Rishi Gill | Vancouver Criminal Law BLOG | Opinions and information on criminal legal issues from a Vancouver Criminal Defence lawyer.

I haven’t really read the National Post since the run up to the invasion of Iraq – the paper was absolutely terrible in banging the war drums – but here’s a great opinion piece on the Conservative’s war on crime.

I can only assume that  the Conservative Party thinks that you are much too stupid to realize that the crime rate in Canada has been steadily declining for about 20 years.

That said, we must certainly look on in wonder as our Prime Minister goes completely retro when even the United States is moving away from its “jail everyone possible now!!!” agenda.

In a previous post I noted my problem with our appeal courts never officially publishing the name of the lower court judge who is the subject of appeal.

However, this is not to say that the appeal courts are against openness if they think the lower court judge really stepped in it. In these such cases the appeal court judges don’t seem to have a problem naming names.

So what do we learn from all this?  How about the fact that, just like that annoying friend of yours, the courts of appeal can also be passive aggressive.

Sorry for the title – I couldn’t think of anything more appropriate though. I just spoke with an individual who wanted to consult on a theft under (shoplifting) matter.  She had spoken to a lawyer who had told her that she was basically in a lot of trouble and may go to jail.  The lawyer apparently told the woman that hiring him would greatly alleviate all her suffering and possible jail sentence.  I won’t quote the fee he suggested except to say that he must be really really really really good to justify such a sum.

Now, this is a woman (like most people accused of shoplifting) with no criminal record.  It was a “one off” type of offence.  There is absolutely no chance this woman will go to jail.  In fact, typically Crown Counsel is quite agreeable to staying the charge if the accused is able to accept responsibility and do some community service.  A criminal defence lawyer can assist in the process.  It’s not very complicated.

It’s very disconcerting to hear of a lawyer making such statements to a prospective client.  I think that an individual charged with a criminal offence should be treated with an appropriate combination of honesty, sympathy, understanding, firmness and tact.  Clients should not be “scared” into hiring their lawyers.

At the same time, criminal lawyers should definitely not “oversell” their abilities such that the lawyer guarantees a result.  Generally, after reviewing the case my advice goes only as far as telling the client whether the he or she is “crazy” or “not crazy” in wanting to defend the charge.  In other words, if I think the case is totally hopeless to defend then I’ll advise they would be crazy to fight the charge and we should begin negotiating the best deal possible with Crown Counsel.  If there is a viable defence then I’ll advise the client that they are not crazy to fight the charge.  That’s as far as I’ll go. It’s always best to be realistic with a client.  I was fired from a high profile case because the client didn’t like my advice about his chances for a successful outcome – namely that he had little chance.  He fired me, went to trial, was found guilty and received about double what he would have received if he had followed my advice and made a deal with Crown.

In sum, criminal defence lawyers are not here to unduly frighten the client or tell the client only what he or she wants to hear.  We are being paid for providing a professional legal opinion.  That’s not necessarily a complicated thing to do.

Despite what people may think about police officers given the Robert Dzienkanski taser incident at Vancouver International Airport or beating up an innocent home owner or possibly driving while impaired and killing a motorcyclist who may have also been driving while impaired police officers generally do a good work at what is an extremely stressful job.  Most see a side of life that the general population (and especially us criminal lawyers sitting in our offices) don’t really experience in a direct (i.e. day to day being on the streets) way.

So please don’t take this post as being anti-police.  In my former career as a Crown Counsel I dealt with the police directly all the time and found them to be decent and hard working people.  Even today as defence I generally find the police I encounter on the “other” side to be professional and trying to do the best they can in keeping everyone safe.

But….if you are being investigated for a crime and a police officer says words to the effect of “Listen, we’ve heard what the victim had to say and we really just want to hear both sides of the story” you would be well advised to think very carefully before answering.

I have never, ever heard of a police officer, in response to a suspect providing his or her “side of the story” say “Oh that makes sense.  Well, see you later”.  It doesn’t happen.

The police are investigators.  They gather information.  It’s their job. However, you as a suspect are under no obligation to speak to an officer if you are a suspect in a criminal investigation. You have the right to remain silent. It’s the law. The police will tell you this if they are arresting you.

And once you speak to a lawyer and state you are satisfied with the lawyer’s advice (which will be, in longer or shorter versions, “Shut up”) they will start trying to get you to talk.

Then they will start questioning you – relentlessly.  If you tell them you don’t want to talk and they really want info from you they are going to keep going.  The Supreme Court of Canada has generally approved of the right of the police to not take “no” for an answer.

R v. Brown is an interesting 2009 case from the BC Supreme Court for those curious about Crown’s duty to not seek a conviction so much as present the evidence in an unbiased fashion.

To that end, here’s a quote from the actual BC Crown Counsel Policy Manual:

Role of Crown Counsel:

The role of Crown Counsel as set out in R. v. Boucher (1954), 110 CCC 263 (SCC) was recently endorsed in R. v. Brown, 2001 BCCA 14. The B.C. Court of Appeal quoted two passages from Boucher dealing with the special role of the prosecutor:

At 267, Mr. Justice Taschereau said:

The position held by counsel for the Crown is not that of a lawyer in civil litigation. His functions are quasi-judicial. His duty is not so much to obtain a conviction as to assist the judge and the jury in ensuring that the fullest possible justice is done. His conduct before the Court must always be characterized by moderation and impartiality. He will have properly performed his duty and will be beyond all reproach if, eschewing any appeal to passion, and employing a dignified manner suited to his function, he presents the evidence to the jury without going beyond what it discloses.

At 270, Mr. Justice Rand said:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

In R. v. Logiacco (1984), 11 CCC (3d) 374 (Ont CA), Mr. Justice Cory stated:

… He must be of absolute integrity, above all suspicion of unfair compromise or favouritism. The Crown prosecutor must be a symbol of fairness, prompt to make all reasonable disclosures and yet scrupulous in attention to the welfare and safety of witnesses. Much is expected of the Crown prosecutor by the courts. The community looks upon the Crown prosecutor as a symbol of authority and as a spokesman for the community in criminal matters…

Great trust is placed in the Crown prosecutor by the courts and by the public. Heavy obligations are imposed upon him in his quasi-judicial role. To be worthy of the trust and reliance which is placed in his office, he must conduct himself with becoming dignity and fairness.

The foregoing passages are examples of the high standards the Courts have of Crown prosecutors. The obligations of Crown Counsel and the dignity expected of that office are exceptional.

And in this corner, here’s a portion (but such a great portion) of Madam Justice Dickson’s wise comments in R. v. Brown:

[13]         In this case, I am satisfied the trial’s fairness and integrity was irreparably compromised by Crown counsel’s improper opening address to the jury.  When he told them a Crown could commit no greater sin than prosecuting an innocent person and then referred to the charge approval standard, the jury could reasonably infer that in his considered view, the accused was guilty as charged.  When he spoke of the Crown’s role and ethical duties and assured the jury there is a complex apparatus in place to prevent an unjustified prosecution, he implied that “there had already been an impartial determination of guilt by persons in authority.”  He also provided the jury with factual information about matters of no relevance to their task.

[14]         I do not attribute any ulterior motive or bad faith to Crown counsel in connection with the improper conduct described.  On the contrary, I accept that he made an error in judgment and failed to appreciate the implications of what was being said.  In addition, I would not characterize his language as vindictive or inflammatory.  It was, however, inappropriate to the task, imprudent, and ill-considered.  Regardless of motivation or intention, it is incumbent upon all Crown counsel to understand the parameters of proper conduct and to choose their words carefully, in accordance with those limits, in the conduct of a jury trial.

Can I get an “Amen” from the chorus?