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On October 9th, 2002, I attended the Ontario Courthouse in Brampton, Ontario to observe a legal aid case dealing with a twenty year old was being tried for possession of a firearm. When I arrived the courthouse was slowly beginning to fill up, luckily I found parking only a few rows back. After passing through the metal detectors I made my way to the third floor where the courtrooms were booked for trials. The trial was scheduled to begin at 10am, the accused and his family got there at roughly 9:30am, their lawyer appeared shortly after. At 10am entered the courtroom, and all rose as the judge came in, we were all in amazed as the crown addressed the court telling them that the charges against the accused were being dropped because the crown and the police were not willing to give the defence a copy of the warrant or affidavit. This rendered the defence unable able to make full answer and defence which violated the accused Section 7 rights as protected under the Canadian Charter. I was completely shocked, here I had driven roughly half an hour to Brampton only to have the Crown withdraw the charges a couple of minutes into the trial. Fortunately I was able to sit down with the defendant’s lawyer and discuss the case.
The defence lawyer told me how the accused had been arrested on Sept 6th 2001 and that on October 9th of that year they had their first pre-trial which was a waste of time because neither the Crown nor the Defence had received the disclosure for the case. The October 9th pre-trial consisted of the Crown and the accused sipping coffee, chatting, receiving their disclosures and then leaving. The October 26th pre-trial was no better, with the accused in jail for already almost two months the Crown offered the defence one year less dead time if he pleaded guilty. To the defence taking this offer had little point as the accused had already spent almost two months in jail, and since judges usually count the time spent in holding centres prior to trial as roughly double, compounded by the fact that the accused would get a trial within one year, even if he was convicted and received jail time of a year he would have served it, or at least a large chunk of it already. No plea was made the case was moving towards a trial.
On November 26th of that year the defence began writing the Crown’s office trying to obtain a copy of the warrant, there was no reply. In February The Defence went to the Court to try and find it. They did a search but could not find anything. The Defence then wrote a letter to the Head of the Crown, still no response. In May the defence went to the Superior Court and it granted him a copy of the warrant. The police said that Justice Lawlor had granted the warrant, however when the defence went to the Supervisor of Court Operations she said that he was not on the bench that day. All three offices, the clerks, Justice of the Peaces and Police office did not have any log of such a warrant.
On September 9th 2002 the defence and crown were brought together for a confirmation meeting in front of a judge to make sure that the trial was going ahead, and to take care of anything that needed to be addressed. The defence asked for an adjournment, the Crown asked for more time to find the info, stating that he personally will look for a copy of the warrant. The defence then offered to show the court a copy of the memo that it had received from the Supervisor of Court operations saying that the file was not lost but had never been received. The judge refused to read it, instead asking for the defence to summarize it. The Court put it over for a week, and on September 11th they met again with a different judge and a different Crown attorney. The Crown said that the warrant had not been found but that they should keep the time scheduled. The defence once again asked for the charges to be withdrawn the defence declined and replied “hope springs eternal”. On October 8th 2002 the Crown tracked the defence down at the court house and offered that if the accused would plead guilty, they would not ask for more time then had been served, the defence declined.
After I had listened to the whole story I could not help but think that the Crown was playing this elaborate game with the accused. Based on the story and the end result it seemed as though the Crown was trying to bluff its way through this case, hoping that the defence would not call their bluff and instead plead out. The alarming part was that from my discussion with the defence counsel I learned that had this case not been a legal aid case he would have advised his client to plead out because of the expense of the case. Based on this observation it appears to me that arguably the most important factor in receiving a fair trial is having sufficient funds to stay the course. This is an alarming thought for most people who do not have an intimate knowledge of the court process. We are led to believe that people are roughly treated equally whether they be poor or rich, and even though many people will agree that wealth aids your case few fully conceptualize the effect it has. It is accepted that the more money you have the better the lawyer you can retain, and the better your lawyer the better your chances of leniency in the courts, however could anyone imagine that just having the resources to get to the actual trial could be the difference between being guilty and innocent?
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Jordan
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Comments
hrm... Martin Kuplens-Ewart | Oct 18th, 2002
...In the US, a guy was held in prison without trial/hearing for 3 yrs [Kevin Mitnick]. They dropped the charges after that.
An Excellent Case in Point Huss Banai | Nov 20th, 2002
Unfortunately, this is not an exception to what goes on everyday in our justice system. Jordan, you do well by bringing it to our attention!
Justice System Ally | May 29th, 2003
I have to agree with everything you said: the Crown can extend a trial and the justice balance is in favour of the Crown. And yes, judges and even the attorneys should stop a case if it isn't going anywhere but that can only happen in a perfect world. I am not siding with the Crown's side (especially in this case), but in an overloaded justice system without enough attorneys or judges cases are lost through the cracks. It's too bad, because it's costing taxpayers money and it's ruining lives.
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