RSS FeedLawFacts: Online Legal Advice from Legal Aid Ontario
By: Simon Borys; Cross Posted on Simon Says
Legal Aid Ontario (LAO) recently launched a website entitled LawFacts which is designed to provide information about the criminal justice system to people in Ontario. (See the press release here.) It will not provide you with specific legal advice about your particular situation, but it does have general information on:
- Sentencing
- Bail
- Being a surety
- Court orders
- Diversion
- Duty counsel
- First appearances
- Guilty pleas
- Peace bonds
- Types of sentences
In addition, it has some forms and checklists that people might find helpful, as well as a glossary of legal terms. Some of the information on this website will be applicable to people outside Ontario (since much of the criminal justice system is governed by the Criminal Code – a federal statute), but some of it is unique to the way we do things in this province.
Concern has been raised among the criminal defence bar that LAO may be attempting to steer people towards duty counsel and towards early pleas with this endavour, rather than encouraging and enabling them to retain counsel (which would allow them to fully realize and enforce their Charter rights in the criminal justice process). This is something that defence lawyers understand (as we all should) is necessary to (a) prevent wrongful convictions and (b) support a system that would accord everyone a maximal amount of procedural protection to ensure they are treated fairly.
LAO may well have a vested interest in pushing people towards duty counsel and early guilty pleas since it makes their job of disbursing limited legal aid funds to accused who need a lawyer easier. However, even if this is true (and I don’t claim to know whether it is or not) I don’t think that invalidates the utility of a website like LawFacts. I am of the opinion that the more educated people are the better they are able to make informed choices and enforce their rights, which in turn ensures that the system works properly for all. In fact, this is one of the main philosophies behind my blog and writing about police related issues – to better equip the public to interact with police and the justice system in a more informed and educated way.
For those who do want to educate themselves, I would suggest you not stop at this website, but I think it can be a good start. That being said, I think no amount of personal education is a substitute for a properly trained and experienced lawyer assisting you – be they privately retained or funded by Legal Aid, especially in criminal cases where the stakes are highest.
Simon Borys is a law student at Queen’s University in Kingston. He is also a former police officer and an an aspiring criminal lawyer. His Blog, Simon Says, focuses on dispelling policing myths and demystifying the law.
Squeezing Blood From A Stone: No Onus on Impecunious Offender to Prove Inability to Pay Fine in R. v. Topp
In the recent Supreme Court of Canada (“SCC”) decision in R. v. Topp, 2011 SCC 43 the Crown attempted to do the impossible and get blood from a stone. The metaphorical stone in this case was John Phillip Topp, a defendant sentenced to five years in prison for his conviction on 16 counts of fraud and attempted fraud under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). Topp had defrauded Canada Customs of $4.7million through his brokerage business. The Crown sought to have a fine of the same amount imposed on Topp in addition to imprisonment, but Baltman J. of the Ontario Superior Court of Justice refused to impose any fine whatsoever because she was not persuaded that Topp had the ability to pay pursuant to s. 734(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“CCC”). Both the Ontario Court of Appeal and the SCC upheld Baltman J.’s decision not to impose a fine due to Topp’s inability to pay the fine.
Summary of the Law and the Crown’s Argument
Subsection 734(1) of the CCC provides that a court may fine a convicted offender in addition to imprisonment subject to ss. 734(2). Subsection 734(2) provides,
Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736 (emphasis added).
The Crown argued that ss. 734(2) should be interpreted to require the defendant to prove that he or she is unable to pay – in essence a reverse onus. This argument was made because the Crown could not track the whereabouts of the $4.7 million and Topp could not explain what happened to the money. Fish J., writing for the unanimous SCC, rejected the Crown’s argument because the legislative intent of requiring that a defendant be able to pay was to avoid imprisoning individuals for failing to pay fines. As well, the wording of ss. 734(2) did not create a reverse onus for the defendant.
While there is no formal burden on the Crown to prove a defendant’s ability to pay, in practice the former will need to marshal evidence of the latter’s ability to pay. Fish J. explained that, “as a matter of law, the court cannot impose a fine unless it is satisfied [on a balance of probabilities] that the offender is able to pay. This necessarily involves an affirmative finding based on the evidence and information properly before the court pursuant to ss. 720 to 724 of the Criminal Code. Absent a sufficient basis for that finding, the party seeking the fine cannot legally succeed.” Evidence must be marshaled otherwise a sentencing judge cannot make a finding that a defendant is able to pay. Similarly, while there is no formal burden on a defendant to rebut the evidence marshaled by the Crown, the defendant is free to present evidence on his or her inability to pay. Read more
Weird Legal News: Capricious Juries, Secret Recipes, and the Constitutional Right to Swear
Here’s a digest of some articles I collected this week that are either funny, interesting, or just plain weird.
- Blind Justice? Attractive Get Breaks with Juries – CBS News
In completely unsurprising study results, Cornell researchers have found that juries are significantly more likely to convict an ugly person than an attractive person in identical circumstances. Where evidence is strong and the case is serious, attractiveness plays less of a role. But where the charges are minor, or the evidence is ambiguous, ugly people are at a serious disadvantage. They get higher sentences too — way higher! - Toilet Brush ‘Blunder’ Death – The Sun (UK)
A man is taking legal action after an inquest found that his wife died due to serious errors by her examining doctors. The woman had somehow fallen onto a toilet brush handle which embedded itself in her buttock. The foreign object was missed by doctors. The woman died of complications during surgery to finally remove the handle — four years after she had fallen on it. - Pizza in Naples ‘cooked with wood from coffins’ – Telegraph (UK)
Prosecutors in Italy are claiming that the oak wood being used in Naples’ pizza ovens has come from a grisly source. It is alleged that gangs are digging up coffins from the local graveyard and selling the wood to owners of local pizza parlours looking to save on costs. - U.S. rights group sues to protect right to swear – Vancouver Sun
The American Civil Liberties Union is taking action against Pennsylvania police. Apparently, the cops have been arresting (and in some cases jailing) about 750 people per year simply for uttering profanities or making profane gestures. The ACLU claims that the disorderly conduct charges are unconstitutional, because swearing is protected speech under the First Amendment.
I’ll post more articles when I get some free time.
Breaking into the Field of Criminal Law
While I really should be studying for the bar exam right now, I couldn’t pass up on the opportunity to share a great article appearing in the current issue of Canadian Lawyer 4Students Magazine.
The article, entitled “So You Wanna Be a Criminal Lawyer, Eh?” is about the challenges facing current law students who plan to practice in criminal law. There is a particular focus on the lack of articling opportunities in the field, and the ever-decreasing emphasis on criminal law education at law schools. I can tell you first hand that these issues are very real and very troubling.
The author quotes my former Career Services Director, Robyn Martilla, on the difficulties in finding employment opportunities in criminal law:
It is also possible students are not so much turned off the practice area’s dark side, but instead diverted from it by large firms’ powerful recruitment strategies. Robyn Martilla, director of Western Faculty of Law’s career and professional development office, says it’s difficult for students to find information on criminal law articling positions. “The schools tend to get a lot of information from private firms, like the large Bay Street group,” says Martilla. “So that information is easily available to students. But it’s much more difficult to find information about positions in either family or criminal law.”
There is a choice quotation from Montreal criminal lawyer Isabel Schurman on what we stand to lose as our criminal defence bar shrinks and ages:
She suggests this much-maligned area of practice has been given a bad rap over the years, and more students should open their eyes to a career in criminal defence. “It’s a shame that the field is so misunderstood,” says Schurman. “I think it’s a shame that people never realize the important role that defence counsel play until they, or someone in their family, needs representation, and then realize that it’s not simply this television or movie image of defence counsel. We are in fact the watchdogs for the fairness in our system of criminal justice, and without a strong defence bar, the whole system suffers, and so does the citizen’s right to be left alone by the state.”
The article concludes with some practical tips on breaking into the field, many of which I can endorse from personal experience. If you’re considering criminal law, I recommend checking the article out here.
The criminal lawyers I know tell me that although the challenges are many, they are more than offset by the rewards of practicing in this exciting field. This was summarized in one of my favorite admonitions from a criminal defence lawyer: “trust me, you don’t want to practice criminal law. That being said, I absolutely love my job, and can’t imagine myself doing anything else.”
Law School: A Fate Worse than Jail?
Last week a 28-year-old man stole two computer batteries from a Florida Staples, then returned to the store, reported his crime to the store manager and demanded that police be called. He told employees that he wanted a third-degree felony on his record, so that he wouldn’t be allowed to attend law school.
Unfortunately, the stolen items were valued at $276.88, a misdemeanor amount, $23.12 short of a felony. (Had he gone to law school, the would-be felon might have known that.)
The news outlet that reported the incident failed to answer the first question that comes to mind when reading the story: who is holding a gun to this guy’s head to go to law school?
The 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]
