R. v. H.S. (Initials changed to protect the innocent)

By Robert Richardson, Associate

Mr. S. was acquitted today of the charges of Sexual Assault and Uttering a Threat to Cause Bodily Harm, and his charge of Breach of Probation was stayed. The question that lingers, as it often does; “Was justice done?” I do not mean, to question his guilt, or innocence – he was found not guilty and I believe the Jury came to the right decision – I do however question the process used to dispel these charges against him. Mr. S. spent eight months in jail awaiting trial and was released today from the court room, with not so much as a we're sorry from the Crown. I brought him a coffee and left him waiting in his borrowed clothes and his jail shoes, with no socks, for his one friend in the world who would take him back to the jail to pick up his meagre effects. He was released after eight months with not so much as a token for the bus, or a few dollars for a meal. Unfortunately, this is not the first time that Mr. S. has found himself released from the system, back to the streets. 

While Mr. S. has a long criminal record, this was perhaps the first time he has taken the charges against him to trial. During my time at Derstine Penman, I have dealt with Mr. S. on at least 3 different sets of charges. I can say without question, that he had a defence to all of them and for at least one, in my mind, was clearly not guilty. He also had advocates behind him, prepared to take the matter to trial, and encouraging him to do so. So why did he plead to those charges? On one set he was in a diversion programme – after which the charges would be withdrawn – on the others he chose to plead guilty. I can not explain why all that do so, choose to plead guilty, but have seen the effects of multiple guilty pleas first hand. Mr. S. is one such example. His long criminal record means little chance of bail pending trial. A guilty plea will often mean a short sentence and he will be out before a trial date can even be set. In one case the continued contact with the courts through the diversion programme grew tiresome and another charge seemed less trouble, he pled to the charge on his own, without the assistance of his counsel.

Mr. S. is not unique in his desire to plead guilty. For him, as with many, the decision is one of convenience. Unreasonable bail positions and diversion programmes which mean ongoing contact with the court over extended periods of time, have meant that the guilty plea is more desirable than fighting the charge and taking the matter to trial – even when a trial is likely to end in an acquittal. Had the crown in Mr. S. recent case been more reasonable, there is every likelihood that these charges too, would have ended in a guilty plea. However, it took eight months for the courts to bring the matter to trial and Mr. S. was facing a potential penitentiary sentence, should he have lost, or decided to plea. The cost of pleading this time was too great, and Mr. S. allowed us to do our job.

Our job, however, is getting harder. Crowns continue to use the denial of bail as an incentive for accused persons to plead guilty, or fight for restrictive release conditions, which are all but guaranteed to be breached by those so bound. A person charged with an offence is presumed to be innocent until proven guilty by a court of law. But one has to question a system which will release the guilty on minimal conditions, if any at all, but keep the innocent jailed pending trial. Many of those jailed, like Mr. S., are the forgotten or unwanted. Their charges are usually small and they have few friends and family available to act as surety if released. While the legal aid programme continues to cover them, block fees paid by the programme means that counsel will go unpaid for much of the time put into a file if a bail hearing is run, and the matter proceeds to trial. The incentive for the accused becomes plead guilty, serve a couple of weeks, get out of jail. The incentive for the lawyer becomes; meet your client plead your client, collect your block fee. Avoid the trial, because trials take time, and we won't get paid for the time we spend.

The one spanner in the works, are the firms like Derstine Penman and a number of dedicated defence, trial lawyers, who continue to accept legal aid. They do so under the assumption that the matter will go to trial, knowing that there fees will be cut, but also supporting and providing a defence (sometimes the first defence ever) for the H. S.s of this world. I am proud to be working at DP and to be a part of the tradition of advocates standing up for the rights of the downtrodden. I salute all those before me, and encourage all new lawyers to truly work for justice.