Reasonable Doubt: Fair trials require lawyers many people cannot afford

[MindBomber]

Great article. I love the Georgia Straight.

I'm especially interested in reading the reactions of the current and upcoming lawyers on RS.

ON AUGUST 4, 1961, an earnest Clarence Earl Gideon stood before a judge in Florida, accused of stealing $5 in change and a few loose bottles of beer and soda from a closed pool hall. His voice was too low to be recorded in many instances, but he told the judge that he was not ready to go to trial because he did not have a lawyer and felt he needed one. The judge asked him if he knew his matter was set for trial. He replied that he did. The judge then asked why he had not made arrangements to have a lawyer. Gideon replied that he did not have the money for a lawyer. He then requested that the court appoint a lawyer because the U.S. constitution provided him with that right. The trial judge declined to do so. Gideon was convicted and sentenced to five years in prison, the maximum legal sentence.

He appealed to the Supreme Court of the United States. Those nine judges agreed with Gideon. At his second trial, with a lawyer able to point the jury to weaknesses in the prosecution’s case, Gideon was acquitted.

Today in the U.S., any person accused of a crime has the right to a state-funded lawyer if he or she cannot afford one.

In Canada, we have a similar right, although it is not nearly as broad as in the U.S. Section 7 of the Charter of Rights and Freedoms has been interpreted to allow for state-funded counsel where the accused can prove that trial without a lawyer would be unfair and where the accused cannot reasonably afford a lawyer.

When Ivan Henry was acquitted of a rash of sexual assaults after serving 27 years in prison following a trial without a lawyer, he stood on the courthouse steps and told a reporter that he regrets not having a lawyer: “A trial without a lawyer…that’s like a boat without oars.”

In B.C., crimes are prosecuted by one of two agencies: the federal Crown or the provincial Crown. Each takes a dramatically different approach to applications for state-funded counsel.

The federal Crown often concedes that the accused cannot afford a lawyer, but that the trial will be fair even without one. While I might disagree with this approach, it is far more reasonable than the provincial Crown.

First, the provincial Crown concedes that, yes, a trial without a lawyer would be unfair. However, it questions whether the person could reasonably afford a lawyer. When the cut-off for legal aid financial eligibility is essentially minimum wage and a five-day trial can cost upwards of $25,000, many people cannot afford a lawyer. To pretend otherwise is to ignore the financial reality of a good portion of Canadians.

However, the Crown relies on a case called Malik. Ever hear the expression that bad facts make for bad law? This is one such case. A wealthy accused in the Air India bombing trial transferred millions of dollars in assets to his wife and children and then turned around and said he had no money to pay for his Cadillac team of defence lawyers. To get around this rather obvious problem, the judge imposed very strict financial criteria for people applying for appointment of counsel and found that Malik had not been prudent in his finances and that he had not satisfied the heavy burden of proving that he could not afford a lawyer by providing detailed financial information. This requirement for “detailed financial information” is often used as a technical basis for refusing applications for state-funded counsel, even when it is abundantly clear the person has no money.

These same criteria are applied to everyone in the province. It requires “extraordinary” financial hardship, as well as doing everything one possibly can to save for a lawyer.

A recent case illustrates this. Campbell Ernest Crichton was charged with 23 counts of sexual assault in connection with his physiotherapy practice between 1994 and 2011. Trial was expected to last nearly 10 weeks.

At the time of his application, Crichton was living in his mother’s basement and collecting welfare. He had five-figure debts for his line of credit, credit cards, arrears in child and spousal support, and household debts. His only asset was a 2006 Imapala that would be more expensive to repair than it would fetch if sold repaired.

The provincial Crown argued that Crichton could get a fair trial without a lawyer. The prospects of preparing to cross examine 23 alleged victims as well as a rash of police officers is daunting to even experienced lawyers, particularly when the law of evidence in these cases is so complex.

The provincial Crown further argued that he had not been prudent in saving money for a lawyer. A 10-week trial could cost close to $100,000. Did the provincial Crown actually expect that a physiotherapist with Crichton’s debts and bad name could save or borrow that money over the course of one to two years from charge to trial? If so, that position is greatly disconnected from both Crichton’s reality and that of typical working people in this province.

Fortunately (and I say this for the sake of all involved), Crichton received funding for counsel. This means a fair trial, cross-examination of complainants by someone other than their alleged perpetrator, and efficient use of expensive court time. Most importantly, it means the judge and the jury will have all the relevant information before them to make the correct decision. Arriving at that decision will not be hampered by the police or prosecution’s “tunnel vision” as has so often been blamed for wrongful convictions.

The provincial Crown has a team of lawyers with particular experience in these matters. The government pays thousands of dollars to fly them around the province to oppose applications for appointment of counsel. In many cases, it spends more money on flights, accommodation, and travel expenses than it would cost to pay for counsel to represent the person at trial anyway. Evidently, the government considers this to be a prudent way of spending tax dollars.

I have said it before in this column: if the state considers it to be worthwhile in the public interest to prosecute someone, and then spend hundreds of thousands of tax-payer dollars punishing, supervising, and (hopefully) rehabilitating that person in a prison, then the job has to get done right. This requires a lawyer to cross-examine witnesses, make legal arguments, and navigate a complex legal system on behalf of an often distraught and incapable accused.

In B.C., we are apparently doing well enough to turn down a $40 million offer for naming rights to B.C. Place. Hopefully, this means we can promise fair trials to people who cannot afford a lawyer.

Reasonable Doubt: Fair trials require lawyers many people cannot afford | Georgia Straight

[dangonay]

^ You love the Georgia Straight? I can't stand that rag and their political leanings.

That said, I personally know three people who went to trial and had their lawyers paid for them. And they weren't legal aid or low-end lawyers - they were the best trial lawyers you could find. So I'm not sure why I should believe this article writer (and he's a lawyer to boot) when he cherry picks certain cases but leaves important details out. Did he really have to go back to a case in Florida from 1961? Surely there must be numerous examples he could have used right here in Canada.

How is it possible that I could have come into contact with three people who all had their lawyers paid for when this lawyer is apparently claiming that most people don't get lawyers? I'd like to know what his real agenda is and why he felt he needed to write such a one-sided piece.

[StylinRed]

legal aid hasn't been funded in years the funding has consistently been cut, every year, to the point where you only get legal aid if you're facing jail time! blame the liberals i do

unfortunately the right to a fair and speedy trial doesnt mean the right to a lawyer and so many lawyers have been fighting for Legal Aid funding but their protesting has fallen on deaf ears

Phil Rankin, whose legendary father, Harry Rankin brought Legal Aid to BC, has been spear heading the fight for legal aid support; Phil is seen here protesting in front of the vancouver courthouse along with 30 other lawyers trying to bring attention to the matter back in November (sorry that particular photo is from 2011 at another protest for the same cause)



BC trial lawyers withdraw services to draw attention to 'dire' legal aid funding | The Hook

Originally Posted by dangonay

How is it possible that I could have come into contact with three people who all had their lawyers paid for when this lawyer is apparently claiming that most people don't get lawyers? I'd like to know what his real agenda is and why he felt he needed to write such a one-sided piece.

depends on the severity of the case and the fact that many lawyers will take a case on compassionate grounds (without legal aid funding)

as with the lawyers noted above who had refused to take legal aid funding, i know some of them had offered legal services pro bono to those clients seeking them out

[subordinate]

Originally Posted by dangonay

^ You love the Georgia Straight? I can't stand that rag and their political leanings.

That said, I personally know three people who went to trial and had their lawyers paid for them. And they weren't legal aid or low-end lawyers - they were the best trial lawyers you could find. So I'm not sure why I should believe this article writer (and he's a lawyer to boot) when he cherry picks certain cases but leaves important details out. Did he really have to go back to a case in Florida from 1961? Surely there must be numerous examples he could have used right here in Canada.

How is it possible that I could have come into contact with three people who all had their lawyers paid for when this lawyer is apparently claiming that most people don't get lawyers? I'd like to know what his real agenda is and why he felt he needed to write such a one-sided piece.

You 100 % your friends weren't broke/had no savings?
I knew a guy, with a job just a couple bucks over min. wage, some savings, and was denied the funding.

Great article Mindbomber, I hope no one hear is going, "why would I need a lawyer, I never do bad shit." Shit happens, believe it or not, and you might come at a crossroads where a chick or another party is making B.S. claims about you and you are booked. And you may very well be in need of their services.

[Graeme S]

While the Straight has a hardcore left leaning, it's very informative and often shines a very different light on issues than other papers. I find that it's never a good idea to completely write off a medium simply because of its leanings--it's extremely helpful to see how other people inform themselves so that you can properly frame a debate or argument against them; I do that for both the right and the left.

We often hear about budget cuts and inefficiencies removed and that the court system is terribly inefficient so we have to cut funding...

But then we discover that the inefficiencies are because there aren't enough JPs and Judges, that there aren't enough public defenders nor prosecutors to deal with the case load, that the crown has to review each criminal case before charges are laid meaning that they have to work a case before actually working a case. People in the government often frame efficiency in terms of money spent and hours worked--but they don't talk about the inefficiencies like 18-month court delays.

My uncle, who lives in a co-op housing unit in the DTES talks often about the flawed nature of the courts. Dude busts windows to steal stuff for drugs. Dude gets busted. Gets arrested and detained, charges pressed. Goes to court. Asks for ROR because he has no money, is granted it and goes free. Busts more windows next day, gets busted again. Goes to court. Crown says "your honour, he was here just yesterday for this same charge, keep him in jail!" Defence says "Your honour, an accusation is not a conviction, you cannot jail him simply for having been accused of something!" And so he gets to get serially released and reoffend until the court date nearly a year and a half later. And when the trial date approaches, he and his lawyer deal with the crown and say "look, we'll plead guilty to like...two charges, and then he'll do six months, and then you can just drop the others so that we don't waste the court's time". And then it happens, and the dude goes away for six months...rinse and repeat the rinse and repeat.

tl;dr: reducing inefficiency is not the same as removing money from the system, which is in fact is often counterproductive.

[falcon]

Originally Posted by dangonay

^ You love the Georgia Straight? I can't stand that rag and their political leanings.

That said, I personally know three people who went to trial and had their lawyers paid for them. And they weren't legal aid or low-end lawyers - they were the best trial lawyers you could find. So I'm not sure why I should believe this article writer (and he's a lawyer to boot) when he cherry picks certain cases but leaves important details out. Did he really have to go back to a case in Florida from 1961? Surely there must be numerous examples he could have used right here in Canada.

How is it possible that I could have come into contact with three people who all had their lawyers paid for when this lawyer is apparently claiming that most people don't get lawyers? I'd like to know what his real agenda is and why he felt he needed to write such a one-sided piece.

He was referring back to a 1961 trial to show where the govnt appointed lawyers rule/law thing in the USA came from. Did you even read the article?

[dangonay]

Originally Posted by falcon

He was referring back to a 1961 trial to show where the govnt appointed lawyers rule/law thing in the USA came from. Did you even read the article?

I read it fully. Again, what does US law have to do with Canadian law? Why not talk about how court appointed lawyers work in Canada and initial cases where they came to be? Why not talk about Section 10 of the Canadian Charter of Rights and Freedoms (which deals with this)? That would seem to be much more relevant than a case in a different country with different laws.

I don't like this article because it's so typical of people with an agenda. He picks some very specific cases, leaves out details and then uses those to paint a picture of the entire justice system. For example:

- He talks about Ivan Henry and his wrongful convictions. But he does nothing to explain how it came to be and "implies" it was because he wasn't allowed a lawyer (quotes Ivan Henry saying he "regrets not having a lawyer"). But he leaves out the fact Henry requested to represent himself and wanted to dismiss his lawyer. The judge "strongly advised" him not to proceed without a lawyer and he still wanted to. This coupled with mistakes made by the police are why he was convicted, not because he was denied. Tell me, how many people reading this article do you think would come to the conclusion Henry was denied a lawyer and was imprisoned because of this? That's what it sounds like to me - until you go and read up on the Henry case.

- He talks about Crichton and his trial for 23 counts of sexual assault. He goes on and on about how he has no money, lives in a basement or how the crown is opposed to him getting a lawyer. When he reveals the fact that Crichton did get his lawyer he comments "Fortunately (and I say this for the sake of all involved), Crichton received funding for counsel". He makes it appear this was some sort of a "miracle" or "rarity".

- He talks about the significant costs for a trial (a 5 day trial costing $25,000 or $100,000 for Crichton's trial). If you're going to trial and they set aside 5 days, then you're up for serious charges. Stealing cars or breaking into someone's house doesn't require 5 days trial time.


If he wants to paint a balanced picture, then why not pick 100 cases at random where people had to rely on legal aid or court appointed lawyers and analyze those cases? Why only pick a few high-profile cases?

[Majestic12]

Duration of trial is not correlated with the severity/worth of a case. On the civil side, I've seen trials that are worth less than 25k go for multiple weeks. On the other hand, I've seen trials worth 500-800k go for a week or less.

[mikemhg]

Originally Posted by dangonay

^ You love the Georgia Straight? I can't stand that rag and their political leanings.

That said, I personally know three people who went to trial and had their lawyers paid for them. And they weren't legal aid or low-end lawyers - they were the best trial lawyers you could find. So I'm not sure why I should believe this article writer (and he's a lawyer to boot) when he cherry picks certain cases but leaves important details out. Did he really have to go back to a case in Florida from 1961? Surely there must be numerous examples he could have used right here in Canada.

How is it possible that I could have come into contact with three people who all had their lawyers paid for when this lawyer is apparently claiming that most people don't get lawyers? I'd like to know what his real agenda is and why he felt he needed to write such a one-sided piece.

Christ your posts on this site are always garbage.

[dangonay]

Originally Posted by Majestic12

Duration of trial is not correlated with the severity/worth of a case. On the civil side, I've seen trials that are worth less than 25k go for multiple weeks. On the other hand, I've seen trials worth 500-800k go for a week or less.

Not entirely, but it's a good indicator. Judges set aside time based on the amount of evidence and number of witnesses that need to be presented. More witnesses and more evidence equals more work for the legal team. Of course, one could spend a great deal of money investigating and analyzing evidence before a trial (like getting tests done) which could add greatly to the costs. There are always exceptions. Or are you claiming these types of cases are "the norm"?

BTW, what kind of idiot would pay a lawyer for "weeks" over $25K? Was it just to spite someone? Or were they hoping for a huge payout and got burned by only getting $25K? If it's the latter then it's a poor example.

[dangonay]

Originally Posted by mikemhg

Christ your posts on this site are always garbage.

You have something to add? Did I lie about the circumstances surrounding Henry (the example from the article)? Do you think US law is relevant to us in Canada? Do you think the original article is completely unbiased?

Or do you just want to sit there and whine?

[Majestic12]

Originally Posted by dangonay

Not entirely, but it's a good indicator. Judges set aside time based on the amount of evidence and number of witnesses that need to be presented. More witnesses and more evidence equals more work for the legal team. Of course, one could spend a great deal of money investigating and analyzing evidence before a trial (like getting tests done) which could add greatly to the costs. There are always exceptions. Or are you claiming these types of cases are "the norm"?

BTW, what kind of idiot would pay a lawyer for "weeks" over $25K? Was it just to spite someone? Or were they hoping for a huge payout and got burned by only getting $25K? If it's the latter then it's a poor example.

Judges don't set the time estimates, the lawyers do. Judges can make orders to add/reduce time, but it's definitely up to the lawyers to decide for the most part. Judges don't know what witnesses are going to say what, so they really have no idea how a trial is going to progress until it gets going.

Of course you would walk into trial having done all your analyses and investigations. If you go to trial and there are stones left unturned, you would be a terrible lawyer.

For sure more witnesses require more prep, but it also depends on the kinds of witnesses and the subject matter they are to address. Some witnesses take 5 minutes. Some take 5 days.

A lot of trials that go for a long time at that price range are usually done on contingency, so nobody is paying the lawyer. He/She takes a percentage cut in the end. It's obviously not very profitable for the lawyer, but they are good for the community, good publicity, and good experiences.

[Gridlock]

Originally Posted by mikemhg

Christ your posts on this site are always garbage.

I'm no mod here, but this isn't constructive AT ALL.

Those of us that enjoy having deeper conversations here in O/T on a variety of topics would prefer you cut the man's post to shit, a word for word deconstruction if you want, telling him exactly why his post is completely irrelevant to all logical thought, rather than a quick drive by insult.

Just a tip.

[broken_arrow]

Here is my input on this issue. I am not a lawyer yet (LLM student), nor do I focus on administrative/criminal law (I study estate planning/wealth management). Hence, I do NOT have any real world experience with these kind of issues and I apologize in advance if I get stuff wrong.

Here is what I know about the right to state funded legal counsel:

Procedural fairness does not necessarily entail a right to legal counsel even at one’s own expense and this was underlined in the case of Re Men’s Clothing Manufacturer’s Association. However,where a decision impairs s. 7 interest, the state MUST provide the individual with legal counsel in order to satisfy the requirements of principles of fundamental justice. That was mentioned in New Brunswick (Minister of Health and Community Services) v G.(J.) [1999] In that case, given the seriousness of interests involved, complexity of proceedings, and limited capacity of the claimant, Lamer C. J. found that the principles of fundamental justice required a fair hearing and that in these circumstances a fair hearing required the Crown to provide legal aid to the C.

Hence, I do think that although the provincial court may refuse state funded legal aid, on an appeal to Federal Court, the situation can change. But again, it all depends on the seriousness of the case. I do agree though that once an individual's s. 7 rights are infringed and the individual is looking at a possibility of facing jail time, for the sake of procedural fairness, that individual should be provided with a lawyer.

On another note, I currently work/volunteer for Access Pro Bono of BC. You'd be surprised how many people we help. Starting from legal advice clinic, to paralegal support groups, we try to help people with multitude of issues and a variety of cases, from criminal to civil. From what I hear, BC is currently the only province with a well developed network of pro bono humani generis work. There is one downfall - not many people know about organizations like APB!

Anyway, here is just my little input on this issue. My apologies if I got my law and or facts wrong.