A National Shame: Ashley Smith’s Imprisonment

Ashley Smith’s abuse at the hands of Correctional Service Canada’s staff should make Canadians question their confidence in CSC’s ability to humanely treat and rehabilitate anyone. People should consider the prison staff’s dehumanizing treatment of a teenage girl. We can now see how long the odds are that a prisoner under CSC’s care will be “rehabilitated”.

Also, shop let’s stop believing that Canada jails its people humanely.  Do you believe that CSC, cure which so mistreated Ashley, story wouldn’t treat its adult prisoners the same way or worse?

It didn’t appear like this was the first time CSC staff manhandled an inmate to administer drugs – they didn’t just rush out to buy hazmat suits and gas masks only to restrain Ashley Smith. How many other people have been on the receiving end of CSC’s unique hospitality? How widespread is this type of abuse? Any other victims must be heard at a full commission of inquiry into the CSC and its treatment of prisoners.

The next time you hear anyone argue that we should get tough on crime by sending our youth to jail think about Ashley Smith.  Think of how frightened she was.  Think of her asking, “How can it get worse?” Think of her grave.

Posted in Criminal Justice System, Jails, Youth Tagged with: , ,

Trials: Don’t Forget Fairness

This past weekend Supreme Court Chief Justice Beverly McLachlin commented on the need to get “trials heard more quickly” while observing that this was a “constant struggle” because criminal justice is a “complex and difficult business”.

Undoubtedly the criminal justice system is made difficult because of the many competing interests, which collide daily in this nation’s courtrooms. Judges, prosecutors and defence lawyers all have distinct rolls to play in that system and it’s impossible for everyone to always agree.  The Chief Justice alluded to this reality when she reminded her interviewer that although trials need to be heard more quickly we must be mindful of “maintaining the position” of the defence and the prosecution.

But in our desire for speedy trials let’s not forget fairness in our criminal justice system. How do we address the inherent imbalance of an individual – presumed to be innocent – going up against the State with all its resources?

Is it fair for example that it’s getting more difficult for people to receive Legal Aid funding?  Is it fair that defence lawyers who accept a Legal Aid certificate are expected to do more with less and often have to subsidize their client’s defence in the form of unpaid work?

If we want a first class criminal justice system it’s going to cost us.  We need to pay our judges and prosecutors well.  We need to pay for properly functioning modern courthouses that can deal with the daily flow of people charged with crimes. No less important is the need to pay for an independent defence bar that zealously advocates for clients without wondering whether defending their clients will lead them to bankruptcy. An independent defence bar, able to go toe-to-toe with the prosecution, is what makes our criminal justice system different and we as a society are better off for it.

It’s no secret that many people who get caught up in the criminal justice system are not wealthy so they usually can’t afford to pay for a lawyer.  In times of budgetary restraint Legal Aid has to tighten its belt just like everybody else.  Often people are denied Legal Aid coverage forcing them to face their criminal charges without the benefit of counsel. An increase in the number of people representing themselves in court however will not help speed up trials and it will do absolutely nothing to ensure fairness in the criminal courts.

Our current federal government wants to get tough on crime, increase sentences for many types of offences and to blunt some of the protections under the Charter of Rights and Freedoms.  That’s nothing new as governments rarely pass up an opportunity to show voters that they can keep the streets safe and make sure the bad guys are behind bars, but all of that costs money.

In principle most citizens want an independent, properly funded defence bar able to provide the best defence possible against the allegations of the state.  There are few things in this world more destructive to a person’s well being than going up against the State with all its resources, while being unable to pay for a lawyer to help. It’s cold comfort to that person who represented himself that he was convicted quickly. The objective is not just speedy criminal justice system but also a fair one.

 

Posted in Criminal Justice System, Defence Lawyers, Prosecutors, Trials Tagged with: ,

The Lies Come Before the Trial

Ontario’s Attorney General plans to implement a policy directing prosecutors to report to their local manager instances where a police officer has lied or was deliberately untruthful when testifying at a trial. That manager will then start a multi-stage notification and investigation process that would have made the bureaucrats in the Byzantine Empire proud.

Forget for a moment the absurdity of a police officer being investigated by his colleagues. Forget that independence and transparency are absent from this policy. The reality is that often prosecutor’s don’t have to wait until trial to see that a police officer has been lying.

From the moment a brief lands on the prosecutor’s desk there are many opportunities he or she can assess whether a police officer is lying.  When the Occurrence Report is filled with nonsensical language that defies common sense, diagnosis that is the first sign that we may be dealing with a lying police officer.  When the police officer’s notes are filled with boilerplate language that would apply to just about any similar case, unhealthy that is more evidence that the officer may be lying.  When the prosecutor is provided with information by defence counsel that the police are fabricating evidence, sickness there’s another clue. When multiple police officers investigating the same incident turn over their notebooks and they all use identical times and all have the same observations, in the same order, using the same descriptive words, that too is an opportunity to report that the officer or officers are lying.

Sometimes when a prosecutor concludes that the investigating officers are making things up and that no reasonable prospect of conviction exists a case is withdrawn negating the need for a trial. But why should that be the end?  At that point the damage has been done.  A person has been charged and oftentimes detained for a bail hearing.  Lawyers have been hired and time has been missed from work.  Not to mention the stigma of being charged with a criminal offence. Where is the deterrent to the lying police officer if there are no consequences to him and his career?

The fact is the liar’s calling card will often be found in the disclosure.  No need to wait until trial.

Posted in Attorney General, Criminal Justice System, Police, Prosecutors Tagged with: , , ,

It happens here too Conrad

The other day Conrad Black was interviewed by the BBC’s Jeremy Paxton and in a spirited defence of himself, Lord Black was adamant that his experience with the American criminal justice system would not have happened to him in either the UK or in Canada. He said, “in the first place, under British and Canadian rules none of this would stand up.” I’m not qualified to say whether or not he was right about the UK. I am however certain that his Lordship could just as easily have been on the receiving end of a ferocious prosecution and police tunnel vision in his home and native land.  I wouldn’t go so far as to call Canada’s criminal justice system a, “fraudulent, fascistic conveyor belt to the corrupt prison system,” as Black did when describing the American criminal justice system, but that’s just me. I suspect that Steven Truscott, David Milgaard, Thomas Sophonow, Guy Paul Morin and Donald Marshall, were he still alive, might disagree with me. And as for conveyor belt justice, I have no doubt that Canada’s overly incarcerated aboriginal males won’t be stepping forward anytime soon to vouch for the sanctity of Canadian justice — nor should they.

We need to disabuse ourselves of the notion that our justice system is better, purer and more virtuous than America’s. Fundamentally any criminal justice system is run by people and people get things wrong. We only need to read about Dr. Charles Smith to see the misery and hell that one person can unleash on the innocent all in the name of “doing what’s right”, “getting the bad guys” and making sure “justice is done”.

We like to think of ourselves in Canada as genteel and we trust and comfort ourselves in the solemnity and traditions of our institutions although with every passage of another omnibus bill and every proroguing of the legislature that trust erodes.  Many people who’ve never been inside a criminal courtroom in this country assume that behind those doors we lawyers sound like Rumpole of the Bailey as we sashay around the courtroom in flowing black robes — an air of serene gentility hanging in the air. But beyond the flowing robes, the bows and references to “my learned friend” is a machine that hums along making sure that our prisons our filled and and laws (some of which are ridiculous — see our misguided laws on marijuana prohibition) are enforced.

Our criminal courts are busting at the seams.  More laws to prosecute, too many accused, too few courtrooms and not enough funds to defend those accused. Not to mention a federal government whose view of justice begins and ends with doing whatever it takes to “make our streets safe”.

Sorry Lord Black, much of what happened to you there could could just as easily have happened to you here.

Posted in Criminal Justice System Tagged with: , ,