Bail and Radicals

Being a criminal defence lawyer is not for the faint of heart. If you can’t handle hearing about misery and the gritty details of broken lives, this job is not for you. Unlike television, client matters don’t neatly wrap up in an hour.

My transformation from law student to lawyer began when I first met a newly arrested person in lock up. I had my new briefcase, my freshly printed business cards and a new suit. My head was swirling with the cases I had read in law school. I believed that I’d identify his legal problem, figure out the applicable case, explain everything to him and we’d be good to go.  Sitting across from me though was my disheveled client wearing last night’s clothes, pleading with me to get him out of this place. He was desperate, twitchy and anxious, coming down from some sort of high and not terribly interested in what my mark was in Evidence.  

He was like many people I’d come to represent at the outset of my career: lifelong victims of physical and sexual abuse, neglect, malnourishment, lack of education and more often than not addiction to drugs, solvents and alcohol. In bail court his story was unfortunately not the exception but the rule.

Bail court often resembles the MASH unit of the criminal justice system. First, get people released quickly so they can fight their charges from outside of a cage. Second, fight against the imposition of overly restrictive bail conditions, especially ones that can come back to bite your client – don’t set him up for failure.  Because bail courts can be fast moving and decisions are made quickly it’s important to remember the main rule of representing your client at this early stage: do no harm.

I soon realized that not all of my clients would get released. Not every prosecutor and judge shared my interpretation of who was releasable.  And, even though we all had the constitutional right to reasonable bail, the prosecutor, judge and I didn’t always share the same view of what reasonable meant.

I represented countless people who drank alcohol in quantities that would have killed the average person. Many of them had no fixed address and few supports in their lives. They drank everything and anything that contained alcohol, from whiskey and beer to rubbing alcohol, mouthwash and antifreeze.  Alcoholism was but one of the many problems they had.

I couldn’t hear the stories of people whose lives were broken from the start and not understand how, in their mind, alcohol served as a temporary fix to make their tormenting thoughts go away.  When asking myself if I would’ve been any different had I lived their life, I’d often think of Robert Kennedy’s words after seeing in person the miserable working conditions of Chilean miners, “[i]f I worked in this mine, I’d be a Communist too.”

My pleas to them that they stop drinking were usually met with silence or, “I’ll try to but it ain’t easy man.”  As if these people would listen to some newbie lawyer who barely knew where the courthouse washrooms were.  Like they didn’t already know the destruction that alcohol addiction had visited upon their lives. I’m not ashamed to admit that back then there were many clients whose lives were so bleak that I wondered if I had the right mental make up to help these people.  The most difficult moments for me was meeting men in lockup and finding out that we were the same age. I had the university degrees and they had barely finished grade 8. I had a supportive family and they had no clue if their parents were alive or dead. With a couple twists of fate I could’ve easily been in their place.  To say we were flip sides of the same coin would be to stretch that expression to the point of meaninglessness.

It didn’t take long for me to become frustrated and angry at a legal system that continuously placed abstain from alcohol clauses on their bail conditions. I knew that for these hard-core alcoholics abstaining from alcohol was pretty much impossible. It’s not that they didn’t want to quit but they knew that they would slip up and drink, as soon as day followed night.

I’d talk to more senior criminal defence lawyers and they’d hear my frustration with this system, which set people up to breach. They’d patiently listen to me. They appreciated that these frustrations were a rite of passage for many new criminal defence lawyers. They understood how feeling powerless and angry took a toll on new lawyers. They’d tell me to ask the judge not to impose an abstain condition because it was unfair and unjust to ask a chronic alcoholic – a person with an illness – to stop drinking or they’d be charged. They said that was a standard part of their bail submissions and had been so for many years. I felt liberated. It was like they’d told me about the secret passageway behind the bookcase.

At the next bail hearing I had where this issue came up I asked the judge not to impose the abstain condition because of my client’s chronic alcoholism. I said there was no reasonable prospect of my client complying with that order. “Your Honour” I said, “we’re just setting him up to breach.” The judge simply stared at me and with a slightly annoyed tone said that in this jurisdiction abstain conditions were standard on bails. He then gave me a short lecture about the sanctity of court orders and respect for the law. My client was released and a couple of weeks later he was arrested for failing to comply with his bail condition by drinking alcohol.

I remember telling my boss, a wily seasoned criminal lawyer, that I asked the judge not to impose the prohibition order on my client’s bail but was denied in my request. He just looked at me Mr. Miyagi style and basically said, “tough break kid but that doesn’t mean you stop asking for this condition not to be included. Don’t give up.  Keep fighting.”

Over a decade later I came across this article about a judge in Alberta who has seen the futility and injustice of abstain from alcohol conditions for chronic alcoholics. Judge Rosborough has all the qualifications for this apparent Nixon to China moment.  As a Chief Crown prosecutor Rosborough we’re told, he was never accused of “being soft on crime” and he was a “no-nonsense”. 

I don’t mean to be churlish or to rain on the man’s parade but criminal defence lawyers have been saying this for years and have been pretty much ignored. I guess because we represent criminals we lack the credibility that people like Rosborough have. We’re just apologists for lawlessnes, while he wears the red sash with all it’s inherent learned righteousness, right?

Welcome to the party Judge Rosborough. Pull up a chair and listen to some of the other radical things criminal defence lawyers have to say. 

Posted in Bail, Criminal Justice System, Defence Lawyers

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