Institutional bias favouring Crown attorneys preventing level playing field

So I have started a monthly column at The Lawyer's Daily - so you should go there to check it out.  Here is this months rant.

There have long been whispers in the criminal defence bar that Ontario’s judicial appointment process is broken.

Since June 13, 2017, when Ottawa area MP Yasir Naqvi took the reins as Ontario’s attorney general, 70 per cent of his appointments to the bench have been drawn from the Crown’s office. Over the last eight months 17 judges have been appointed to the Ontario Court of Justice — 12 of those appointments were Crown attorneys and five were defence counsel.

That does not seem like a level playing field.

But this is not a new problem special to Naqvi — it has been this way for decades.

Don’t get me wrong — Crown attorneys can and do make fantastic judges. Some of my very favourite judges are former Crown attorneys and they have proven to be smart, fair, compassionate and a pleasure to appear before. But the simple numbers cast doubt on what at first blush appears to be a rigorous and independent provincial judicial application and review process.

In Ontario aspiring judges must submit 14 copies of their application packageto an independent committee which reviews and interviews the candidates and provides a ranked list to the attorney general who then makes his picks.

The independent committee is made up of a mix of members from the bench, bar and general public and its composition is legislatively required to reflect the diversity of Ontario’s population, including gender, geography, racial and cultural minorities. And the committee is not stacked with Crowns or provincial bagmen and it currently includes David M. Humphrey — a respected criminal defence lawyer. Also, I have a bit of inside information: since Naqvi became Ontario’s chief legal adviser to the Her Majesty the Queen in Right of Ontario many many excellent defence counsel have submitted judicial applications.

So, excellent criminal lawyers are applying, the ranking process is independent, and the selection committee includes a powerful voice from the defence bar — so where does the inequity in appointments come from?

It may be that systemic institutional bias favours Crown attorneys.

Perhaps one small example: If senior defence counsel wish to take a continuing legal education course they have to not only pay for the program but take unpaid time off work to attend it. You see, in private practice there are no salaries — you eat what you kill. Superstars in the Crown’s office can take advantage of internal courses, subsidized conferences and they still get paid their salaries — it’s all pensionable time. So maybe Crown lawyers just look better on paper and get ranked higher by the committee. Or maybe they don’t and the attorney general just prefers to pick his own. It is impossible to say — the lists, the AG’s decision and his reasons are all secret. But it seems that Naqvi may finally be taking some baby steps to level the judicial playing field. His latest appointment of three judges to the Ontario Court of Justice in Ottawa included two former defence lawyers (let's be clear — these were no token appointments but legal heavyweights).

So only another seven rounds of appointments like the latest one and Naqvi’s numbers will be even. And we all should hope that Naqvi’s move toward parity continues. A diverse bench is to all of our benefit. Former defence counsel know the difficulties of private practice — no pension, difficult clients and meagre legal aid pay. These former defence counsel judges are no more compassionate or intelligent than their brothers and sisters who were plucked from the Crown’s office but they have first-hand experience with a different side of the adversarial system. In the post-Jordan era of overflowing dockets, where every adjournment could lead to serious cases being thrown out of court, judges who have first-hand experience dealing with retainer delays, unrepresented accused and difficult clients bring a special value to the bench.

For our justice system to be truly just, our bench must be comprised by a diversity of race, religion and perspective — but quite frankly we can do better on all fronts.

Conservatives are up to their old disingenuous tricks

This month Manitoba’s Criminal Review Board granted Will Baker an absolute discharge – and then the theatrical outrage hit the political fan, because Baker is better known as Vince Li, the man responsible for a gruesome and widely publicised 2008 killing on a Greyhound bus.

But Baker was not really responsible. Baker suffers from schizophrenia. At his trial both the Crown and defence counsel agreed that his actions were driven by mental illness and that he should not be found guilty of the gruesome murder.

You see, in Canada we exact punishment, vengeance and retribution against those who commit serious violent offences. But we do not punish people who don’t know right from wrong and because of mental illness cannot appreciate the nature and consequences of their actions. 

In Canada, people who have illnesses like Baker receive treatment and live under restrictions until they no longer pose a risk to the public.

Baker did not get off scot-free. For years following the finding of not criminally responsible, Baker was confined to a secure mental health centre and received intense treatment. Each year a group of judges, physiologists, doctors, experts and members of the public reviewed his case. Gradually Baker was given more and more liberty – first escorted visits to the community, then day passes and eventually the right to live on his own.

Baker passed each test – he took his medication, followed the conditions and ultimately the review board of community members, experts, doctors and lawyers found that he no longer posed a threat to the community. 

It was only after nine years of intense and successful treatment that Baker was granted an absolute discharge.
 
Canada’s progressive Review Board system has been incredibly successful. The rate of recidivism for NCR individuals is much lower than for offenders who are sentenced to traditional jail. In fact, less than one per cent of NCR individuals go on to commit a serious violent crime once back in the community.

But facts have never got in the way of fake Conservative outrage. Mere days after Baker’s discharge Conservative Party interim leader Rona Ambrose rose in the House of Commons to politicize the issue:

"Mr. Speaker, the issue is bigger than that. We know the Prime Minister voted against our legislation, which was triggered by Tim McLean's death, that would make sure people like Vince Li [Will Baker] would not be allowed out.

When the minister and the Prime Minister look at reforming the justice system, it is not about the rights of criminals that we are concerned about on this side of the House. We think if people do this, they lose a lot of their rights."

Ambrose did not mention that Baker had been suffering from untreated schizophrenia at the time of the offence. She failed to mention that the Crown agreed Baker should be found not criminally responsible. She did not reference the robust review board process where an individual is only discharged after a panel of experts is satisfied that public safety would not be jeopardized. 

Sometimes facts can get in the way of politics.

Not once did she mention mental illness – which is ironic given that a few short weeks before Ambrose’s misleading remarks in the House of Commons she tweeted:

"Every time we talk about mental health we get stronger and make those around us stronger too. Together we can #EndTheStigma #BellLetsTalk."

Apparently Ambrose only pays lip service to mental health when it is politically convenient.

Ambrose’s self-serving commentary on Baker’s case was also simply untrue. The Conservatives’ Not Criminally Responsible Reform Act, which was passed in 2014, did not, as Ambrose claimed, “make sure people like Vince Li would not be allowed out.” 

In fact, the Conservative bill mandates that someone like Baker should be released if a court is “satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person.” This is the same test Baker passed before the review board.

In other words Ambrose did not only do the opposite of #EndTheStigma but she also misled the House of Commons. 
 
But there is always lower in the muck one can sink.
 
Last week Conservative Justice Critic Rob Nicolson sent out a fundraising email that tried to connect the dots between Baker’s absolute discharge for the “brutal murder” and the need to donate to the Conservative Party. 
 

Again, Nicolson made no mention of mental illness, the robust protections afforded to society by the review board, or the fact that the Crown agreed to the NCR finding.
 
At the end of the day fear-based politicking may win some votes and raise some money but there is a cost – an erosion of public trust in our institutions and a dimming of the vibrancy of our democracy.
 
Perhaps it is time that everyone who tweeted on #BellLetsTalk day stood up to Ambrose and Nicolson to really #EndTheStigma.

Plea Bargaining - A Deal with the Devil?

The plea bargain is a deal with the devil — at least according to many members of the public. The public may be right, but the real question is: Just who is the devil in the plea bargain equation?

Let’s first take a step back and go over some basics.

In 1975, the Law Reform Commission of Canada defined a plea bargain as "any agreement by the accused to plead guilty in return for the promise of some benefit."

The essence of any plea bargain is a quid pro quo

So the quid: The accused gives up their constitutional right to be presumed innocent and waives their right to a trial. In other words, the accused relieves the state of the heavy obligation of proving guilt beyond a reasonable doubt.

After all, there is only one guarantee in criminal law — if you plead guilty you will be found guilty. 

And the quo: The accused receives the benefit of reduced charges, or less jail time or some measure of certainty about the ultimate sentence.

But it is not just the accused and the prosecution who benefit from guilty pleas. Plea bargaining is an essential lubricant in the justice system. 

Recently, in R. v. Anthony-Cook, the Supreme Court of Canada described plea agreements as “vitally important to the well-being of our criminal justice system,” without which the justice system would “eventually collapse under its own weight.”

So, everyone wins — unless you are the innocent accused who is induced into pleading guilty. 

The Criminal Code recognizes the fundamental importance that all admissions of guilt are fully voluntary. Before a court can accept a guilty plea, the judge must be satisfied that the accused is acting under their own free will. There is no arm twisting allowed in a plea court.

But all actors in the justice system turn a blind eye to all the subtle arm twisting that takes place outside the courtroom. In reality, many guilty pleas are not truly voluntary.

There is a massive power imbalance between the state and the accused. The state has an army of fully funded prosecutors, investigators and forensic experts. The state is never unrepresented in court, unlike so many impoverished accused. As a starting point, the playing field is far from level.

There are also perverse incentives that many prosecutors can unwittingly leverage to extract guilty pleas.

Take, for example, the case of a homeless accused who is charged with shoplifting. It is all too common for this type of offender to be warehoused in jail, unable to make bail. After a week in Dickensian jail conditions, the man is presented with two options: 

Option one: Plead guilty and walk out of jail today. 

Option two: Plead not guilty and spend three months in jail waiting for a trial. 

How can any plea in these circumstances be truly voluntary? 

Imagine this example: A father is charged with manslaughter in the death of his infant child. The father says he is innocent, but the Crown retains a respected and world-renowned expert who concludes that the child died of shaken baby syndrome. The Crown tells the devastated father that it will seek a lengthy penitentiary sentence if he is found guilty after trial — the father will lose his family, his job and a decade of his life. 

But there is a deal to be had. 

If the father pleads guilty, the Crown will agree to drop the charge from manslaughter to aggravated assault and will agree to only a six-month jail sentence.

This was the real-life choice faced by Richard Brant. He took the deal. Was there really a choice? 

It turned out that the world-renowned expert in Brant’s case was a man now known to be responsible for scores of wrongful convictions — disgraced former pathologist Charles Smith. In 2011 — 15 years after Brant pleaded guilty — the Ontario Court of Appeal found that a miscarriage of justice had occurred and entered an acquittal.

Here’s one more example. A hard-working, pro-social and otherwise loving husband is charged with domestic mischief. It is alleged that during an argument he grabbed his wife’s phone and smashed it. A neighbour called the police. 

Perhaps he was actually guilty or perhaps it was all a misunderstanding. 

His wife does not want to press charges, but once the police are called, it is not her choice. The husband is released from jail on bail, but, despite the wishes of his wife, he is not allowed to contact her in any way. He can’t move back home or see his children. The family’s finances are stretched. The husband is renting an apartment and waiting for his trial (with all the safeguards and fact-finding that such a process entails), but that trial is set for a year away. 

He can’t afford a lawyer, so he asks the Crown to agree to vary his bail conditions so he can move home. 
This is what everyone wants. 

A frequent response from the Crown is: If you plead guilty, we will agree that you can move home. If you don’t plead guilty, there will be no agreement.

These are the types of inducements that lead to wrongful convictions and questionable guilty pleas: 
release from jail, shorter sentence, reduced charges, contact with family and on and on and on.

In 2009, when Brant’s appeal was filed at the Court of Appeal, Justice Michael Code (he was a law professor at the time) called these questionable plea situations the “hidden underbelly of the justice system.”

Defence counsel can be tempted to assist their clients to take the easy way out and make these types of deals. And it is the easy way out — fighting is harder, more stressful and more costly. 

Make no mistake, there are some defence counsel who value a quick plea over a complicated trial.

But also make no mistake, increased responsibility must fall on the shoulders of our Crown attorneys to ensure that discretion is exercised appropriately and there are no improper inducements. 

After all, it is the Crown who holds the balance of power in most plea negotiations. It is the Crown who has the power to agree to a reduced sentence, drop charges, modify facts and modify bail conditions.

With greater power there also must come greater responsibility.

So to answer the question: The inherent power imbalance between the state and the accused provides a pretty powerful indication on who the devil is in most plea deals.

Naqvi: Solution to Court Delays - Call off your Crowns

There is a problem with delays in our justice system. This is true. It is also true that the criminal justice system is an insatiable beast — a black hole that will endlessly devour money and resources.
The fix to delays in our courts is not as easy as simply feeding the beast. But this was the solution proposed by Ontario’s Attorney General Yasir Naqvi earlier this month. Naqvi’s proposed solution of half measures including a handful of new judges and prosecutors is a Band-Aid that will not result in quicker justice.

The only real solution to court delays is to refocus and rethink how we use the justice system — maybe the beast needs a diet.

There can be no debate — delays in our justice system are a very bad thing. With every week, month and year of delay, memories fade, the quality of evidence degrades and victims are denied legal closure. 

And, often intentionally overlooked is the reality that court delays mean that accused persons who are presumed (and often are) innocent suffer ongoing stigma, stress, loss of employment, oppressive bail conditions and incarceration waiting for their trial dates. 

Let’s get one thing straight — there is not one accused person being held in our Dicken-sian provincial jails who is intentionally delaying their day in court. There is simply no benefit to do so. Ontario’s remand centres are violent, overcrowded, humanity-destroying hellscapes, which are completely devoid of any rehabilitation programming or basic human comforts.

No one wants to be in provincial jail waiting for their day in court and every presumed innocent but jailed client I have ever represented begs for a quick trial date.   

Naqvi’s high-profile announcement of 13 more judges and 32 assistant Crown attorneys will do little to ensure faster justice. To put those numbers into context, there are about 60 courthouses in Ontario. So, I look forward to the extra 0.2 judge that the Ottawa courthouse will receive.

Why did Naqvi even announce this ineffective half measure? The answer is simple —court delays are now a political issue.

The seeds of the new political hot potato were sown earlier this year with the Supreme Court of Canada’s decision in Jordan where hard caps were imposed for the amount of constitutionally acceptable pre-trial delay.

It seems the Ontario government was shocked when lower courts actually implemented the time limits.

Last month, an Ottawa judge dismissed a charge of first-degree murder following 48 months of delay and in September the Ontario Court of Appeal threw out serious assault charges after applying the Supreme Court’s delay decision.

When serious charges are thrown out of court, the accused loses the chance to clear their name, victims are denied justice and the public has every right to demand answers.

In short there is public out-rage when cases are thrown out of court — this is what gets the attention of the political class.

So let’s clear the air. The first-degree murder charge was thrown out of court because of the actions of the Crown attorney. The serious assault charge was dismissed because of the ac-tions of the Crown attorney.

The indictment of the Crown’s conduct in both cases was damning. In the first-degree murder prosecution, the assigned Crown refused to allow a colleague to conduct the trial despite the fact his own unavailability caused more than seven months of delays. In the court’s words, “the Crown chose to deliberately ignore delay.”

Maybe this should not have come as a shock. A month earlier, the Court of Appeal de-scribed the same senior Crown’s conduct as “a poster child for the culture of complacency to-wards delay so rightly condemned in Jordan” and a “failure to pay any real heed” to the Charter rights of the accused.

Any public anger should rightly be directed at the actions of the Crown. And this is where the government’s attention should be focused. A handful of additional judges and prosecutors will do little to change a systemic Crown culture of complacency, possessiveness and overzealousness.

The cure to court delays is simple — there must be a culture change at the upper levels of our Crown attorneys’ offices. Resources must be allocated appropriately and rationally. Minor charges should be diverted. Mental health and addiction issues — the root causes of many offences — should be treated and understood not prosecuted. Reasonableness and efficiency — when called for — should be rewarded.

Perhaps if the government and its prosecutors had spent less court time fighting a heavy-handed battle to extract a few dollars in victim fine surcharges from the poor and more time focusing on serious homicides, there would be quicker trials (and fewer charges dismissed due to unconstitutional delay).

Maybe if the government spent money to implement rehabilitative programs in our pro-vincial jails instead of simply warehousing impoverished and addicted offenders, there would be less recidivism and fewer matters in our courts to begin with.

We don’t need more prosecutors — we need more reasonable leadership in government and the ranks of senior Crown attorneys.

If Naqvi is serious about modernizing and streamlining our courts, if he is serious about ensuring faster justice, if he is serious about seeing that murder charges are never thrown out of court due to delays, he must do what is wholly within his power: He must stop feeding the beast and reign in his prosecutors.