservice. Not only will they not work but they muddy the intellectual waters of this important policy debate.

It is unfortunate that when there is so much to be critical of when it comes to Liberal justice policy Scheer has decided to drink the leftover Harper Kool-Aid. 

Time for the civil bar to step up

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Last week Pro Bono Ontario dropped the bombshell that they would be forced to shutter their offices in Toronto and Ottawa because of a $500,000 funding gap. Private funders, apparently, can no longer support the program. So, civil lawyers took to the opinion pages and social media to defend the little guy.

Our courts are full of little guys. The single mother who was improperly denied support payments. The immigrant who fell behind on rent and faces eviction by a predatory landlord. The working father who was wrongfully terminated. These are the clients that Pro Bono Ontario helps. These are the little guys will now be left to face the machinery of the legal system on their own.

And they will be chewed-up and spit-out.

There is no question that the people assisted by Pro Bono Ontario are all in dire straits. Many of Pro Bono’s clients suffer from poverty, mental health issues and social marginalization. But, there are also the middle class who can’t afford the high fees charged by the civil bar. 

The one thing every Pro Bono client has in common is that they can’t afford admission into the boardrooms of Bay Street. 

Pro Bono Ontario is a Band-Aid on the gaping wound that is access to justice – a problem driven by the fact that the fees charge by civil lawyers are simple out of reach for anybody but the well-off.

According to the results of Canadian Lawyer’s 2015 Legal Fees Survey, the average cost of a two-day trial was more than $30,000. An amount made even more obscene by that fact that this was an increase of 43 percent from the previous year. Hourly rates over $400 are not uncommon. And we wonder why there is an access to justice problem.

Law is, after all, a business and like any business, profit matters. “This year was a good year,” Eric Gossin of Toronto’s Stancer Gossin Rose LLP told Canadian Lawyer in 2018. “All of us seem to be achieving a higher hourly rate in terms of what we tell the clients we are charging.”

The solution to access to justice issues cannot just include Pro Bono Ontario. Civil lawyers need to take a hard look in the mirror and come to grips with the role they have played in creating the access-to-justice problem.

Simple put – civil lawyers need to lower their fees. It is great that some lawyers volunteer their time to Pro Bono Ontario – but more can and must be done. Self-congratulations over donating three pro bono hours every three months is simple not enough.

Last week I made this abominable suggestion on Twitter and was met with an immediate backlash. The arguments from the civil bar ranged from the absurd (Bay St. lawyers would not be competent to handle Pro-Bono-type cases) to the blissfully circular (but my hourly rates put me beyond the reach of non-wealthy clients).

Well then, civil lawyers perhaps you should – on occasion – lower your hourly rate. Stop by my office and I will show you how. 

There are lots of civil lawyers who do go above and beyond and who do generously volunteer their time and expertise. Good for them. But as a whole the civil bar needs to do more. They need to advocate for systemic changes in how their services are priced and delivered. And they need to start at their own firms.

“But there seems to be a comfortable lack of self-awareness on the part of the civil bar. It does after all take some gumption to record a video decrying the lack of funding for Pro Bono Ontario, as Advocates’ Society President Brian Gover did,from the Advocates’ Society’s conference held in Laguna Beach California.

The latest suggestion from the towers of Bay Street is the idea of a flat tax on Law Society fees to bridge Pro Bono Ontario’s funding gap. Another short-sighted plan. Why should young lawyers, many of whom have massive law school debts, who have just emerged from a cut-throat articling process, and who, by necessity, work almost for free subsidize a program that exists in large part due of the excesses of Bay Street?

Perhaps, as some have suggested, the government should step in to fund Pro Bono Ontario? After all, a 2017 return-on-investment analysis showed that, on a total budget of $600,000, Pro Bono Ontario saved the government almost six million dollars. But again, why should the government subsidize a program that exists because of Bay Street’s ridiculous fee structure? 

Carolyn Mulroney has said that the government would continue to provide Pro Bono Ontario with rent free space – just as the Liberal government did. But she went on to “encourage Pro Bono Ontario to work with its private-sector partners, Legal Aid Ontario, the Law Foundation of Ontario and the Law Society of Ontario to find solutions to its long-term funding issues.”

There is room for the government to invest in Pro Bono Ontario. But everyone needs to do their part. 

And a word of caution to the civil bar: it is a risky move to invite the government into a self-regulating profession – especially when, unlike in criminal cases, they are not a litigant. If civil lawyers cannot regulate their own fees would they suggest that the government should?

So, what is the solution?

Maybe next year’s Laguna Beach money could be donated to Pro Bono Ontario? Maybe each Bay Street firm could sell one of their valuable pieces of art to help Pro Bono Ontario? 

Or perhaps civil lawyers could commit to charging some clients a little bit less and commit to work towards structural changes that would ensure that it’s not just large corporations and the wealthy that have access to the courts.

But even then, there will be a need for Pro Bono’s services. Some of the people who need the type of justice that can only be found in the courts will not be able to afford it – at any price. 

But until civil lawyers take a hard look in the mirror not even the Band-Aid of Pro Bono Ontario will be enough to get access to justice system off life support.

With Bill C-75 Liberals Break Three Promises

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In 2015, prior to the last federal election, the then-third-party Liberals made three promises that warmed the hearts of lawyers who work in the criminal-justice trenches.

First, the Liberals said they were going to base their justice policy on facts, not make up facts to suit a preferred policy. It was a simple promise but a breath of fresh air after a decade of ideologically driven justice policy from the Conservatives. 

Harper’s tough-on-crime rhetoric left us with more mandatory minimum sentences, watered-down privacy rights and colder penal policies. The Conservatives said that these measures would deter crime and make our communities safer — even when the evidence suggested precisely the opposite.

Second, the Liberals said they would strengthen parliamentary committees so that they could better scrutinize legislation. Better government, they said, starts with better ideas. Parliamentary committees should not exist to toe the party line but to ensure that expert evidence is incorporated into legislation so new laws actually achieve their objectives.

Third, the Liberals said they would overhaul the justice system to ensure it achieves fair and just results.  

It all sounded so good. But it has all gone so wrong.

After waiting years for the promised justice overhaul, in the dying days of March 2018, and on the eve of a long weekend, Justice Minister Jody Wilson-Raybould unveiled her self-described “bold” criminal justice reforms. The legislation, Bill C-75, was advertised as a silver bullet to unclog our courts and bring about a “cultural shift” that would result in a fairer justice system. 

Bill C-75 promised to speed up court cases by eliminating preliminary hearings for all but the most serious matters. It promised to make jury trials fairer by limiting an accused’s ability to select a jury of his peers. Also, quietly slipped into the bill was a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify. 

Wilson-Raybould’s bold legislation was met with an immediate, loud and visceral condemnation by criminal defence lawyers who called the bill an “utter and complete betrayal,” an erosion of procedural safeguards that “gravely misses the mark,” a “regressive blindside” and “worse than anything Harper ever did.”

Last week, Bill C-75 passed through the justice committee with few changes and is now one step closer to becoming law. 

Over the last decade, I have appeared dozens of times before various parliamentary committees to testify on new legislation. Last month, I appeared before the justice committee and offered expert evidence on Bill C-75.

I have seen how the parliamentary committees operated under the control of both Harper’s Conservatives and Trudeau’s Liberals. Sadly, there is little difference.

Under Harper, the committees ignored expert evidence and refused reasonable amendments that would improve the legislation and avoid laws of dubious constitutionality. 

The same is true under the Trudeau government. The only difference is that the Liberals promised to do better.

Despite hearing from 95 expert witnesses, the committee studying Bill C-75 recommended few changes. Even when there was a concurrence of opinion from these witnesses on various parts of the bill, there still were no changes. The Liberals, you see, voted as a block to keep the legislation mostly as originally proposed. It is almost like they made up their minds before the whole process started.

Sure, there were a few small changes to the bill. The universally criticized provisions of the bill that would allow police officers to file written evidence and avoid cross-examination was removed. And the government bowed to Conservative outrage over the hybridization of some offences.  

But most amendments based on the evidence presented at committee were rejected by the Liberal block. 

Take Bill C-75’s elimination of preliminary inquiries for all but the most serious offences. The government said this would speed up trials. But the expert evidence — from defence counsel, prosecutors, academics and civil rights groups — was unanimous that preliminary hearings actually save court time and are an important procedural safeguard to avoid wrongful convictions.

There was no explanation for why proposed amendments to preserve preliminary inquiries, in accord with the expert evidence, were rejected by every Liberal on the committee. 

And so, with Bill C-75, the liberals have broken three promises: They ignored the facts, they turned their backs on a constructive and evidence-based committee process and they have done little to make the justice system fairer. 

The last betrayal may come as a shock. 

The Liberals have not only done almost nothing to reverse the damage inflicted by the Harper government, but they seem strangely proud to advance legislation that erodes procedural protections designed to prevent wrongful convictions. 

Harper made no secret about his justice agenda. And he, like Trudeau, may have ignored evidence when it conflicted with that agenda — but at least Harper was a man of his word. 

Pot Pardons: My choice is what I choose to do And if I'm causing no harm It shouldn't bother you

Last week, the Liberal government, in a rare move, almost followed through on a key election promise. Marijuana is now legal in Canada — sort of. 

During the 2015 election, the Liberals promised to “remove marijuana consumption and incidental possession from the Criminal Code.” And while it is true that Canadians can now smoke and possess marijuana, the new law leaves in place the criminalization of cannabis in many circumstances. This continued criminalization has led to serious concerns about the new law’s constitutionality. But it is a step in the right direction.

It was always a fool’s errand to believe that punishing the users of cannabis would result in any social good. The criminalization of marijuana did not deter the relatively harmless activity of burring one down. Canada’s cannabis policy should have been simple: If you don't like my fire,
then don't come around. Instead, for more than a century, the government arrested, prosecuted and criminalized marijuana use. 

And the result is that more than 500,000 Canadians have a criminal record for simple possession of marijuana. Tragically, marijuana laws were disproportionately enforced on marginalized groups and racial minorities.

The stigmatizing effect of a criminal record for simple pot possession is a back-breaking burden that closes employment and educational opportunities. A marijuana conviction makes it harder to volunteer and limits full participation in society. And travel south of the border? Forget about it. It is easier to cross the U.S. border with a serious violent conviction on your criminal record than it is with a minor drug conviction.

The Liberal’s bill that legalized marijuana took no steps to correct this historic wrong. There was no mention of pardons, record suspensions or expungements to be found in C-45. 

The government insisted that remedies of historic injustices would only be considered after marijuana was legalized — because, apparently, it is difficult to do more than one thing at a time. 

The government had three years to plan for the day when marijuana would be legal, but Public Safety Minister Ralph Goodale’s announcement last week of a plan to pardon historic convictions contained few details. 

We were simply told that a plan to offer pardons to those who have completed their marijuana sentence and legislation would be coming soon. There were few details except that the $631 pardon application fee and waiting periods would be waived.

That’s not good enough.

For a century, the government actively prosecuted under the unjust marijuana laws. The government must now be proactive in correcting that historic mistake. Waiving fees and the five-year waiting period is a start, but it’s only the smallest of starts.

In recognition of the serious impacts of a marijuana record and the historic racism of Canada’s drug laws, the government must do more. 

The answer is simple — automatic expungements. No cost. No wait. No application. No questions.

By insisting that the sentence is fully completed before a pardon is available, the government discriminates against the poor. Marijuana convictions often were punished by way of a fine. Sometimes, it was a fine of hundreds or thousands of dollars. An impoverished offender who is too poor to pay that fine cannot apply for a pardon.

The application process to obtain a pardon is a complex 10-step process that often requires the assistance of a professional. This means marginalized individuals, people with mental health issues or those who suffer from homelessness will find it difficult to actually make an application.

And then there is the waiting time. The government may waive the five-year waiting period, but there can be delays of up to a year for a pardon application to be processed. There is already a massive backlog of applications, and a flood of hundreds of thousands of new applications won’t help with that delay.

Automatic expungements of criminal records for simple pot possession would not only recognize these continuing barriers, it would be the fair thing to do. 

A streamlined, merit-based and free-pardon process should be reserved for more serious marijuana crimes, such as trafficking or cultivation.

Canada’s pardon system is broken. Some of the regressive legislative changes introduced by the Harper government — laws that were opposed by the Liberals — have been found unconstitutional. Now in power, the Liberals have taken no action. 

The public overwhelmingly supports reforms to the pardon system. But the Liberals have taken no action.

So, you can excuse the lack of blind trust when it comes to the vague plans on pot pardons.

Promises are cheap. Promises in the months before an election are cheaper. And given that there will be a federal election in 2019, any bill introduced now has little chance of becoming law any time soon.

Marijuana might be sort of legal today, but there are half-a-million Canadians who continue to be impacted by the ghosts of the historic, wrongheaded and discriminatory criminalization of cannabis.

Promises and half-measures are simply not enough to correct historic wrongs.

As the Liberals were so fond of saying in 2015, it’s time for some bold action and real change.