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?
Another concept that I still have trouble wrapping my mind around is the ability of the Crown to take a case all the way up to trial hoping that the accused would plead out, and knowing that if they made it to trial they would withdraw the charges. The Crown had ample opportunity to pull the plug on the case. As early as Oct. 26th 2001 they could have made an ultimatum to the police to give up the warrant or else they would drop the case. This plan could have potentially saved taxpayers roughly $15, 000. Had the Crown lacked the foresight on Oct. 26th they had yet another opportunity in the confirmation meeting on Sept. 4th 2002, and another on Sept 11th. One can argue that because of the structure of the Crown’s office so many lawyers touched the case for such small amounts of time that none of them had a complete grasp of the facts and case. While it is true that at least four different Crown lawyers all handled the file at least one of them was part of the case for four weeks, surely he had enough time to see what was going on. This raises two questions; what are the responsibilities of the Crown, and who is the Crown accountable to?
It is up to the police to lay charges and once the charges have been laid the decision as to whether the prosecution should proceed, and in what manner, is for the Attorney General and the Crown Attorneys to decide. The Attorney General provides the legal advice from which the police make their decision to prosecute. The Crown has the responsibility to “represent the public interest - which includes not only the community as a whole and the victim, but also the accused. The Crown has a distinct responsibility to the court to present all the credible evidence available. The responsibility is to present the case fairly - not necessarily to convict” It is hard to believe that the Crown attorneys were representing the public interest as well as the accused while pursuing this case. Bearing in mind their knowledge that one of the pieces needed to make full answer and defence to the charges would never be received by the defence the Crown clearly was not representing the interest of the accused.In continuing to prosecute the accused knowing that if the case went to court the defence had a successful charter argument the Crown was not representing the interest of the public as it was wastefully using their money. Speculatively, the Crown might have been representing the interest of the police, with whom good relations are compulsory for success, an alarming thought.
The Crown lawyers are ultimately accountable to the Attorney General who in turn is accountable to the people of the province through the Legislature. From observing this case I can only believe that the crown lawyers are granted tremendous leeway with regards to the cases that they pursue and the means by which they pursue them with. It can be argued that initially there seemed to be a legitimate case however when it quickly became clear that full disclosure would not be made to the defence, someone in the office should have decided to withdraw the charges. The Crown was in violation of their responsibility to protect the interest of the accused as well as the public yet no one held it accountable. This brings back the question of accountability. From this example we can see that the checks and balances within the Attorney General’s office which are necessary to ensure the accountability of the Crown attorneys are lax.
Even if none of the Crown lawyers had the file long enough to see the forest through the trees I thought that at least a judge might noticed what was happening and nipped it in the bud, but no one did. I asked the Defence lawyer, how come the judge did not voice his displeasure over the Crown taking this case all the way to trial, having the courtroom booked up for a day and a half only to withdraw the charges. What the defence counsel told me supplements the knowledge I obtained from our judicial administration class. Ontario Court Judges are machines, who because of the massive amount of cases that come before grow almost indifferent to the cases.
The Defence council added an interesting, though speculative point. He said that had this been a Superior Court the judge might have voiced his displeasure. This prompts me to wonder if in Ontario there exists a hierarchy of justice with those in the Ontario Provincial Court getting the short end of the stick. If such a problem does exist within the courts there could be numerous reasons, two of which are; Superior Court judges are better judges than Provincial Court judges, or that the massive case load coupled with the limited budget that plagues the Provincial Court system renders it extremely difficult to spend the appropriate time with each case. Whatever the reason, if such an inequality does exist then it strongly calls into question the notion that all men are equal before the law and the situation must be rectified.
Two possible plans for rectification of the seemingly two tiered Court system could be; the merging of the two courts into one Provincial court, and/or an increase in judicial accountability. The latter argument however poses numerous problems, the major one being how do you increase judicial accountability without affecting the independence of the judiciary.
Regardless of whether or not there exists two tiers of justice within the Court process one thing is clear from observing the failures in the accountability process within the Attorney General’s office, the judiciary should act as a check and balance against the power of the Crown.
In an attempt to obtain accountability perhaps a court watching project should be started similar in likes to the one created in Chicago in 1974-1977. The group could be formed of citizens from all walks of life and could each visit courtrooms to compile data. The group could serve as a last ditch attempt to bring accountability to the legal system and could provide invaluable information like the periodic report published by the Canadian Citizen’s Free Press titled Canada Court Watch Report, which it seems to concern itself with the family court. The proposed group would hopefully have the resources to examine all Provincial Courts including the Ontario Superior Court.
In the end the accused’s legal rights as set out in the charter were observed but the motives behind their observance is unclear. Had the Crown wanted to respect the legal rights of the accused they should have demanded that the police release a copy of the warrant to the defence. The Crown should have dropped the charges against the accused much earlier when they determined that the police had no intention of giving the defence a copy of the warrant. Keeping all this in mind I cannot help but think that the accused’s legal rights were observed not because of the Crown’s respect for the legal rights, but because the Crown realized that they could not circumvent them and had no other option but to observe them. Had the accused pleaded out, his legal rights as set out in the charter would have been a moot point.
This case opened my eyes to the numerous problems that plague our legal system. I saw how far removed the average person is from the legal system and how necessary it is to have a lawyer navigate you through it. Without the aid of a knowledgeable lawyer the accused might have pleaded out or perhaps might not have even noticed the missing warrant or underestimated its value. I also bore witness to the seemingly unchecked power that the Attorney General’s office wields, and the potentially two-tiered system of justice that exists in the Province. In a legal system that is based on the notion that everyone is innocent until proven guilty and are equal in the eyes of the law, I could not help but feel that in this case the scales of justice were balanced in favour of the Crown on one side and no one but the defence seemed to really care.
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