Retreat organizer David Rendahl (whom I interviewed last year on video) opened the conference this morning by talking about the “Public Defender Attitude”, the motto of the conference.  Dave relayed a story of one of his first trial experiences.  His client has been charged with being involved with a bar fight (I assume there were some injuries) and was in custody pending his trial.  He was looking at a sentence of 4-6 years.  Dave’s client was steadfast in asserting his innocence – he was at the bar but had no involvement in the fight.

Before trial Dave was approached by the prosecutor.  The prosecutor explained that they had figured out that Dave’s client was not involved with the fight.  Dave was then told that his client could plead guilty to a misdemeanour and be released from custody.  Clearly, there is something wrong here.  Why should a factually innocent client have to plead guilty to anything?  The prosecutor, when confronted with this issue, took the position of “we made you an offer”.  Naturally, when presented with the option of taking the guilty plea or taking a risk of proceeding to trial (even if the risk was minimal), Dave’s client accepted the deal (in California one can plead “no contest”, so Dave was not face with the issue of his client having to admit to facts which he took the position were untrue).

This story, which clearly has had an affect on Dave, demonstrates the notion of the “public defender attitude”.  In the face of extreme criticism from so many parties (prosecutors, Judges, victims, the public), criminal defence lawyers are generally the first and only line of defence for our clients.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

The ability of a counsel to make able sentencing submissions is one of the most important parts of the criminal court process.  It could mean the difference between a criminal conviction and a discharge, a fine or a term in jail, or even several years in the penitentiary.

Being able to show a Judge decisions of other courts in similar circumstances can be very helpful in justifying a sentencing position.  While the cases presented in most circumstances will not be binding on a sentencing court, they can serve as extremely persuasive argument and, in many cases, sway a Judge one way or the other.

Enter Rangefindr.

Created as a hobby-turned-business by Legal Aid Ontario employee Matthew Oleynik, Rangefindr is a vast database of sentencing decisions.

Unlike other legal research tools, Rangefindr is designed for the novice.  When looking for sentencing precedents I don’t have to come up with my own search terms, or figure out which terms a Judge may have used in a decision similar to the case I am researching.  Instead, I just go through a long list of case factors, and Rangefindr finds cases that are “on point” – all I have to do is check off boxes.  For example, if I wanted to find cases where an accused with a drug addiction was sentenced for an assault causing bodily harm against their spouse, I just check off the relevant boxes, and Rangefindr provides result.

The true power of the tool, however, may not be in its amazing search features, but in the results.  In other research tools once I would put in my search terms I’d get a list of cases which I could then click on and determine whether they would be useful.  In these searches some cases may be relevant and some may ultimately have nothing to do with what I’m researching.  Rangefindr provides a very succinct summary of the case and its result.  I can then click a link at the top and be taken directly to a publicly available version of the case on Canlii.

In my very brief usage of Rangefindr, I’m quite impressed.  Matthew has clearly put a lot of work into this program.  I can see it being a very useful tool for any criminal lawyer.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

The appeal itself involved a technical issue about the calculation of pre-sentence custody.  Essentially, it was argued that by denying credit for pre-sentence custody due to the appellant having breached a weapons prohibition, which would also have been considered an aggravating factor in determining the actual sentence, the appellant would have essentially been “double punished” for violating the same condition.

For example, suppose an individual was found to be in breach of a weapons prohibition and a Judge determines this is worth an extra year of their sentence.  By also denying enhanced credit they are effectively being sentenced twice for the same aggravating feature.

Ultimately, while the court found that the trial Judge erred, they did find that the sentence itself was a fit one and did not interrupt it.  Justice Epstein, writing for herself and Justices Hoy and Lauwers, explained:

[26]       The sentence imposed, which is just slightly more than 11 years, falls within the range of 10 to 12 years proposed by both parties.  It is a sentence that is, all things considered, justified. This was a serious crime, committed by an individual with a criminal record for firearms and violence. Parliament, through its mandatory minimum sentencing regime has sent a strong signal to those contemplating such criminal conduct.  Denunciation, deterrence, and protection of the public are being taken seriously attracting a serious response.

[27]       In the end, whether the trial judge properly considered the breach of the firearms prohibition as a standalone offence; as an aggravating factor for the robbery; and as a factor weighing against enhanced pre-trial credit, the principle of totality and the fitness of the ultimate sentence relieves against any unfairness that might have resulted from considering each factor in isolation.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

In an Oregon city recently, the recipient of the pocket dial was a 911 operator.  Normally this would be an honest mistake that could be rectified with an explanation and an apology.  The problem for the caller was that she was in the midst of a conversation about a drug deal.  Using GPS technology the police were able to locate the location of the call and then went to intercept the drug deal.  The story was reported here.

Naturally the lawyer in me is wondering what Charter issues may arise had this story happened in Canada.  Had the police seen the drugs in plain upon their attendance then I’m not sure there would have been any issues.  If the drugs weren’t in plain view, though, then I would still think any detention would still be investigative (it’s unlikely they would have had enough evidence to know that the people they found based on the GPS signal actually were dealing drugs based on hearing only a conversation).  This allows a pat-down search and requires rights to counsel before questioning.  In investigative detention circumstances, however, a common question is whether the police were acting on a hunch - if they were then the detention may not pass Charter scrutiny.  Given the conversation heard by the 911 operator and subsequent location by GPS then an argument could be made that they had more than this hunch and an actual subjective belief that drug activity may have been occurring.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

As the situation in many American states has made apparent, using incarceration as a means of controlling populations that are viewed as problematic in an effort to reduce crime is a costly endeavour that further intensifies the problems facing these communities rather than making them better. A smarter approach would be to deal with the causes of crime rather than the consequences. This is particularly true in the face of Prime Minister Stephen Harper’s tough-on-crime agenda.

If Canadians are concerned about daylight shootings in public places or the proliferation of gangs in urban centres and rural reserves, we need to rethink how we deal with one of the consequences of the social exclusion that many aboriginal and black Canadians experience.

When looking at the statistics, Owusu-Bempah explains that white Canadians make up a plurality of those involved in the corrections system (which makes sense given that this group makes up the majority of the population) but goes on to explain that, based on population averages, white Canadians are under-represented whereby natives and blacks are over-represented.  These conclusions, based on statistics obtained by Owusu-Bempah, are accurate for both adults and youth.

It is explained that the statistics also show that non-white Canadians are held in pre-trial detention more often than white Canadians.  Those held in pre-trial detention are then more likely to plead guilty, be found guilty at trial, and/or receive a harsher sentence after a plea or trial.  I agree with this conclusion.  As much as we’d like to think that being in pre-trial detention should not affect the ultimate result of the case, my observations suggest otherwise.  Often times it is possible to “plead out” a lot quicker then it is to wait for a trial.  Similarly, sentencing “deals” are often much lower for those who are out of custody than for those who are in custody.

Several reasons for this problem are explored.  One reason is the historical marginalization of both native and black populations:

There are, of course, historical factors that have contributed to the current situation, such as those highlighted by the Idle No More movement (broken treaty promises, residential schools and the system of reserves) and those often reserved for discussion during Black History Month (including often forgotten slavery in some of the territories that would become Canada and legalized segregation), for example.

Another reason is that both these groups tend to have a much higher rate of poverty than white Canadians.  It is a well known fact that there is a clear link between poverty and crime.  While poverty does affect the commission of crime, another reality for the poor is that they do not have the same access to legal counsel as those who can afford to hire a lawyer.  I would assume this has an affect on the overall statistics as well.

Owusu-Bempah concludes by making three suggestions to help solve this problem:

1. Education.  By making school more relevant and engaging, and offering different types of programs (such as co-operative education and volunteer opportunities), those from communities where crime has become a problem will “pave the way to success”.
2. Acknowledge and come to terms with the difficult parts of our nation’s history.  Owusu-Bempah is quite clear that “our country was founded on beliefs about racial superiority and inferiority” and that it is necessary to “understand how the remnants of these ideas continue to influence our society”.
3. Encourage aboriginal and black Canadians to take a leadership role in identifying and solving the problems facing their communities.  There are various examples given by Owusu-Bempah, one being recent public action surrounding racial profiling and police “carding” practices which have become somewhat commonplace in certain Toronto neighbourhoods.

The ideas presented in the article seem quite simple, but also make a lot of sense.  Unfortunately the federal government seems to be more focused on new sentencing legislation, and often Crown Attorneys offices seem to be too focused on punishment, that we lose sight of what can be done to actually prevent crime in the long-term.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

Courts rightfully treat breaches of their orders very seriously.  Without laws governing breaches then court orders would essentially have no teeth.

An appropriate sentence after being found guilty of breaching a court order is a difficult question, mainly because the range is so large.    In many courthouses a conditional discharge is often a foregone conclusion for a first breach – I have even seen some Judges regularly hand out absolute discharges.  On the other hand, I have heard of Judges who feel that jail time, often as much as thirty days for a first-timer, is the only appropriate disposition regardless of the facts behind the breach.

One main factor to consider is the seriousness of the breach.  Obviously a breach of a no-contact order would be taken much more seriously then someone who breached a curfew order by a few minutes as they were out getting groceries.

One interesting question is how to treat someone who has been charged with breaching a recognizance of bail only to have the underlying charges withdrawn.  Arguably in such a case they should have never been on bail to begin with.  However, I’m not sure that argument necessarily excuses the breach of a court order – whether or not they should have been on the order the fact is they were, and should not have breached it.  On the equities, however, it may be appropriate to offer some type of diversion program to those in such a circumstance.

It is a common misconception that a breach charge is an open and shut case for the Crown.  There are various technical elements that a Crown must prove for a finding of guilt to be made.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

In this evolving series, I plan to discuss blogs that I have read over the past week (or, in the interests of full disclosure, those I found in my research prior to writing this post).  The blogs will not necessarily have been published int he preceding seven days.

Report on Improving First Nations’ Representations on Ontario Juries – Omar Ha-Redeye, SLAW, March 3, 2013

In this post, Omar Ha-Redeye blogs about the release of the Issues Report on Improving First Nations’ Representation on Ontario Juries, authored by former Supreme Court Justice Frank Iacobucci.  Omar explains that the ultimate conclusion of the report is that there is an underrepresentation of First Nations individuals sitting on juries an working in the justice system despite their overrepresentation in the prison population.  In the post, Omar explains a possible source to this problem:

Iacobucci acknowledges that systemic racism towards First Nations does exist in our justice system, and First Nations view the justice system as alien and foreign to their values, which is a significant factor for their reluctance to participate in the system to begin with.

A jury is supposed to be made up of one’s peers.  In my mind it should represent a cross-section of the Canadian populace.  In reality, many juries’ do not accomplish this.  I expect this problem affects other groups as well.

Violence and Threats Against Lawyers is a Growing Concern in Canada - David Hyde, republished on SLAW by Yosie St-Cry, February 28, 2013

In our adversarial legal system there are bound to be people who are upset with the end result of a case, or even how things are going as the case proceeds.  Most people show respect for the process and don’t let their emotions get away with them.  It is not surprising though that there is the odd person whose emotions turn into criminal acts such as violence and threats of violence.  In this post, Yosie St-Cyr republishes a blog post by lawyer David Hyde where Hyde provides a very thorough analysis of what threats Canadian lawyers may face.

As it turns out, according to Hyde those working in criminal law (including both defence lawyers and prosecutors) were in the highest risk category along with family lawyers.

Six Myths About Lawyers - Dan Bowling, The Careerist, February 19, 2013

In this post, Bowling seeks to debunk six myths about lawyers.  The myths are as follows:

1. Lawyers are miserable.
2. If you’re depressed, that’s your problem.
3. Negative, cautious types get better grades.
4. Lawyers are cynical.
5. Successful female lawyers are cold and emotionless.
6. Emotional intelligence is overrated.

I’ll quickly address a couple of these myths myself.  First, among my colleagues in criminal defence, very few seem miserable.  This may be because this is an area people choose out of interest (very few go into criminal defence for the money), or that we actually get to be in court regularly (when most think lawyer they think courtroom), but most people do seem quite happy and content with their jobs.  The myth about female lawyers seems quite ridiclous.  I can think of numerous female colleagues who are anything but cold and emotionless but actually quite personable and with great senses of humour.

Judge Facing Ethics Challenge Because He’s Also a Stand-up Comedian – Joe Patrice, Above the Law, February 26, 2013

In this post, the story is told of a municipal judge in South Hackensack, New Jersey, who works as a stand-up comedian.  According to the post, the job of municipal judge is not a full-time job and is generally performed by practicing lawyers as somewhat of a public service (the pay is minimal).  Personally, I like the idea of Judges having hobbies and personal lives.  It provides a different perspective from the bench and makes for better Judges.  I see no reason why being a stand-up comedian would be any different an ethical issue as a Judge who enjoys fishing, teaches exercise classes, or is a member of a book club.

It’s entirely possible that the court information could actually specify chips and dip as a weapon if the couple were charged with assault with a weapon.

Reading about these cases causes some frustration for me.  The courts are busy enough right now, what’s the purpose in charging people with criminal offences when the situation can be diffused using other means?  I make that comment more generally.  In fairness, the news article does not contain very much information, and there is a mention of numerous domestic incidents on file.  With that in mind, I can think of numerous cases where I have felt it was a waste of resources for the police to lay a charge and for the Crown to continue with the prosecution.  I reach this assessment after a review of disclosure and a thorough understanding of the allegations and evidence.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

The Act, which is now codified in s. 719(3) and (3.1) of the Criminal Code, states when a Judge can consider enhanced credit:

• (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
• (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

Once Truth in Sentencing came into effect it became illegal for Judges to give credit beyond 1.5 to 1.  The constitutionality of this law has been argued before a number of courts, although there has not yet been a decision from the Ontario Court of Appeal on the issue.  One well known decision on such credit was R. v. Johnson.  In this case, Justice Melvyn Green upheld the constitutionality of the Act but when on to hold that enhanced credit of 1.5 to 1 was entirely appropriate.  In reaching this decision Justice Green interpreted the words “if the circumstances justify it” to include cases where remission or earlier parole eligibility was delayed due to pre-trial detention.

Since the release of Johnson, many Judges have divided themselves into two camps:  those that follow the decision and those that do not.  Those that follow the decision will almost automatically award credit of 1.5 to 1 (provided the offender was not detained in custody for reasons of their record, as explained in s. (3.1) above).

In my mind the decision in Johnson should be univerally followed because it is fair and reasonable.  Essentially, it’s all about the math.

Offenders sentenced to less than two years will generally be released after 2/3 of their sentence.  Those serving more than two years will be automatically eligible for full parole once they reach 2/3 of their sentence, but they may be able to receive day or full parole much sooner.  Time spent in pre-trial detention is not eligible for this remission.  For example, if a person was sentenced to thirty days without any pre-trial detention they would serve only 20, but if they already have 15 days of -pre-trial detention and are sentenced to an additional 15 (receiving no enhanced credit for the first 15 days), they will serve an additional 10, for a total of 25.

Credit for time served on a 1.5 to 1 basis accounts for the loss of this remission.  Assuming release at 2/3 the calculations work out perfectly.  (For those seeking parole for longer sentences, who may be released earlier than 2/3, the 1.5 to 1 credit is actually too low, but I will focus on release after 2/3 for simplicity’s sake).  Consider the following equations:

c = (2/3)s

Now let’s isolate s,

s = (1.5) c

Where c= total time spent in custody; s=sentence imposed by the court.

An argument can be made that the ability to earn remission is a benefit of entering a guilty plea and also factors in rehabilitation opportunities available to sentenced offenders.  I reject the first argument for a number of reasons.  For one, it flies in the face of the right to a trial.  Although a guilty plea can be a mitigating factor on sentencing the court should have already considered this when determining the appropriate sentence.  Second, it punishes an offender for delays which may not be their fault such as awaiting a trial date, their lawyer being unavailable for a quick plea, delays in disclosure, etc.  The second argument presupposes that rehabilitation programs are available and that an offender will actually be rehabilitated at the end of their sentence, when in reality release after 2/3 is based on statute.  The counter-argument to this is that such programs should be available to those in pre-trial detention.

This discussion is based only on the math behind earned remission and parole and how it relates to pre-sentence custody.  There are many other arguments which favour even greater enhanced credit.  Until an appellate court in Ontario rules on the constitutionality of the Act, however, 1.5 to 1 is going to continue to be the maximum available credit.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

This week I would like to discuss posts written by my colleague Sean Robichaud and law student Simon Borys.  Sean, a social media maven, was called about eight years ago and, after a few years with a major criminal law firm, set off on his own to resounding success.  Simon is a former police officer who is in his third year of law school.  He became involved with the Criminal Lawyer’s Association when he was a 1L and quickly endeared himself to many members of the Ontario criminal bar.

Why Bail Matters:  the Example of Oscar Pistorius – Sean Robichaud, February 22, 2013

In this blog post, Sean uses the example of Oscar Pistorius to explain why bail is important.  Written prior to the decision releasing Pistorius, Sean concedes that the public will likely be outraged which what he predicts will be a decision to release.  He then relates personal experience from his practice to support his argument that Pistorius ought to be released and that bail is important to properly protect the presumption of inncocence:

As a criminal defence lawyer, I have sadly witnessed and been counsel for many serious cases where individuals are denied bail only to be found not guilty at trial.  Those years are not restored, there is no civl lawsuit.  Put simply, that time in jail was a miscarriage of justice that will never be remedied.

I could not agree more with this argument.  Simply, unless it can be demonstrated that someone is a danger to society, they should be released on bail.  Should a Judge or jury ultimately decide they are guilty of the offence then they can be sentenced appropriately:

It is a rare day indeed that the allegations read out at a bail hearing mirrors the evidence that is ultimately heard at trial.  That is precisely what trials are for: to hear all sides, to reflect, and to reach a well reasoned verdict.

“If he wasn’t guilty, the police wouldn’t have arrested him!”  Right?  Wrong! - Simon Borys, February 23, 2013

Here, Simon Borys examines the differences between the threshold for the police to arrest someone compared to what burden of proof equates to legal guilt.  Coming from a former police officer it was fascinating to see what factors the police will consider when deciding to arrest.  Clearly there is no fixed criteria, and the decision of when to arrest may vary from officer to officer.

Simon first explains the threshold to arrest:

Reasonable grounds to arrest means more than just a mere suspicion (or even a reasonable suspicion) to believe a person has committed an offence, but that’s still a fairly low threshold.  No court has ever put an exact number to it in terms of percentage of certainty, but we do know that it must be less than 51% sure.

Compare this threshold to what the Crown must prove to establish guilt:

We know this because the Supreme Court has said that proof beyond a reasonable doubt falls much closer to absolute certainty (100%) than it does to a balance of probabilities (51%) (see R v Starr, 2000, at paragraph 242).  This means it is “much” higher than 75.5% certainty (which is half way between 51 and 100).  I would suggest that probably puts it somewhere in the 90% range, though who can say where exactly.

Simon’s ultimate thesis is that it would be “ intellectually and factually wrong to assume that it’s always the case that just because the police arrested someone, they must be guilty”.

The two blog posts above can be considered together to highlight some very important points.  In the case of Pistorius, the police in South Africa may very well have a reasonable suspicion to believe he committed murder, which is what led to the arrest.  Once the evidence is properly tested, however, the story may be very different.  If that turns out to be the case, and bail was denied, then Pistorius could be sitting in custody for quite some time before the case is ultimately resolved.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.