RSS FeedThe End of 2-for-1 Credit & the Fallacy of ‘Getting Tough’
The March 8th 2010 issue of Maclean’s, “Canada’s magazine”, has this to say about the Conservative government’s elimination of two-for-one credit for pre-sentence custody:
Do the time
“It seems like a no-brainer: convicted criminals shouldn’t get a break for prison time served prior to court dates. And yet, it’s taken four years for the federal government to enact legislation ending two-for-one jail credits. As the old saying goes: you do the crime, you do the time—the whole time, not just half. Convicted criminals have been gifted shorter sentences by the justice system for too long. It’s time to get tough.”
Fortunately, old sayings do not figure among our sentencing principles. The objectives of our sentencing regime are enumerated at section 718 of the Criminal Code, and they are as follows:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Parliament enacted those objectives to guide the courts in fashioning sentences that are just and appropriate to the circumstances of each case. By looking beyond the obtuse imperative to “get tough”, a judge can craft a sentence that neither threatens the safety and security of the public nor condemns the offender to a lifelong cycle of recidivism.
Equitable and progressive though they might be, however, Parliament’s sentencing principles do not take into account the backlog that plagues the criminal justice system. Too often, prisoners languish in dangerous, dirty, overcrowded jails for weeks and months before their cases can be heard.
It was this dubious “gift” that the two-for-one sentencing regime was meant to address: the policy acknowledged that outrageous pre-sentence delays, coupled with deplorable conditions in some Canadian prisons, resulted in suffering that our sentencing provisions did not countenance. Moreover, this hardship is utterly preventable, but for a lack of public or political will. (As ever, “get tough” is a politically unassailable stance.)
To be sure, giving double credit was a bandage on the problem, not a curative. Jail conditions remain execrable, and the Attorney General’s “Justice on Target” initiative has only just begun to rein in administrative delay. But instead of curing these ills, the government has decided to rip off the bandage.
In that respect, Maclean’s was right: it’s a no-brainer.
Criminal Defence Lawyers Need Not Apply
Newsflash – the Ontario Government is looking for outstanding members of the public to sit on 27 separate police services boards throughout the province. Criminal defence lawyers need not apply.
What? Did I read that right?
Strangely yes. On the Ontario Government Public Appointment Secretariat’s website found at: http://www.pas.gov.on.ca/scripts/en/upcomingVac.asp, there are nearly 200 postings for various positions on provincial agencies, boards and commissions.
But in the requirement section for the police services board postings, it states, “No judge, justice of the peace, police officer or person who practises criminal law as a defence counsel may sit as a member of a board.”
Presumably this restriction is present because of a perceived conflict of interest by the enumerated professions. But in the case of criminal defence lawyers, I don’t see it.
Is it suggesting that criminal lawyers are blindly partial to criminals and that they do not want to live in safe communities? Or perhaps they are too inclined towards Charter rights, fairness and the rule of law?
Unlike the police and members of the judiciary, the defence bar is not paid through government salaries. If they are paid government money at all, it is by piecemeal legal aid certificates. But if you think about it, it is in everyone’s best interest including defence lawyers for the police to do a good job.
Let’s be clear, police services boards exist for effective administration of police organizations. They do not, or at least should not, direct or participate in police operations. Their role is to set administrative and fiscal policy.
Accordingly, a defence lawyer serving on a police services board is not in any conflict of interest.
Neither is it a general conflict for other professions like chartered accountants, business owners, or Commedia dell’Arte clowns for that matter to serve. The question that should be asked is who best can serve in the required capacity.
To say that criminal defence lawyers are in conflict because they make their living representing “criminals” is to miss the point. Having a thorough understanding of the criminal justice system is an asset and indubitably would be a positive influence on the effectiveness of police services boards.
Aspiring law student possible victim of a hate crime?
In the early hours of October 18, an openly gay man named Christopher Skinner was brutally murdered. After reportedly being attacked by a group of young men, he was run over by an SUV and left to die.
Friends with Christopher the night he was murdered believe that he was targeted as a result of his sexuality. At this time, police say they have no evidence to support that theory. Evidence is still being combed at this point.
It has been reported that Christopher had recently written the LSAT and had plans to attend law school.
EDGE Boston notes that, “But the ferocity of the assault is consistent with the ‘overkill’ that is often part of anti-gay bias crimes.”
In the UK, a new report points to a rise in anti-gay attacks in London.
This tragic murder of Christopher Skinner comes on the heels of recently reported gay-bashings in the province, in London and Thunder Bay.
Hate crimes laws have often proved controversial. Currently, U.S. lawmakers, politicians, and others are awaiting a Senate decision on a bill that would extend hate crime protections to gay individuals.
Italy has recently voted down similar legislation.
Into the minds of the condemned: statements from Death Row
What’s it like to live on Death Row? What’s it like to die there?
I wonder how a person can stand to wait in a small cell, watching the second hand of a clock tick down to their execution? After an average 10 year wait, the person is finally led down a hallway, strapped to a gurney, and injected with a lethal cocktail of drugs.
Since 1982, when Texas began utilizing lethal injections to kill people, 441 people have been executed by the State. Moments before the execution, the warden asked each of these inmates whether they had any last words. All of their last statements have been recorded.
A friend of mine sent me a link to the Texas Department of Criminal Justice’s Death Row page, which contains every last statement given since 1982.
I have to admit that I sat for an hour and read over a hundred of these last statements. There was something incredibly powerful and compelling about the final words that a person speaks when they know they are about to die. I had a hard time pulling myself away from them.
It doesn’t matter whether you are for or against capital punishment. If we move beyond the cold statistics of the offender’s height, race, and education level, their last statements poignantly remind us that these convicts are human beings that bleed and feel pain like you and I.
Many of the statements express remorse. Others are shocking. Some are even funny. But the common thread that ties all of the statements together is the foreboding sense of inevitability, resignation, and acceptance of a pre-determined fate. I have reproduced some of the statements below (in their entirety):
The Case of Derek Twyman: A Punishment of Unusual Cruelty
From time to time we read or hear about sentences for startling amounts of time to be served by those convicted of serious crimes south of the border. Hundreds of years in prison or multiple life sentences are examples of some of the extreme punishments ordered by U.S. judges in cases where society is expected to agree that the crime committed is simply so heinous that the offender should never be free again.
Could burglary be such a crime?
Derek Twyman was 14-years-old when he and his family moved from the province of Ontario to the state of North Carolina. His father, Donald, had plans to start a furniture business there, and the family was going to build a future for themselves in the south. Unfortunately, shortly after moving to the U.S., Derek fell in with the wrong crowd and got caught up in a lifestyle that included a tendency to participate in acts of juvenile delinquency.
In 1989 he was on parole when he was picked up by the police in connection with a series of break-and-enters of homes belonging to affluent residents in North Carolina. Derek plead guilty to the offences he was accused of, but was shown little mercy by Judge Thomas W. Ross, who sentenced him to four consecutive 40-year sentences in prison – an astonishing total of 160 years behind bars for non-violent property offences. His projected release date is the year 2055, when he will be approximately 90-years-old.
The law that provided for such an excessive sentence was the misnamed Fair Sentencing Act, which was replaced in 1994 by the Structured Sentencing Act in an attempt to restore credibility and appropriateness to sentencing. Under the new law, someone who is facing the same groups of charges that Derek did in 1989 would only serve a maximum of 7 ½ years upon conviction, as opposed to the unthinkable century and a half given to Derek.
Putting aside for a moment the well-founded allegations that the original sentence constitutes cruel and unusual punishment, many would think that the new law would at least apply retroactively in order to halt the continuation of unjust sentences set down under the old law. Unfortunately, the Structured Sentencing Act does not apply to offences committed before October 1994, undeterred by the fact that a comparison between the old and new legislation clearly depicts a gross disproportionality between the sentences that raises serious constitutional concerns.
And given that Canada is the only country to which Derek holds citizenship, where might the political forces of Ottawa enter into this mess? Nowhere it seems. Despite Canada being a signatory to the International Prisoner Transfer Program with the U.S., Derek says that to date the Canadian government has not yet attempted to help him in any way, instead choosing to ignore such inhumane treatment of a Canadian citizen imprisoned abroad. If one looks to the requirements a prisoner must meet in order to be considered for a transfer, he is a perfect candidate with the exception of one thing: restitution.
The presiding judge who sentenced Derek to prison also ordered that he pay over $60,000 in restitution to the affluent residents whose homes he was convicted of burglarizing, even though insurance policies likely covered most (if not all) of the losses. The restitution order states that this amount must be paid before Derek can even be considered for deportation to Canada. Apparently it wasn’t considered at sentencing that the convicted person going to prison for 160 years eliminates any realistic possibility of the restitution ever being paid.
Nor did it appear to dawn on the court that by the time Derek is eligible for his next parole review (on merely the second of the four 40-year sentences) the total cost of incarcerating him will be approximately $675,000. In the unlikely event that the intended recipients of the restitution were not covered by insurance, and actually needed it as compensation, the potential fulfillment of that opportunity was most definitely quashed in the most ironic of ways.
Even through the desperate arguments that the prison sentence and accompanying restitution were attempts at promoting deterrence, this entire fiasco reeks of a typical “tough on crime” attitude gone terribly wrong. Word of this travesty is spreading, but at the present time Derek’s liberty is the price being paid for the complete and ignominious failure that was the Fair Sentencing Act.
Derek hasn’t lost hope though. Having now spent over 19 years behind bars for this crime, he still manages to keep his spirit up and remains confident that people will take notice of this injustice. No human being should have to endure the kind of wrongful treatment that he has been subjected to. Now is the time for all of us to add our voices to the growing call for Derek Twyman’s long overdue release.
To help Derek gain the justice and freedom he deserves, please take a moment to sign this online petition:
www.petitiononline.com/dtwyman
Legal Aid to get a much-needed funding boost
After years of neglect, the Legal Aid system in Ontario has been scheduled for an overhaul. On Tuesday, Attorney General Chris Bentley will announce $150 million in new funding for Legal Aid, as well as significant changes to the way the system works.
Legal Aid Ontario (LAO) is an independent, publically funded organization which is dedicated to improving access to justice in this province. With a current budget of about $288 million, the infusion of $150 million into the system over the next four years represents a huge boost.
Kudos are due to the Criminal Lawyers Association and senior defence lawyers across Ontario for taking dramatic steps to raise the public’s awareness of the ongoing injustices in the Legal Aid system. Kudos are equally due to AG Chris Bentley for listening and taking action to correct them.
Many members of the public don’t realize what legal aid money is actually spent on. The new funding will not only be used for criminal defence. In fact, much of the money will probably be directed towards family law services, such as helping people below the poverty line protect the best interests of their children. Among other things, LAO also funds: community clinics (such as the one I work for), duty counsel in court, aboriginal services, compensation for injured workers, tenant rights protection, compensation for victims of crime, and other victims services.
As for the actual changes, we can only speculate until they are officially announced on Tuesday.
However, Bentley has hinted that he will be moving towards a block-fee system rather than an hourly rate for criminal lawyers. Interestingly, this is the system that was previously in place; it was rejected in favour of the hourly wage with maximum hour caps for particular types of work, such as trials, bail hearings, and Charter applications. The block-fee system was criticized for creating an incentive to work as many cases as possible while putting in as few hours of work as possible into each. It remains to be seen how the AG will address these concerns.
It is also expected that in the family law arena, changes will promote more collaborative dispute resolution, such as mediation. This would be a positive step that would free up court resources and make the family law process much less adversarial.
Another change which I am personally hoping for is a Provincial program under s. 802.1 of the Criminal Code that would allow student legal aid clinics to work on summary conviction cases which are punishable by more than 6 months in jail. Having smaller clinics do this type of work would relieve some of the burden on more experienced lawyers, who could direct their efforts towards defending more serious offences.
See also: $150m More Legal Aid for Ontario
Why You Should Never Talk to the Police
Moin A. Yahya, Associate Professor of Law at U. Alberta has posted a couple of interesting videos on why criminal suspects should never talk to the police.
Most experienced defence lawyers will tell you that the first words out of their mouth when they get the 3AM phone call from the jail are: “don’t say anything!”
But for some reason, criminally accused often don’t seem to get it.
The videos feature a professor of law (formerly a defence lawyer) as well as a police officer explaining why suspects would do well to heed the advice and exercise their right to remain silent.
Though the videos are reflective of American law, the principles are largely applicable here in Canada. Though we do not have a 5th Amendment, Canadians have long had a right to silence which is now constitutionally entrenched in s. 7 of the Charter (see R. v. Singh, 2007 SCC 48 for a discussion).
And now, without further ado, here is why you ought not to speak to the police:
If you have limited time, I’d suggest skipping forward to 8:20, where the professor discusses the “top 10 reasons why you should never speak to the police.”
[YouTube clips reposted from U. Alberta's Law Faculty Blog]
SCC: No Privacy Interest in Things We Throw Out
The Supreme Court of Canada today released its decision in R. v. Patrick, 2009 SCC 17, which concerns privacy interests in garbage and other abandoned items. The Court ruled that a police search of garbage abandoned at the curb does not require a warrant and can be done without violating the Charter.
Calgary police suspected that Mr. Patrick was operating an ecstacy lab in his house. Acting on this suspicion, the police attended at the house on six occaisions to retrieve and search through garbage bags, looking for any evidence of criminal activity.
The garbage bags had been placed inside garbage cans, which in turn had been left outside in a small shed for collection. The shed was on Mr. Patrick’s property, and the police had to reach over the property line to grab the bags.
As a result of these searches, police retrieved numerous incriminating pieces of evidence. The bags contained things like packaging for a digital scale, a receipt for muiatic acid, torn up chemical recipes, etc. Some of the items were contaminated with ecstacy.
Partly on the basis of the evidence collected in this way, the police were able to obtain a warrant to search Mr. Patrick’s home. After forcibly entering his home, they discovered precursor chemicals, scales, a pill press, and 2679 ecstacy pills.
Patrick argued that his section 8 Charter right to be free from unreasonable search and seizure had been violated.
The Court unanimously agreed that it had not.
The central issue in the case was whether Patrick, by placing his garbage bags outside to be picked up by municipal garbage collection, had abandoned any interest in those bags.
Thus, the case was was essentially resolved as a property law question.
The majority cited R. v. Dyment, [1988] 2 S.C.R. 417 for the proposition that abandonment of an item automatically disposes of one’s privacy interest in that item:
In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it.”
[Patrick, at para. 22.]
Next, they cited R. v. Stillman, [1997] 1 S.C.R. 607 as standing for the same proposition:
In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded.”
[Patrick, at para. 23.]
A finding that an accused person has abandoned an item seems, therefore, to be dispositive of any section 8 claim about that item. That’s a pretty narrow view of privacy.
Ironically, in Stillman, the seizure of a discarded tissue was held to have breached the accused’s section 8 rights. In that case, a young man was in custody at RCMP headquarters for five days. During the course of his detention, Stillman blew his nose into a tissue and tossed it out. The police retrieved the discarded tissue and obtained Stillman’s DNA.
The Supreme Court in Stillman focussed on the fact that the accused was in custody and had no real alternative to giving up his bodily samples:
[W]hen an accused person is in custody, the production of bodily samples is not an unforeseen occurrence. It is simply the inevitable consequence of the normal functioning of the human body. The police are only able to profit from the production of the samples because the accused is continuously under their surveillance. For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody. … In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples? He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”
[Stillman, at paras. 58-59.]
Why is the custody versus out of custody distinction so significant?
The reality of modern urban life is that the only realistic way to dispose of household garbage is through the municipal waste system. The production of household garbage is not an unforseen occurrence. It is simply the “inevitable consequence” of civilization. The garbage has to go somewhere. It is completely impractical (and probably illegal) to have to burn every piece of garbage that you want to keep private. Indeed, in Calgary, where Mr. Patrick lived, by-laws make it illegal to dispose of household garbage in any way other than by placing it in a waste container for collection.
Thus, whether you are in custody or at home, the waste you produce will eventually end up in the hands of the state.
(Incidentally, Calgary also has a by-law making it illegal to scavenge through someone’s garbage. The police violated the by-law, but I doubt whether anybody wrote them a ticket. Isn’t the existence of this by-law indicative of the important privacy concerns that we have in our waste? The majority dismissed the relevance of the by-law [Patrick, at para. 68].)
Despite recognizing the important privacy concerns with respect to the contents of a household garbage bag the Supreme Court simply could not get past the abandoment issue:
Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.). As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle. Many of us may not wish to disclose these things to the public generally or to the police in particular.
…
[A]part from the key issue of abandonment, the circumstances in this case favour the appellant. The police were trying to find out what was “happening inside a private dwelling, the most private of places” (Plant, at p. 302). … The gathering up of the contents of the bags by the police provided them with a window into the appellant’s private life.
[Patrick, at paras. 30, 40; emphasis mine.]
So when exactly does household waste become abandoned such that the police can freely look into that window? The defence argued that the privacy interest in garbage should continue until the garbage becomes anonymous. The Court rejected this view outright:
The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house.
[Patrick, at para. 54.]
Is that actually “too extravagant to contemplate?” Is the defence’s proposal such a bad idea? I certainly think that the personal items I throw in the trash ought to remain private until they cease to exist. I bet a lot of Canadians would agree with me. The municipal garbage system, to me, is like an Orwellian memory hole.
The Court concluded that the moment we toss our garbage bags to the curb, our privacy interest in the contents of the bags is at an end. It doesn’t matter if the garbage bags are on your side of the property line. It doesn’t matter if you take pains to drive your garbage bags all the way to the dump site. The majority held that:
Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal. To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.
…
[T]he appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection. The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.
[Patrick, at paras. 64, 73.]
There was a brief concurring opinion by Justice Abella. Though she did not believe that a Charter breach had occurred in this case, her focus was not on the abandonment issue.
Abella J. found that abandonment alone should not automatically leave household waste open to police scrutiny. She was concerned that under the majority’s approach, the police would have unrestricted access “to information most people would never expect to be publicly accessible.” In her view, a person has a diminished, but not extinguished, expectation of privacy in respect of garbage which has been abandoned [Patrick, para. 90].
Given that there was some expectation of privacy, this expectation would have to be balanced against the legitimate interests of the state in investigating crime. Abella J. did not believe that prior judicial authorization in the form of a warrant would strike the appropriate balance. Instead, she felt that police must have a reasonable suspicion. “Reasonable suspicion” was not defined in the judgment, but it usually refers to some articulable grounds for believing that a crime has taken place. It is than a mere hunch, but something less than reasonable and probable grounds; a fairly low threshold.
“[I]n my view, with respect, the privacy of personal information emanating from the home, which has been transformed into household waste and put out for disposal, is entitled to protection from indiscriminate state intrusion. Such information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal. Before the state can rummage through the personal information from this ultimate zone of privacy, there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.”
[Abella J., concurring, in Patrick, at para. 77.]
Certainly when we throw our garbage out we are giving up a proprietary claim to it. But I think that our proprietary claim has to be treated as distinct from our privacy interest. I think it’s an inherent expectation of Canadians that what we throw out will be free from scrutiny by other members of the public, and certainly by the state.
Abella J.’s decision is much more compelling in that it recognizes a legitimate (though diminished) expectation of privacy in things we throw out.
Unfortunately, today’s majority decision significantly abrogates our privacy rights in this country.
Man Not Criminally Responsible for Greyhound Bus Beheading; Victim’s Family Call for Punishment
Justice John Scurfield ruled Thursday that a man accused of beheading and cannibalizing a Greyhound bus passenger is not criminally responsible (“NCR”) due to mental illness.
Vince Li’s trial lasted only two days and heard from two expert witnesses, both psychiatrists, who testified he is mentally ill.
Both the prosecution and the defence argued that Li cannot be held criminally responsible because he was suffering from schizophrenia and believed God wanted him to kill the victim because he was a force of evil.
Li did not know the victim, Tim McLean, before sitting beside him on the bus, nor did he speak with him during several hours before the attack, which Scurfield J. described as ”grotesque”, ”barbaric”, and ”strongly suggestive of a mental disorder.”
A psychiatrist called by the prosecution Wednesday testified that Li cut up McLean’s body because he believed that the victim would come back to life and take revenge.
Having been found NCR, Li will be institutionalized without a criminal record. He will be reassessed every year by a mental health review board to determine if he is fit for release into the community.
McClean’s family are vowing to fight the law that allows those found NCR to be released into the community if they are rehabilitated. The family argues that these people should instead serve a minimum sentence in jail.
Howard Barbaree, Phil Klassen, and Padraig Darby, experts in the areas of law and mental health, have written a terrific commentary on this issue published in the Globe and Mail. In it, they argue that “Canada should be proud that it has developed a thoughtful, balanced and fair treatment system for mentally ill individuals who commit criminal acts.” The commentary is entitled, “The mentally ill who break the law deserve ‘all mercy and humanity’“.
In my own opinion, this proposed punishment, dubbed “Tim’s Law,” would be unconstitutional. It would violate a person’s Section 7 right to liberty under the Canadian Charter of Rights and Freedoms.
A finding of ‘not criminally responsible’, pursuant to Section 16 of the Criminal Code, is just that. A finding that the person is not a criminal.
The proposal by the McClean family is this: once released by a mental health review board, a person becomes capable of meeting the fault requirement for the past act that they commited while suffering from mental illness. The illogic of the proposed punishment is that a person who is now capable of appreciating right from wrong should be punished for what they did when they were not capable.
In common law countries such as Canada, the test of criminal liability is expressed by the Latin phrase, actus non facit reum nisi mens sit rea, which means that “the act does not make a person guilty unless the mind is also guilty”. Not explicitly stated in this this phrase is the requirement that the actus reus (act) and mens rea (guilty mind) must overlap in time.
In the case of Li, if he recovers from schizophrenia and is released by a mental health review board, he will merely have the capability of having mens rea for present actions. This capability of having mens rea will obviously not overlap in time with his past actions. Therefore, the punishment proposed by the McClean family, although perhaps understandble on an emotional level, would be cruel and unconstitutional as it would be inflicted on a person who has committed no crime under law.
Criminal Code, R.S.C. 1985, c. C-46, s. 16:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
40% of Ontario Prosecutions Fail Before Trial
According to the National Post, the criminal justice system in Ontario is an absolute mess.
Ontario has the highest rate of failed prosecutions in Canada.
In this province, approximately 40% of criminal cases are withdrawn, stayed, or dismissed, often before the trial even begins.
To say nothing of the impact on the improperly accused person, the cost to the taxpayer – for wasteful police investigations, fruitless prosecutions, and court costs – is in the hundreds of millions of dollars.
Why?
There are a few reasons which the National Post and others have identified:
- Lack of collaboration between Crown Attorneys and the police. For the vast majority of crimes in Ontario, the police make the decision on whether to lay a charge. The police are not in the best position to decide whether the charge will stick in court; Crowns are. In other provinces, the Crown acts in a screening capacity to decide whether a charge should be laid in the first place.
- Lack of discretion on the part of Crown Attorneys. The Crown policy manual requires Crowns to drop charges where there is no reasonable prospect of conviction or where pursuing the matter would not be in the public interest. Thus, Crowns are required to act in a quasi-judicial role in deciding whether to press the prosecution. Unfortunately, junior Crowns are often unwilling to take initiative and withdraw a charge for fear of making a mistake and drawing the ire of their superiors.
- Lack of ownership of files. Most criminal files are shuffled around from one Crown attorney to the next until the time of trial. This creates a great deal of administrative waste, because all of the Crowns that will come into contact with the file will have to take time to fully familiarize themselves with it. Worse yet, when Crowns feel that they don’t have ownership of a file, they are unwilling to make tough decisions to withdraw a charge. Lacking a comprehensive knowledge of the case and the accused, it’s easier to just do nothing and allow the file to pass to someone else.
Having identified some of the causes, it’s clear that relatively simple changes could be made to the criminal justice system to significantly cut down on the number of failed prosecutions.
The Power of a Guilty Plea
“You mean,” he said, this look of absolute unbelief working across his face, “you mean, if I’m guilty I get out today?”
“Right.”
“And if I’m innocent I stay locked up?”
“You got it, man. So what are you gonna be, guilty or innocent?”
James Mills, One Just Man, Simon and Schuster
Ontario Expands “Justice on Target” Initiative
According to the Ontario Attorney General’s website:
In 1992, it took an average of 4.3 court appearances to bring a charge to completion. By last year, this figure had more than doubled to 9.2 appearances. Over the same period, the average time needed to complete a charge has gone from 115 days to 205 days.
One of AG Chris Bentley’s prime initiatives during his office has been to address these delays in the criminal justice system.
Bentley is the Liberal M.P.P. for my riding of London West. Because of his personal knowledge of our court’s delays, Bentley made London the testing ground for his “Justice on Target” program. The program aims to identify bottlenecks and address them to reduce the number of adjournments and the amount of time it takes for criminal cases to be resolved.
The Ministry of the Attorney General has issued the following (slightly edited) press release today:
—
Accelerating The Pace Of Justice
McGuinty Government Selects Three Courthouses For Next Phase Of Justice On Target Strategy
NEWS
The Ontario Courts of Justice in Newmarket, North York and London have been chosen to begin the province’s intensive, sustained effort to move cases through the justice system faster.
This is the next step in the Justice on Target strategy , to reduce unproductive criminal court delays and appearances by making more effective use of justice resources.
These courthouses have been designated as “action sites” to improve the pace of justice. Teams, led by Regional Senior Justice Bruce Durno and Senior Crown Attorney Ken Anthony, will work to quickly identify, test and implement new ideas.
Successful initiatives will then be rolled out in other courthouses across the province to help achieve the target of a 30 per cent reduction in the provincial average of days and court appearances needed to complete a criminal case. Progress towards the targets in each courthouse will be measured and reported online.
QUOTE
“Our expert teams will be working closely with all justice participants in these three courthouses initially – but the goal is to identify, test and implement approaches that will make criminal justice faster province-wide,” said Attorney General Chris Bentley. “We’re committed to making the justice system more effective for everyone – victims, witnesses, and the public who pay for it.”
QUICK FACT
* With 600,000 charges entering the system every year, saving one minute per charge could save seven years of court time.
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My personal London criminal justice pet peeve: simple disclosure requests that take six months to fulfill.
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