We don't want to preach all the time -- we know it gets tedious. But occasionally, the urge becomes irresistable. Essays, editorials, commentary? Yes, but I also really want to win your heart and mind… Sheila Steele
Rubin "Hurricane" Carter was right on when he said that there had been enough Royal Commissions and Public Inquiries. We agree that we have our work cut out for us getting the recommendations of these inquiries implemented. So far police and prosecutors have not only ignored commission advice about how they could clean up their acts; they have virtually thumbed their nose at the commissions and fought vigorously against outside overseers or any other mechanisms to make them accountable.
Malicious cop Brian Dueck was able to walk away from Criminal Code offences: perjury and deceiving the court. He was able to do this because no non-police body was allowed to see his file. Criminal cops all over the country, from within the RCMP to city and municipal forces break the law with impunity. That is one front we must continue to fight but we know that law-breaking cops actually can be brought to trial and sometimes spend some time in jail. We saw it happen to Hatchen and Munson even though Dueck was able to walk away.
Malicious prosecutors have a different kind of immunity. We don't hear about prosecutors going to jail for misconduct within their profession. They can behave with malice and even when their bad convictions are overturned, they are allowed to continue in their jobs. The occasional one gets sent back to private practice if they get caught, say, jury tampering as was the case with Robert Latimer's prosecutor. They rarely go to jail.
We can look no further than south of the border to see that while the occasional cop gets jailed (and there is a horrible backlash going on in California now as two black youths have been viciously attacked by police -- one shot dead, the other beaten senseless on videotape -- and there are no repercussions.)
Prosecutors are also arrogant and testy south of the border. Tony Rackauckas in Orange County staged a photo op with exonerated 23 year incarcerated Dwayne McKinney to help get elected. He has, since his election, apparently said he does not believe in McKinney's innocence. Gaining convictions, whether honestly or not, is simply a stepping stone to political office for a cynical prosecutor. In Canada it is often a bridge to the bench.
We think that the Criminal Code section on malfeasance and mischief must be expanded to specifically include offenses which only prosecutors can commit: fixing the evidence to get convictions on innocent people. There should be minimum provisions for sentences (five years?) for such offenders.
This is our own recommendation, one which we doubt any commission, including the current inquiry into the wrongful conviction of David Milgaard, is likely to come up with. It is an obvious recommendation and it would see Serge Kujawa serving time.
Oh, the justice system harbours a cozy group which is far too forgiving of its miscreant members. A person without money or connections is not likely to find justice in this system.
When Richard Klassen and I first went online in the summer of 1998, one of the first pages we wrote and published was Court Advice: How to walk yourself through the Justice system.
We were motivated to do this because of the many pamphlets we had seen on court and other justice venues' magazine racks which claimed to inform people of their rights. (There would often be free copies of the Charter, published by Federal Justice and a "know your rights" handbook authored by Matt Miazga and financed by PLEA with government grant money.)
Except for the Charter (which is no longer freely distributed) most of the information was not helpful. It was actually unhelpful insofar as it was written from the viewpoint that if you were in a position to be picking up this handbook, you were already powerless and here are your instructions of what to do to keep those who have you in your power from locking you up and throwing away the key.
Nowhere did we see any advice on what to do if you found yourself falsely charged or over-charged.
Everybody's advice would be: hire the best lawyer you can find. Your choices are two: go to jail or remain free but impoverished because the lawyer will have all your money and property.
That was not our advice or our attitude. Seven years of experience have strengthened our resolve. Seven years of observation have confirmed the sad fact that there is no justice for the powerless in Saskatchewan.
Last week, a young person I know stole a carton of cream from a convenience store. He thought he had got away with this shoplifting exercise until he was suddenly knocked over by a car -- a taxi-cab. The taxi driver kneed his back to keep him on the ground, twisted his arm and dragged him back to the store. Police were then called. (It is unlikely the charge will stick as vigilantism is frowned on by the courts). The point of bringing up this incident was to smoothly segue into a comparison of defence lawyers and taxi drivers.
Right now, many defence lawyers act like the taxi driver above: they may not run you down with their cab but they certainly deliver you into the hands of those who seek to lock you up. A crooked taxi-driver will also take the longest route and keep the meter running for the longest possible time.
Lockyer is in town for the Milgaard Inquiry and was part of the recent announcement that a 691 application was being granted to Danny Wood. We only wish that some of his principles would rub off on local lawyers. Unfortunately Saskatchewan defence lawyers want praise without doing any work to earn it. When Clayton Ruby was brought in to argue the appeal of T.S., the young offender in the Martensville trial, we heard a lot of grumbling. Many lawyers attended the hearing which Ruby won easily by presenting a straightforward, no frills map to the Appeal court. The simplicity and grace was dazzling but it did not brighten the minds of the locals.
That was ten years ago and still there are no defence lawyers who have stepped up to the plate. But I am straying from my taxi-cab metaphor.
A good defence lawyer should be like a good taxi driver: you are lost in an unfamiliar place and he will get you to your destination in the quickest, shortest possible way. Your destination is freedom and the ride should be pleasant and comfortable.
When you hire a taxi, do you expect the cab driver to tell you that you are inferior because you don't have your own car. That you are powerless because you need to get somewhere and you don't have "transportation" Or that even if you did have your own car you would not drive as well as he does? You don't really want to hear about how hard his job is. You don't want to hear about a short cut that only he knows about which might or might not be open but if it isn't, You might not be able to get to your goal. Trust me is a common phrase from these bad drivers.
You do not expect to be insulted when you hail a cab and it stops for you. You expect to be helped with your bags, taken quickly to your destination and not to end up on dead-end streets of going too fast over pot holes and too slow on the through streets. If the taxi driver does his job well, you will arrive safely where you want to be and pay a fair price which has been negotiated. You will not expect to pay more than what is on the meter.
A defence lawyer should be like a good taxi driver or a good tour guide. He should know the territory and be able to show you the route on a map. He should be confident in his skills and prepared to argue your case before any judge. A defence lawyer who is too cozy with the Crown must be distrusted. Many Crowns see their role as being to set up roadblocks to hinder the derfence. While dishonest prosecutors are the subject for past and future sermonettes, the role of the defence lawyer is to present the prosecutor with reasonable alternative theories to consider. An honest Crown is obliged to consider such theories and re-examine his evidence in that light. Any discussions between the Crown and your defence lawyer should be only about how to arrive at a fair outcome.
How many times have you heard defence lawyers complain that there are certain judges who won't give him a fair hearing? While there is no doubt some judges are erratic and even unfair, there are mechanisms for such judges to be taken to task. Defence lawyers should not be twitchy about facing any judge.
This is an expansion of a theme we have been promoting ever since we went online. After observing several trials and attending in many court rooms, we also came up with the following:
(We would also point out that when the Crown decides to proceed by direct indictment, there will be no preliminary hearing. Since prelims are held only at the Crown's discretion, it would logically follow that they are a tool of the Crown.)
Many lawyers will tell you that this is an opportunity to hear the Crown's case. Think about it. The Crown should already have presented you with everything you need to know through disclosure. They are legally bound to do this. The law does not allow surprises in the courtroom.
A preliminary hearing is the Crown's dress rehearsal for trial. It is a chance for them to see how well their witnesses perform. It is a chance for the cops to get paid time off from busting people and get some practice trotting out the evidence. It is a chance for them to scrutinize YOU to see how nervous you are.
A Preliminary Hearing is a confidence-building excercise for the Crown. The Crown will also try to make it into a confidence-destroying exercise for you.
A preliminary hearing is often an opportunity for the judge to catch up on sleep. Since the huge majority of prelims end in the accused being ordered to stand trial, the judge doesn't have to pay close attention. If there is any evidence at all -- and not necessarily good, closely scrutinized evidence -- the judge will order a trial.
injusticebusters say: Kill your Preliminary hearing. When you are arraigned, Plead Not Guilty, ask again for full disclosure and ask for the quickest possible trial date and say you elect to be tried by judge and jury!
Dragging your case on is of no advantage to you. Hardly anybody wins on the charter argument that their case went on too long. Dragging the case on is a make-work project for the officers of the Court. The cops, the Crown, the judges and staff all get to haul boxes of paperwork and themselves and witnesses around from one place to another and get paid for doing it. Kind of like a boring holiday.
Preliminary hearings are also a chance for defence lawyers to pick up some extra cash. Talk about a free ride on the taxpayers' ticket! They get dressed up, go to Court, watch the Crown go through its rehearsal, accept the judge's order to send you to trial, maybe go for drinks with the Crown prosecutor afterwards and then go up and write you a bill for several hundreds of dollars!
You should also know that in the event you are wrongly convicted and decide to launch a civil claim, the fact that you were indicted by a preliminary inquiry will be used against you by those you are suing. (This was used by Dueck, Miazga and Bunko-Ruys the Klassen/Kvello civil trial. It was not an effective argument but it was one more hurdle to overcome)