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Defence counsel part of ‘weak link’ in Justice on Target: police

|Written By Michael McKiernan

While a prosecutor recently raised the prospect of negotiating lighter sentences due to pressure to speed cases up, Crown leniency is the least of the province’s worries with Justice on Target, according to experts involved with the project.

‘Most lawyers I know are busy and have better things to do with their time than to have repeated and unnecessary appearances in court,’ says Joseph Di Luca.

A recent case in London, Ont., the location of one of the project’s three initial action sites, sparked concerns that Justice on Target is encouraging the Crown to go easy on defendants to clear cases out of a clogged system.

After Justice Wayne Rabley of the Ontario Court of Justice voiced displeasure about what he saw as a lenient plea deal put together by the Crown and defence for a man who admitted to possessing stolen property, prosecutor Peter Kierluk suggested the pressure to move cases through the system under a provincial initiative could have been a factor in the arrangement, according to the London Free Press.

Kierluk wouldn’t comment when reached by Law Times.

Daniel Parkinson, chief of police in Cornwall, Ont., and a member of the project’s expert advisory panel, acknowledges that leniency can occur in the system but says that was a factor long before Justice on Target kicked in.

“I know it happens and has happened in the past, just to clear the books, but that’s not one of the principles behind Justice on Target. Leniency by a Crown could be the byproduct of some self-imposed pressure, but I’ve never heard of pressure being directed towards Crowns in that manner.”

“Justice on Target has plenty of problems, but I wouldn’t say leniency is one of them,” says Anthony Doob, a University of Toronto criminologist and another member of the expert panel.

While Doob says the justice system has independence built into it for good reasons, he notes it makes the attorney general’s job difficult when it comes to trying to bring everyone into line under one project. “He can’t tell a judge what to do.

That’s not a good start. The courts are not a bureaucracy. They don’t all report to one person. There’s a lot of independent actors with the ability to make their own decisions, and if they wish, they can just ignore Justice on Target.”

The program began in June 2008 with a target of a 30-per-cent reduction in the average number of days and court appearances needed to complete a criminal case by June 2012. Using 2007 numbers as the baseline, that would cut the average number of days to deal with a case to 144 from 205.

At the same time, the average number of appearances would fall to 6.4 from 9.2.

Halfway through the project, Parkinson sounds underwhelmed by the progress so far.

“There’s been a modicum of success,” he says.

In fact, the numbers released so far up to the end of 2009 back up his lukewarm response.

In the three original action sites where sustained efforts took place to implement the new strategies, the results have been mixed.

The courthouse in North York, for example, has seen a 13-per-cent decrease in the number of days per case and an 11-per-cent fall in the average number of court appearances.

But in London, the most recent numbers are virtually identical to the 2007 figures, while the court in Newmarket, Ont., has actually seen a four-per-cent rise in the number of days along with a modest decrease in appearances.

“If there’s a weak link in the process, it’s because you don’t have leverage with the defence bar,” Parkinson says. “If we’re not all sitting down together playing nicely, things can break down very easily.

If they want to ride it out for six or seven appearances, and there’s some formula that compensates them for the number of appearances they make, then there’s very little in our favour to have them step up to the plate and do what’s right at the earliest opportunity.”

But Joseph Di Luca, the Criminal Lawyers’ Association representative on the advisory panel, says clients’ interests always have to come first for defence lawyers.

“At the end of the day, members of the defence bar have clients who need to be properly and ethically represented, irrespective of how many court appearances it takes.”

Still, he doesn’t believe defence lawyers deliberately draw cases out when they could settle earlier. “Most lawyers I know are busy and have better things to do with their time than to have repeated and unnecessary appearances in court,” he says.

In a statement, Ministry of the Attorney General spokeswoman Jennifer Bell said the results have stopped the upward trend in delays. “Initial sites are completing more of the simple cases before or at the sixth appearance.

While there is more work to be done, the collaborative efforts of justice participants across the province are already bringing about positive sustainable changes.”

At the same time, Doob warns that a time lag in the statistics could mask some progress since they only count completed matters. Nevertheless, he believes the province faces a tough task in meeting its targets. “It’s a long haul,” he says.

“You’re turning around a big ship here, and the interests of the various groups involved are not necessarily the same. It’s easy to set targets; it’s a lot harder to follow through on them.”

The major focus of the program is to divert minor and first-time offenders out of the courts and bring Crowns into the process much earlier. That means they can advise police on whether a charge will stick before the accused appears in court or, in some cases, before authorities charge someone.

While London police deputy chief Ian Peer says the new approach can create the impression of a softer approach to crime, it in fact has no effect on the final outcome. “In the past, it could get put off two or three times in court, but you would come to the same decision that we are now getting at the start,” Peer says.

“We don’t always agree with the Crown about how particular cases ought to be dealt with, but that’s healthy. In the end, it’s their job to prosecute, not ours.”

For his part, Parkinson acknowledges that police don’t always fulfil their duties to lay quality charges and provide timely disclosure. He credits Justice on Target for giving all of the players in the justice system insight into how their actions affect everyone else involved while increasing accountability on all sides.

“The real success is that nobody’s given up on it yet,” he says. “This isn’t a project; it’s the new way of doing business. These are desperate times requiring desperate measures.”

  • Weak Link Lawyer

    “If there’s a weak link in the process, it’s because you don’t have leverage with the defence bar,” Parkinson says.

    Pointing an accusatory finger at others means the other fingers are pointing at oneself. As an afterthough in the article, Parkinson later "acknowledges that police don’t always fulfill their duties to lay quality charges and provide timely disclosure."

    Ducking your own shortcomings while wistfully contemplating the application of leverage on lawyers is called bullying.

    Sir, your house is in disorder! That should be front and centre, not merely acknowledged as an afterthought.

    I respectfully suggest to "man up" and accept responsibility for police negligence which directly contributes to Justice OFF Target.
  • Justice \"OFF\" Target

    B. McLachlin
    Well said, my dear Yossi!

    All of us may sometimes fail at our tasks, but to be a failure begins by blaming others.

    I ask of Shakespeare, If we were to kill the lawyers, who will we blame - the judges?
  • lawyer

    I would like to say I am surprised by the police chief's unprofessional hostility towards the defence bar and complete ignorance of the greater justice system, but obviously I am not. Its clear that Chief Parkinson believes that "the right thing", to use his words, would be to enter immediate guilty pleas to every charge for every client without even first reviewing disclosure materials. In other words, if the police charged someone, they are guilty, end of story. Such simple-minded stupidity is unfortunately not uncommon among law enforcement types.
  • chief\'s hostility

    or could it be that he believes that 99 per cent of those charged are guilty as Alan Dersowitz says! In which case it is not stupidity but a heightened sense of things that breeds frustration at the outcome - two realities are intension here - one hwat the cops face out on the streets and the other, the resolutions in court.
  • James
    If you are going to quote someone, you should know how to spell their name is "Dershowitz".
  • Game Player Lawyer

    The correct quote from The Best Defense by Alan Dessowitz, the first of his 13 Rules of the Justice Game: "Almost all criminal defendants are, in fact, guilty."

    This "rule" should be read in context with the rest of his rules -

    Rule III: "It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution."

    Rule IV: "Almost all police lie about whether they violated the Constitution in order to convict guilty defendants."

    Rule V: "All prosecutors, judges, and defense attorneys are aware of Rule IV."

    Rule VI: "Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants."

    Rule VII: "All judges are aware of Rule VI."

    Rule VIII: "Most trial judges pretend to believe police officers who they know are lying."

    Rule IX: "All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the the lying police officers."

    Rule X: "Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth."

    Rule XI: "Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime)."

    Rule XII: "Rule XI does not apply to members of organized crime, drug dealers, career criminals, or potential informers."

    And the Grand Finale - Rule XIII: "Nobody really wants justice."

    The Justice Game was never meant to be played "sitting down together playing nicely".
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