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Our court advice (page 2)

This may have worked for Richard Klassen but a quote from Abraham Lincoln:
"He who represents himself has a fool for a client" Consumer beware!
-- injusticebusters.org

Practicing Justice without a licence for almost 7 years!

Our court advice pages were among the first we posted when we launched injusticebusters on Sympatico in June, 1998. Many people have found them to be sound and useful. There is not a word we would change in any of this . . . it is all straightforward, sensible advice that anyone who is improperly charged or innocent should find useful. One injustice we have very little help for, and which we have seen repeated so often we believe it must be very widespread is the tendency of judges to hold people in remand for weeks on end while legal aid sorts out its difficulties in dealing with the huge numbers of cases it must defend. Saskatoon Legal Aid routinely conducts itself as though it is a private law firm -- claiming a conflict of interest in circumstances where they have both a defendant and complainant involved in the same case. We don't know if this is part of Jane Lancaster's general delusion about how important she is (managing the biggest law firm in the province?) or if this is becoming a problem across the country.

Our first advice remains: if you are guilty as charged, plead guilty be done with it. If the charges are not fair, or if you are innocent, insist on your day in court.


injusticebusters are of the opinion that Preliminary Hearings are a waste of time

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)

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The Law Society of Saskatchewan has been contradicting what we say and many prosecutors actively discouraging -- even threatening people who ask for their own disclosure and state they wish to represent themselves. Two we know of in Nov.-Dec. 2001 are McNab and Klause. See our new pages on disclosure and the secrecy surrounding discovery material


As I have been updating the website, I came across a link from 2000 on the Federal government's website regarding preliminary inquiries. I recalled that the article made the point that with the Supreme Court decision regarding disclosure in Stinchcombe, and the Crown's obligation to disclose ALL relevant information BEFORE a preliminary hearing, that the function of preliminary hearings had changed. At the preliminary hearing, the prosecutor presents the most important parts of the evidence against the accused. The prosecutors' deskbooks are interesting.


Hi Sheila !!

You are welcome to publish my letter on your website (edit it if you wish ; just another view) and I only state this advice for HE said / SHE said cases.

For many Historical allegations of sexual assault and for my case, we also had the complainant's testimony in Voir Dire as Similar Fact in each province. Their Similar Fact testimony was eventually excluded. A jury only gets to hear complainant's evidence once and they can put on a good emotional performance each time. Liars have had a lifetime-of-practice before they ever try their luck in court. In "Recovered Memory" cases, complainants may even believe their allegations and thus be VERY emotional. Eventually my defence also had their sworn testimony in 11 RCMP statements, letters, and civil affidavits (3 to 5 each) ; 4 civil discoveries ; and 24 psychologist sessions. It took time to identify and then FORCE disclosure of all this from Crown and civil attorneys.

I was also lucky that the original sworn "Information"s (by police) had many irregularities, so many counts, timings, and changes were made when Indictments were finally filed in both provinces. If a direct Indictment has errors some counts can be dismissed at the end the Crown's case and they want to avoid this. The Crown was still making changes to the Indictment at the start of my 4th trial, but I wanted EXONORATION and not just an Acquittal. Crown also wanted to see at Preliminary Hearing if there was ANY evidence to take to trial. Today a respected defence attorney might get charges STAYED after a poor Preliminary Hearing even after the defendant has been bound over for trial (reduced costs ; NO defence required). This is the direct result of Klassen, Dix, Baxter, Spirak, Andre, and Proulx cases.

Very few attorneys that I know would recommend a Jury for male accused in sexual allegations. Later, many attorneys criticized my choice of a Jury for my 1st B.C. trial.

I also viewed much of the video testimony in both the Pittman and the Shanley cases. After those Jury Verdicts, I have little faith in the U.S. justice system, their jurys, and their concept of "Reasonable Doubt". Both defences also left much to be desired.

My statistics of 8% to 10% false allegation of sexual assault came from a decade of U.S. FBI data ; and from five years of Canadian VICLAS RCMP data with "Unfounded" numbers separated from the "Demonstrated False" and "likely" numbers. These represent 100's of thousands of reports to police. You can get much higher percentages of false claims from smaller databases such as Toronto police data ; Dallas, TX, Rape reports ; and Child Services data.

Best Wishes,
Keep up the Great work,

J. Charles Scrivener.


----- Original Message -----
From: Sheila Steele
To: Charles Scrivener
Sent: Saturday, February 19, 2005 2:13 PM
Subject: Re: Preliminary Hearings

Well Charles --

Interesting points (And I would like to publish your letter on the page with the Kill your prelim advice.)

My thoughts:

If the Crown is hell bent on a witch hunt, it is hell bent on a witch hunt. For the Martensville people they went to direct indictment and counsel was unable to get preliminary hearings. Eventually the Sterlings were acquitted (except for one charge on Travis which should have also been got rid of.)

I would think that voir dires could be effectively used to get rid of testimony from crying women and children, especialy if there is no corroborative evidence.

I just watched the trial of Christopher Pittman. I'm not sure I would ever want a jury trial in this day and age.

I think that in Edmonton, it has been a much larger per centage than 10 for false allegations in domestic situations. I thought it was more like 40.

I'll think about what you have said.

Sheila

On Feb 19, 2005, at 2:56 PM, Charles Scrivener wrote:

 

Hi Sheila !!

I was reading your advice about waving Preliminary Hearings, entering Not Guilty Pleas and asking for an immediate trial by judge and jury. My experience and research indicates that this is VERY BAD advise for some specific cases like False Historical Allegations of Sexual Assault where the ONLY crown evidence is the testimony of the complainant. Most attorneys that I know and most Wrongful Convictions of historical childhood sexual assault are convictions BY A JURY (including my own). All experienced justices have handled cases of false sexual allegation (8% to 10% of sexual assault allegation reported to police are false, consensual, or mistaken "recovered memories"). Most jurors believe a crying child or adult because allegations of sexual assault are so horrendous especially if alleged to have occurred against children.

The preliminary Hearing permits the defence to tie down the complainant's testimony (the only evidence in historical allegations) and allows more time to get FULL disclosure. False complainants can also be pushed into giving details, times, and locations that can be PROVEN false with documentary evidence at trial (had a year to locate documents and photos). During my cases, we made claims of improper Crown disclosure during most court appearances right up until my 4th trial (Jan.' 94 to July' 98). The police often do not provide Crown counsel with all relevant information (they had 5 files in my case and had lost documents). Thus RCMP and complainant testimony often conflicted by the time of trial. At my 4th trial NO policeman ever took the stand. Police make no effort to obtain supporting evidence for decade old allegations. They do not even explore motivations for false allegation. They simply "troll" for other "potential victims" through letters and publicity.

A Preliminary Hearing also permits the defence to force the Crown to call additional witnesses. We either subpoenaed or threatened subpoena of certain Crown witnesses at both my Alberta and British Columbia Preliminary Hearings when the Crown told us that they weren't calling them. We forced the Crown to change plans, because they would look stupid in court when the defence started calling their intended trial witnesses. We documented the complainant's parent's PERJURY by this method. Their testimony at trial was found to be "of no value" by the justices deciding two of my trials. Thus, by my 4th trial the parental testimony was of more value to my defence than the Crown's case. The additional time also permitted the defence to document psychologists seen and get their notes ; and to interview former babysitters named. These were valuable independent defence witnesses that denied my presence during alleged assaults and also confirmed the timing of the 1st claims of abuse and the origins of the families conspiracies and motivations.

Preliminary Hearings can still be very useful in HE says / SHE says cases. Disclosure is also still a big problem in historical cases where psychologists/counsellors and extensive family questioning and secrecy are involved.

Best Regards,

J. Charles Scrivener.


The sweet taste of winning a seat belt ticket

  • In October, 1998 I was stopped and charged with my first seat belt violation while driving my mother and my son to a family Sunday brunch at 11 a.m. I was more than annoyed but I tried to keep it from wrecking my day. I decided to plead not guilty to the ticket and if I was found guilty, arrange to pay the fine off by working community hours. The matter came to Court on Feb. 16.
  • The officer who had stopped me insisted that the incident had occurred at 11 p.m. I questioned him about this and he was insistent. Court was adjourned for twenty minutes while the Crown prosecutor went to check what shift he had been working on that date. They returned to report that he had indeed been working days and not nights as he remembered. The case was immediately dismissed.
  • I would point out that not only did the Crown fail in collecting its $70, which it really did not deserve from a person who normally wears a seat belt, has a safe driving record, and was driving the only car on the road that morning driving at a safe speed and observing all other traffic regulations, but its attempts to collect this amount which is a paltry sum to them but a significant amount to me, it also cost them a considerable amount of money to fail to collect it: the police constable's salary while he's in Court and not out there nabbing more people for minor violations, the Court's time, etc. I didn't beat the system but I fought it to a draw. My inconvenience and embarassment was equal to theirs. More importantly, if people took their small matters to Court and it cost the Crown as much to collect its nickle and dime fines, they would not be so quick to see stopping citizens for minor infractions as lucrative activity. -- Sheila Steele

A recent experience from B.C.

Just so you know [if you don't already] a disputed ticket under the MVA of BC [or regs, or wherever it is] is not won by default, [if the cop does not show] but only if the disputer has a legal argument ready to put forth, and the judge [or whatever title they go by] will ask you to stipulate a bit about it to make sure you do.

In my case I had the usual 30 days to file a dispute, or otherwise I would have been deemed to have pleaded guilty to the ticket, even if there is no such offence, and the amount ticketed due and payable if correct or not! Yet over two years later I received a date in the regular everyday mail, had I not received it, I would have had 60 days [not quite sure here if its 30 or 60] to find out I did not receive it and reapply or again I would have pleaded guilty. Fortunately I received it, although I had nearly forgotten all about it. On the ticket the cop had called my Corvette a Camaro [ which is perfectly o.k. as long as he had my identification and plate number correct, he did] The charge was written "failure to report a change of address" and numbered "failure to report a change of name" I had never done either so I thought I should not be found guilty.

Once in court I sat through 4 people in a row, not remanded, nor winning, due to the cops absence, but rather be found guilty because they had no legal argument to put forth. My turn came and I stuttered and stumbled my argument as well as the fact that two years seemed a little unreasonable, when I am only entitled to 30 days. The lady in charge [sitting where the judge sits and answering to your honour] said that my argument did not in itself win, but I was now entitled to win by default. I honestly think I could have lost if the cop was there, thankfully I'll never know.
Larry Klenman 947 Sherwood Ave Coquitlam BC V3K1A9


Don't be a dope -- Stop pleading guilty!

  • On February 1, 1998 at 7 p.m., four cops landed at a house on 26th Street West in Saskatoon with a warrant to search for magic mushrooms. It was a Sunday night and eight young people were in the house. All eight were searched. No mushrooms were found. Frustrated, Constable Brad Hazelwanter, Cst. Chartier and the others took a hookah, a coffee grinder, a scale and a bottle cap which was smeared with a substance.
  • One week later, Hazelwanter charged Marlon with possession of an illegal substance -- not magic mushrooms.
  • Marlon prepared a defence. In fact, he had several. The weight of the substance -- which a lab in Winnipeg certified as being cannabis resin -- was not clear. It was certainly not clear that Marlon had been in possession of the substance. The warrant was questionable.
  • Marlon went to court on June 23; Hazelwanter was the Crown's only witness. Marlon represented himself and injusticebusters were present in the courtroom. The judge gave Marlon a lengthy lecture about how unwise it was for him to be without counsel. "This is a serious charge," she said, and "even experienced counsel can miss things."
  • As it turned out, her words were too true. Crown counsel, Laurier Caron, failed to establish jurisdiction. In other words, when he elicited from witness Hazelwanter the address where the bust took place, he failed to say Saskatoon.
  • Case dismissed!
  • When Marlon was eventually rounded up in the notorious Flotilla sting, he did not fare so well. He ran a good case, but the Saskatchewan Appeal Court upheld the dirty police work as legal. Judy Halyk was the Crown prosecutor who entered the dirty evidence. His appeal Appeal can be found here.

Good luck, Marlon!