Monday, November 03, 2008

Daily Affirmations - With Attorney General Alison Redford

I can just see it now...Alberta's Justice Minister with her own cable television show looking over the shoulder of one of her Crown Prosecutors and into the mirror for a delusional responsibility-shirking soliloquy that would make Saturday Night Live's Stuart Smalley beam with pride:

Crown Prosecutor: "Hello, [Insert Crown's name here]."

Attorney General: "I don't have to be a great prosecutor..."

Crown Prosecutor: "I don't have to be a great prosecutor..."

Attorney General: "I don't have to read the Criminal Code, or textbooks on criminal evidence or research current case law..."

Crown Prosecutor: "I don't have to read the Criminal Code, or textbooks on criminal evidence or research current case law..."

Attorney General: "Because all I have to do is be the best [Insert Crown's name here] I can be."

Crown Prosecutor: "All I have to do is be the best [Insert Crown's name here] I can be."

Attorney General: "Because I'm good enough, I'm smart enough, and doggonit, people like me!"

Crown Prosecutor: "Because I'm good enough, I'm smart enough, and doggonit, defence lawyers are too good for me!

Why do I launch such criticism? Because I don't like being publicly accused by the Justice Minister of being the cause of delays and problems with the criminal justice system as she makes what is seemingly another daily attempt to grab votes while simultaneously blaming anyone but her or her employees for systemic problems.

...Justice Minister Alison Redford blamed the backlog not on overtaxed courts but on defence lawyers, who, she suggested, exploit procedural redundancies in the Criminal Code to delay trials.

"Our courts are very well-resourced," said Redford. "We have the judges who can do the work. We have the prosecutors who can do the work."

The problems, she claimed, stem from Criminal Code rules that she said give the defence a strategic advantage. "Frankly, defence counsel is very good at using those."


"I'm not going to let defence counsel get away with saying that there's not enough Crown prosecutors, or that they don't know what they're doing..."

So, I guess this column is my way of saying that I'm not going to let the Attorney General get away with saying that she respects the work defence lawyers do while openly disrespecting us...and without facts or legitimate foundation to do so. Nor will I let her attempt to say that Crown prosecutors are somehow victims when defence counsel choose to outwork and thereby outwit them.

Consider an example from my first year as a lawyer called R. v. Gateway Collections:

I suppose that I exploited a procedural redundancy in the Charter to get a stay of proceedings and an order for costs against the least as Ms. Redford seems to look at these things. I on the other hand am of the view that Crown neglect and impropriety was the cause of my client "getting off" and the judge (whose decision was not appealed by the Crown) agreed:

I find the conduct of the Crown in this matter regarding its disclosure obligations to be generally consistent with Crown counsel’s conduct throughout these proceedings, which left an overall air of neglect pervading this prosecution. Failing to appear for pre-trial conference, failing to follow the Court’s directions regarding setting continuation dates, and failing to respond to telephone communications from the Court all display a pattern of neglect akin to the lack of response received by defence counsel to numerous entreaties for proper disclosure. I find this conduct on the part of the Crown to be egregious and unacceptable, and in the circumstances prejudicial to the defence in preparing their case and making full answer and defence to the

Now, it would be wrong for me to suggest that this case somehow means that all Crowns are incompetent or unethical...and I do not make that suggestion at all. So why is it permissible for Ms. Redford to paint all defence counsel with a single stroke to make some political point? It isn't. And I would say to Ms. Redford that she is playing a most dangerous game if she thinks she will further her law and order agenda (a laudable goal) by repeatedly slapping defence lawyers in the face.

Dorothy Wright Wilson, Dean of University of Southern California Law has been quoted as saying, :If criminals wanted to grind justice to a halt, they could do it by banding together and pleading not guilty."

Ms. Wilson was absolutely correct.

While I digress into anecdotal evidence, now retired ACJ Brian Stevenson was always touting the statistics of how many cases the Provincial Court (Criminal) Division was able to process every year. By my recollection a couple of years ago the stats suggested that only about 12 percent of criminal cases were ever set for trial. Regardless of the precise number, all of us in the system, including Ms. Redford, know full well that the vast majority of cases are dealt with by way of guilty plea.

Referencing Stats Can for the most recent numbers online (2005/2006) one can see that in Alberta alone some 50,527 adult criminal matters were processed that year...with 33,926 findings of guilt, 743 acquittals, 15,288 stays of proceedings and 570 "other".

I would go out on a limb and venture to say that if even one third of criminal cases were set for trial that the system would simply crumble under the pressure.

Therefore, Ms. Redford and the people of this province owe a major debt of gratitude to criminal defence lawyers who, in the vast majority of cases, advise and assist their clients in pleading guilty and therefore prevent systemic paralysis and implosion.

If we as defence lawyers were behaving the way in which the Justice Minister suggests then we would already have true chaos in the criminal justice system...and if she keeps telling any reporter with a pen that we are actively doing it, she is inviting a self-fulfilling prophecy of sorts. Ms. Redford might be wise to consult the history books for the quote attributed to Admiral Yamamoto following the "success" that was the attack on Pearl Harbor:

I fear all we have done is to awaken a sleeping giant and filled him with a terrible resolve.

I know, I know, a bit melodramatic...but the point is valid. If you really want to see how bad things would be if criminal defence lawyers were truly your enemies (trying purposefully to create delays and problems in the system) as opposed to just your adversaries (trying our best to serve our clients according to law) then just keep calling us your enemies and keep blaming us for all that is wrong in the system.

If however you would like to see fairness and justice done (as closely as can be done by any human-run system) then lobby for changes to the legislation if you want...just leave out the slight to the integrity and reputations of us defence lawyers who are doing everything in our abilities to uphold our side of the scales.

And maybe look to see if your side of the table might find some area for improvement when looking in the mirror rather than just daily affirmations that everything you are doing is right because that is what you choose to tell yourself.