There is an art to the pre-trial. Defence counsel should have a roadmap of where they are going before they embark on the process.
My old law school professor Alan Mewett taught us that 90 per cent of cases are settled. This surprised me as a student, as we all thought we were going to have stables of innocent clients and that we would be girding our loins for court.
But today the reality is probably that more than 90 per cent of cases are settled. We have pre-charge diversion, post-charge diversion, common law peace bonds, s. 810 peace bonds, and we once even had a dispute resolution centre in Ottawa, until the money ran out.
When reviewing disclosure in such cases, there are really three things to think about. The first is whether the Crown can prove the case against your client, right now. If not, unless you are expecting things to look much worse in the future, do not set a pre-trial, or the Crown will fill in the holes.
The second thing is to determine what is missing from the disclosure - are you ready to go to a pre-trial? Do you need that 911 call or the photographs?
The third matter is determining what is the best low-ball offer that can reasonably be made in the best interests of your client. Prosecution experience can be helpful here.
Of course, you will want to have obtained proper instructions. However, even the newbie defence counsel may be familiar with having no instructions at all, or wildly inappropriate ones that cannot be disclosed. In that case, the classic position to take at the pre-trial is to say that you have either “no instructions” or “incomplete instructions,” but that you are prepared to recommend a certain offer to your client.
Rule 4.01(8) of the Rules of Professional Conduct says that you may “discuss with the prosecutor the possible disposition of the case, unless the client instructs otherwise.” This is not the same as entering into an agreement with the prosecutor (Rule 4.01(9)).
You may even say to the Crown that you will not recommend his offer to your client, but that you will merely convey it to him. Even a seemingly unreasonable offer should be conveyed to the client, who may have a better idea of the jeopardy he is in than you do.
Be prepared at the pre-trial to suggest which charges or included offences your client might consider pleading to and what sentence or range of sentence you are seeking. Make the first offer, as the person making the first offer determines to a large extent the scope of the negotiations. Do not meet with the Crown to obtain disclosure, because the Crown will be tempted to make an offer; you have no instructions and you are disadvantaged by not having read the Crown brief.
There are two types of pre-trials, and it is helpful to give serious consideration to which type would advance your client’s interests more. You will be able to obtain a one-on-one counsel pre-trial quite quickly. A judicial pre-trial may take too long to arrange, especially if your client is in custody.
Do you want the investigator to be present? Do you want him to be absent, perhaps because you will allege that he breached your client’s rights? What is the local practice? In Ottawa, it was once routine for the detectives to attend; now they generally must be requested. Do you need to run your proposed settlement before a judge to see if your plea will fly?
Consider, too, what materials you would like to present, and be ready with copies for everyone. Confirm information by contacting the authors of all of the letters or reports, and if you have not done so, say so.
I attended a domestic assault pre-trial involving two medical doctors. I represented the complainant, and her husband was represented by a senior counsel who had a tabbed brief ready with all of his client’s many character references, accomplishments, and future academic plans. It was very persuasive. The matter settled with a peace bond. It really helps to be prepared.
Rosalind Conway practises criminal law in Ottawa. She can be reached at firstname.lastname@example.org