Saturday, February 27, 2010

This Is Old City Hall, Day 18

Another slew of drug pleas. The first accused can't afford a lawyer and has been denied legal aid. He has attended CLASP for legal assistance from Osgoode students -- but he's charged with possession for the purpose of trafficking, a straight indictable offence, so unlicenced students aren't allowed to represent him. So another guy with criminal charges gets to "wing it" in court. Why bother with criminal lawyers at all?1

The court recesses for twenty minutes after HALF AN HOUR, while counsel get their s**t together. I'm starting to recognize the regular OCH lawyers, just from sitting in hallways. In the foyer, I recognized defence lawyer Kim Schofield from her well-earned Toronto Star style write-up. Plus Mister Mayor; he's always here.

I think I should get some cards printed and put them in the lawyers' lounge. "NEED AN ARTICLING STUDENT FOR CHEAP?"

I bailed on plea court in favour of a high-profile bail hearing relating to the death of a cab driver two weeks ago. In that courtroom I had difficulty hearing: I had a chattering radiator on one side and an interpreter on the other. He (the interpreter, not the radiator) was addressing the parents of the accused. They weren't thrilled I was there. Evidently they didn't think that their son's travails should be treated as a learning opportunity for nosy law students.

Counsel thought I might be the press, which in a way I am. He called for a publication ban and was obliged. Thereafter I didn't record what I heard -- but it was juicy.

Remarks to an accused person (in another courtroom), made in my head
  • You knew when you got up this morning that you were going to court, so you put on your finest court apparel: black jeans, paired with an oversize black hoodie with silver pattern of interlocking American dollar bills in large denominations. I salute you.

Some ridiculous Criminal Code provisions
  • CC s. 163(1)(b) makes it illegal to possess crime comics.
  • CC s. 167 makes it illegal to produce or appear in an immoral theatrical performance.

1 Maybe because it's in the Charter?

Friday, February 19, 2010

This Is Old City Hall, Day 17

There's a poster on a pole outside Old City Hall advertising something called Zeitgeist Toronto:
"We have the opportunity to build a new civilization. Your bankers, lawyers and politicians -- GONE because they are NO LONGER RELEVANT."

On Day 17, I heard a lawyer put forward the argument that his client had had "no intention of smoking crack", but had put a small quantity of the drug in his pocket "just to be polite" to an acquaintance.

If that's not a repudiation of the Zeitgeist platform, I don't know what is. How could society function without such fearsome advocacy?

  • Justice G---- has a giant portrait of Lenin mounted in his chambers. No matter what your political stripe, that is magnificent. I told him as much.
  • I met a lovely gentleman while waiting outside a courtroom. He was there to make his thirty-second court appearance for the purpose of obtaining counsel and setting a date for resolution or trial. | EDIT, February 20: I don't mean his court appearance was thirty seconds long. I mean he had appeared without a lawyer and pushed the matter back on thirty-one prior occasions.
  • Inscrutable handwritten note of the day: "Poor old man and creepy longhair -- what are they doing here?"

This Is Old City Hall, Day 16

His Honour was feeling vital when I got to his chambers on the morning of Day 16. He had been for a morning swim at the Y and was expecting a shipment of olive oil from Greece. What judge wouldn't be stoked? Such was his generosity of spirit that when I produced a two-page research memo1 for him, he commended me for my initiative and pretended it wasn't at his request.

He told me that he had been speaking with Justice S-------- recently, and that they wanted to get the articling ball rolling for me. (It's gracious of both of them not to inquire as to why I haven't been able to move that ball on my own.) Like His Honour, His Honour didn't seem enthusiastic about my bright idea to take a year off, come what may.

I watched the direct- and cross-examination of an officer who conducted a motor vehicle stop that resulted in charges of fail-to-comply-recognizance and possession of crack cocaine. The stop took place in downtown Toronto's club district. My notes indicate puzzlement that the controlled substance was crack cocaine, not powder, but who am I to know what club kids are into these days? I was always more of a pub person.

Two different accounts of the incident emerged in the courtroom. Which story one subscribes to depends where one falls on the liberty/security, anarchy/order spectrum. According to the truncheon-swinging stormtroopers and their fascist cohorts, the incident was a matter of public safety wherein a person demonstrably dangerous to society was taken off the street and brought to justice after repeatedly abusing Her Majesty's patience and generosity. According to the glassy-eyed defence with its boundless tolerance for drug use and impaired driving, the incident was a series of escalating Charter violations culminating in a highly improper arrest. What is clear, however, is that both parties, police and accused, made some errors in judgment. Both views are noted below.

It was New Year's Eve, close to 3:00 a.m. The accused and his girlfriend were leaving Light Lounge at Richmond and Peter streets, en route to an after-hours club, when they were stopped by police for alleged reckless driving [accused mistake #1]. When the driver stepped out of his vehicle [accused mistake #2], the investigating officer noticed a cell phone on the front seat [accused mistake #3], in breach of the driver's recognizance.

(From the fact that the driver had been ordered not to possess a cell phone, we may deduce that he had some trafficking charges outstanding at the time he was pulled over. That makes the discovery of cocaine in his vehicle a good deal worse.)

After espying the cell phone, the officer lodged the driver in the back of his cruiser. At this point, it seems the officer either did or did not advise the driver accused of his right to counsel, per s. 10(b) of the Charter. The officer's duty notes do not reflect whether the caution was issued [officer mistake #1]. Immediately after so advising or not advising but before placing the accused under arrest, the officer entered and searched the vehicle [officer mistake #2]. The thought process behind this was as follows:
"One cell phone having been found, [the officer] was searching for other telecommunications devices."

Right, because most people get two when they're forbidden from having any.

In due course, the officer located a baggie of crack cocaine [accused mistake #4].

Returning to the cruiser, the officer addressed the accused, and either
(a) held up the baggie of crack and asked, "What's this?", thereby posing an incriminating question before advising the accused of his right to remain silent [officer mistake #3],


(b) held up the baggie and said "Look what I found!" or words of like effect, thereby -- according to defence counsel -- attempting to elicit an incriminating statement from the accused before advising him of his right to remain silent,

to which the accused replied, "I forgot that was in there" [accused mistake #5].

Then it gets a little nutty. Not satisfied with the incriminating admission he had just elicited, the officer made as if to arrest the passenger in the vehicle, the accused's girlfriend. Right before placing the handcuffs on her, the officer turned back to the accused and said, eyebrows raised, "Are you sure?" [officer mistake #4] -- to which the accused replied, "Whatever you find in there, [my girlfriend] had nothing to do with it. If you find anything it's mine" [accused mistake #6].

Clearly, some mistakes were made on both sides. His Honour took stock of them and released his decision that afternoon.

So what happened? The evidence was
(a) obtained in a manner that gravely violated some or all of sections 7, 8, 9 and 10(b) of the Charter, such that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute;

(b) obtained in a manner that violated some or all of sections 7, 8, 9 and 10(b) of the Charter, such that admission of the evidence would not bring the administration of justice into disrepute;


(c) not obtained in a manner that violated the Charter.

I leave it to you to decide which.

Terms that lawyers use too much
  • "on all fours with" -- who said this first? it sounds dirty
  • "dispositive" -- is that even a word? my Google Chrome spell check thinks not
  • "in terms of", "with respect to", "as far as", "by way of"; lawyers have had drilled into them the value of focusing the judge's attention; they use highly artificial segues to do so.
Apropos of nothing
  • Where are these after-hours clubs? Is it like Mad Men -- are there passwords? Is one permitted to attend if one does not have crack cocaine on one's person?
  • I sat at the counsel table throughout the evidence and Charter submissions. At one point the accused caught me drawing a cartoon of his lawyer holding a gun. He seemed to like it well enough.
  • History will record Day 16 of my Old City Hall tour of duty as the day that Google added something called "Buzz" to Gmail users' accounts. It aggregates every note, chat, blog, tweet, flerg and squib that I post to the ether, and those of all my Gmail-using friends as well. It makes my phone vibrate twice as much as usual. As soon as I hit PUBLISH POST on this bad boy, it will do so again.
  • Below: a misguided suburban youth takes a misguided stand, suggests drug trafficking as a viable alternative to a legal career

1 Would that I could bring such brevity to my blog posts. I omitted to tell His Honour that I drafted the memo between 7:30 and 9:00 that morning, having spent the previous night catching up on Lost. I had to skip showering and run to the courthouse to make it for 9:45. My suit smelled.

Thursday, February 18, 2010

This Is Old City Hall, Day 15

Little of note to report from Day 15: Preliminary hearing. 401 collision. The accused, a mid-40s blond lady, was driving on the 401 and struck a parked service vehicle -- specifically a "crash truck", the kind of truck with a plywood tryptich with blinking lights forming an arrow. The driver had been on the scene for thirty seconds before the impact. He heard no squealing or braking: one second he was sitting, the next he was flying. From his testimony, it seemed pretty clear that he intended to get some money out of the ordeal. Maybe he was even genuinely injured. Stranger things have happened.

  • I ran into a classmate leaving the court just as I was arriving, at 9:45. He thought I was late. Au contraire!
  • I wore all black-and-white to court today. Head to toe: shoes, suit, shirt, tie, jacket, bag, gloves, scarf, hat. I heard once that juries tend not to trust lawyers wearing anything other than black or dark blue -- they think they look cheap, shifty, like used car salesmen. I don't have any other colours anyway. I plan to have a black-and-blue wardrobe with maybe a tweed for the weekends.
  • The third floor of Old City Hall smells of human waste. Entia non sunt multiplicanda praeter necessitatem.

This Is Old City Hall, Day 14

I was at the courthouse at 9:00 a.m., but I managed to miss Justice B-----. So much for a good first impression. I got to Courtroom 128 at 10:15 and court was already in session. A man was pleading guilty to driving with 140 mg of alcohol per 100 mL of blood. He was issued the minimum sentence: a $600 fine, one-year driving suspension. Pretty lucky, all things considered. At the morning recess, His Honour bolted out the door and I had to jog behind him, yelling, before I could introduce myself. We are off to a rousing start.

His Honour is the sixth judge I've shadowed but the first to assign me some research. Counsel for a man accused of assault alleges that no information was produced at his client's first court appearance, which prompted a loss of jurisdiction requiring a new summons to be issued, and since no such process was forthcoming after ninety days the matter ought to be dismissed for want of prosecution ZZZZzzzzzzzzzzzzz ... Clearly there has been a mistake and His Honour was expecting a competent student. One of my classmates, perhaps.

But that was for later in the week. First and foremost His Honour was concerned that probation officers weren't taking seriously their obligations to enforce judicial orders for community service. The accused before him that morning was ordered to perform 150 hours of community service. In 15 months, he had finished a mere 27 hours. The man said he met his probation officer each month and insisted that he would soon take a month off work and plough through the whole thing at once.

As someone who frequently procrastinates and devises ludicrous, quixotic timelines -- this blog is proof positive of that -- I understand the man's impulse. But how was he expecting to feed his family for that month? In the 15 months, did he put any money away, make a nest-egg to tide himself over? Anyway, he said he worked two to three days a week. Why does he think he needs time off? His Honour tightened up the conditions of probation and that was that.

The rest of the day was devoted to another drunk driving trial. The accused was self-represented. He attempted to cross-examine the arresting officer himself. His hands were shaking while he did it. He didn't ask questions so much as allege that his actions subsequent to the traffic stop were reasonable and not indicative of intoxication, that the officer didn't administer the breathalyzer properly, that he didn't hear the officer inform him of his rights. His Honour, trying to be as accommodating as possible, turned to the officer after each accusation and said, "I'm going to take that as a question."

The officer was pretty unflappable. Rightfully so: he knew that it was his word against that of the accused, and in that circumstance the police officer is usually the winner, notwithstanding the court's claim to the contrary. He was polite. He was patient and gentle when addressing the accused's "questions", even when repeating his direct testimony or simply saying, "That's not what happened. You're mistaken. I disagree."

Guess which way that trial went.

Denying a person counsel in a criminal court effectively guarantees they will be found guilty in a complex matter like an over-80 case. But there will be more self-represented accused until legal aid loosens the purse strings, and that can't happen until they have a lot more funding and support. And that can't happen until something really tragic prompts a real appetite for reform. So don't drink and drive. And if you don't have any money, maybe just stay off the road altogether, unless your secret ambition is to have a public inquiry named after you.

  • During a brief recess, I spied the lawyer I think of as Methuselah, sitting with a client. It occurs to me I should approach him to article. He could probably use the help.
  • On the Kafkaesque layout of the court: in the basement, administrative offices are denoted by letters; on the third floor, letters mean specialized courtrooms; everywhere else, courtrooms use numbers, and they all start with 1, no matter what floor you're on. Whose bright idea was this!
  • What's the connection between law enforcement and baldness? Don't tell me there isn't one.

This Is Old City Hall, Day 13

Day Twelve was a wash: His Honour was called away and I was left in a conference room to finish preparations for my seminar the following day. The seminar was abominable and in retrospect, my time would have been put to better use by running at top speed in the opposite direction from Osgoode Hall, but -- hindsight, what can you do!

The following Monday I attended mental health court with Justice S--------. My notes from that day begin as follows: "It smells like cheese in here." And from that promising beginning, the day only improved.

I don't wish to make light of mental illness. I believe that the mental health court performs an invaluable service and that its officers deserve notice and commendation. But as they will be first to tell you, a lot of funny stuff happens in there.

Consider Ms. X. His Honour informed me that Ms. X was a fixture of the court, and that her court appearances had taken on a critical significance in her life. (Apparently this is not uncommon.) She was doing legal research on her own behalf, and it showed, much to the chagrin of her lawyer. Mrs. X proved the adage that a little bit of knowledge can be a dangerous thing. Also a hilarious thing.

When her name was called, Ms. X was in the body of the court. She drawled "ho-o-o-ld on a moment" as she hauled herself up; "you can hold the matter down for a moment while I get something out of my knapsack." Just like that -- languorous, like a veteran clerk that everybody's scared of.

Her lawyer wanted to put the matter over a week or so. Ms. X gave her about four seconds to speak -- "I think if we could come back on the 22nd" -- and then she went off. I recorded her as accurately as I could manage:

"ONCE AGAIN, you don’t have my interest in mind. I’m entitled to an election, OKAY? So I’m not obligated to have a preliminary inquiry, OKAY?1 Once again I’m the only one here with any brains. [Addressing her lawyer] You don’t know how to use your brains because your father lives in a city. [Addressing duty counsel, His Honour and the court staff] Your father lives in a city, and your father lives in a city, and your father lives in a city. And on the day you retire your father will be in a city. None of you could do what I do in custody. I was at Vanier and Algonquin.2 None of you can do what I do because you don’t know how to use your brains."

Everyone remained silent until this tirade ran out of gas, and then her lawyer resumed. "If we could come back on the 22nd, please." The court was agreeable.

I wasn't completely unprepared for the mental health courtroom. It was depicted on the short-lived CBC series This Is Wonderland, which I have mentioned before. (TIW took place at Old City Hall and didn't spare the details of life in the bowels of the Toronto justice system. A week into my placement, I hunted down the DVDs of the first season.) One early episode featured a mentally-ill homeless man who was campaigning for a municipal government seat. The day after I watched that episode, I saw the real deal. When I arrived at the front doors of the courthouse in the morning, a crowd outside was listening to a homeless man whom I had seen often. He was announcing his candidacy in the upcoming Toronto mayoral election. Not only that -- he was maligning his opponents George Smitherman, Rocco Rossi and Adam Giambrone (obviously this was way back in early February). I see him often, as his campaign headquarters is on the sidewalk at the corner of Bay and Queen. I call him Mister Mayor and I wish him the wildest success.

But back to the real mental health court: midway through my morning in the cheese-smelling courtroom, a group of high school boys entered the courtroom. They were about five minutes too late to get wind of some sordid charges involving a man who stood in the window of his house, naked, waving his genitalia at children passing by on their way to school. I thought it was fortunate that they didn't hear this, not because it would have affronted their delicate sensibilities, but because they would have found it hysterical.

Inexplicably, the young men were accompanied by Mister Mayor. He sat with them for five minutes, then stood up and broke wind. It was audible from my seat on the opposite side of courtroom. He took the opportunity to address His Honour. "How ya doin, Judge S--------?" His Honour greeted him in kind, by name. Evidently Mister Mayor too is a fixture of this court. "God bless you," the mayor continues. "Take care of these young kids; they're just learning. God bless." He took his leave. Outside the courtroom he could be heard to announce, "I just farted in the courtroom!" The high school boys lost it. They will never forget this field trip.

During the morning recess I made friends with a fellow observer from the body of the court. She had a matter coming up -- that is to say, she was one of the accused. I showed her how to get to Coffee Court, the snack bar on the other side of the courthouse. En route she told me that she had had a bench warrant issued against her because had been confused and had attended at the wrong facility on the right day.

My new friend told me that the government wants to take away judges' decision-making powers, so that all they can do is sit on the bench and go to sleep. This is (more or less) my understanding of the government's intentions too. She went on to opine that this was unfair to those who couldn't afford to retain experienced counsel. Other people, not her, of course -- she was rich. She laughed when she told me this. I chose to believe it despite the context.


  • After observing several matters in mental health court, I felt comfortable noting a pattern that, with some minor modifications, could be applied to every matter that appeared there:

mental illness → family estrangement → poverty → alcohol → crime → arrest → cat death → guilty plea for diversion and treatment

  • From my notes: one accused party was "way too good-looking to be [mentally ill]". Nothing else is stated.
1 I don’t know how she stumbled upon the concept of accused election, but she was right: she’s not obligated to have a preliminary inquiry. Unfortunately, the fruits of her research must have omitted the distinction between summary and indictable offences—she wasn’t getting an election. Moreover, she wasn’t going to trial, so the matter was pretty moot.
2 It’s a short trip from academia to the nut hatch. | EDIT, February 19: It didn't occur to me when the accused mentioned Vanier that she probably meant the women's prison rather than the post-secondary institution. I'm pretty sure she really did go to Algonquin College though.

New York, New York

"since I made it here, I can make it anywhere"

New York is entitled to self-aggrandizement, I suppose, but a line should be drawn. Admit it, HOV: all the makin'-it infrastructure is split between New York and LA! That's like saying being born a block from Broadway is a disadvantage to your theater career.

Make it from Cheyenne, Wyoming and I'll be impressed.

Sunday, February 14, 2010

Saturday, February 13, 2010

This Is Old City Hall, Day 11

On the morning of Day 11 I sat in on Old City Hall's Drug Treatment Court panel. Justice B------ gave me materials to read the night before, to educate me about the panel's role in justice, health and rehabilitation.

The panel is comprised of ten people, including His Honour and representatives from the offices of crown, defence, duty counsel, probation, court administration and CAMH. Like in pretrial negotiations, the panel considers the facts of an individual's case, his background, and how his treatment is going. Then it negotiates what is to be done -- whether treatment is to continue or whether additional conditions are called for. Like in pretrial negotiations, the accused is not permitted to attend the panel.

Completion of a course of treatment is called "graduation". Relapse delays a participant's graduation, but relapse is anticipated and he doesn't flunk out. Good faith trumps almost everything here. For instance, it seems like just about every participant fails to show up for court, at the beginning. Some hand-holding is required. I don't think Justice K----- would have the patience to administer this kind of justice. But then, the approaches of Justice B------ and Justice K----- are like night and day.

According to the first file on the docket, the accused omitted to mention to the panel that he had separate, non-drug-related charges before the courts. He also failed to honour some of the conditions of his bail. True to the spirit and principles of the program, the panel doesn't let failure (relapse, toxic urinalysis, re-arrest) derail their work or deter them in the pursuit of their objectives. His Honour lets the first accused proceed with his program of treatment on the basis of his statement of desire and notwithstanding his actions to the contrary.

They're a happy group, the panel. Not raucous, but chatty. They remind me of missionaries, doing God's work, happy in the righteousness of their cause. One doesn't expect to meet optimists in their line of work, and it's heartening. I want to ask them whether the program has made them more or less cynical but I'm afraid to do so.

After observing for an hour, it's easy to detect the currents running through the room: sanction vs. rehabilitation, denunciation for past misbehaviour vs. encouragement for future efforts. The currents run along the expected channels. Duty counsel, defence and social workers sit on one side of the table. The crowns (provincial and federal are both here) and the probation officer sit on the other side. I wonder how many times the panel convened before that started to happen.

The crowns are pretty grim, as befits their role on the panel as representatives of the state (and tangentially the public, who arguably have an interest in seeing these offenders kept off the streets. Arguably. And I'm not arguing it).

No participant is just a drug addict. They're addicts and burglars, addicts with histories of abuse, addicts with "immigration problems" (i.e. the problem that Immigration wants them removed -- what other problem could there be?). Violent offenders are not eligible for the treatment program.

It's like detention. Some of the accused are required to write essays to His Honour asking to be admitted or re-admitted to the program, some, like A, His Honour knows well.

A wrote a two-page letter to Judge B------, committing himself to recovery. Eighteen months ago, A was a college graduate, winner of the dean's medal, and gainfully employed. Then A got laid off from his job, got addicted to crystal meth, and went off the rails. In his letter, A declares that by 2015, he will be back to his old self, back to the kind of man he was eighteen months ago. He recognizes that it is going to take five years to undo the damage he has inflicted on himself in a year and a half. That gives one pause.

I wonder how many people on the list are high at the very moment the panel is in session. The number is not zero. I feel guilty for wondering.

The panel finishes all the names just in time for lunch. Drug Treatment Court itself convenes in the afternoon, where faces are put to the names on the morning list. Everyone from the morning panel is present in the afternoon: crowns, probation officer, CAMH workers.

It's nothing like court. There is none of the tension of the adversarial system. A court worker calls a name. The party stands and addresses the court. His Honour peers over the top of his glasses and asks, "Any drug use to tell me about?" When the recovering addict answers "No", the other recovering addicts in the body of the court applaud.

Participants submit to frequent urinalysis, so His Honour knows the answer before he asks the question. Those who have been confirmed clean are called first.

Participants tell the court how they are staying clean. The answers are fairly uniform: volunteering, working, going to meetings, staying busy. One woman admits that she's having trouble staying busy enough: "I can only clean my house so much."

Watching the procession of recovering addicts/offenders put me in mind of the Spectrum of Human Achievement. I'm having a hard time explaining what I mean by that. When I try to elaborate on the idea, the words seem patronizing. Suffice it to say, irrespective of whatever charges the participants might be facing, the strength of will required to conquer a serious addiction and change one's life must be very great.

This Is Old City Hall, Day 10

Below: a cautionary tale [the first of two] about representing yourself in criminal proceedings.

Before Justice B------'s court convened, he showed me an application for an order for disclosure, submitted to His Honour's court by a self-represented accused. The accused was requesting transcripts from two ex parte hearings:
(a) a hearing during which a justice of the peace issued a search warrant for the home of the accused, and

(b) a hearing during which an information was laid alleging that the accused had threatened someone with death.

Without giving anything away, it appears that some letters of a grave nature were suspected to have originated within the home targeted for search, and that evidence of the letters might be gleaned from the computer, printer and stationery of the accused.

To the credit of the accused, the application was cogent, more or less, and appeared to satisfy the statutory requirements for court applications. It was not, however, effective. Someone with even a little legal experience (and who has less than I do?) would conclude from looking at it that the writer didn't know enough to know how little she knew. Instead of demanding transcripts likely to reveal little, wouldn't obtaining the search warrant itself be more likely to bear fruit? I'm sure a lawyer could have expedited the process or at least pointed the accused in the right direction, and I wondered why some officer of the court, the crown or His Honour maybe, hadn't done so. I found out when court began.

There were three co-accused, all women ranging from 60 to probably 75. I say 75 because my grandmother is 75, and these ladies reminded me of my grandmother: sharp-tongued, suspicious of the world around them and mad as hell. This was far from their first court appearance, and if ever they had elicited any sympathy from the court, the old buzzards had exhausted it at this point. They cut off crown and judge with self-righteous tirades peppered with legalese that they picked up god knows where: "abuse of process" -- no mild accusation -- , "chapter one [sic] of the Charter", "timely disclosure", etc. They accused the crown of malicious prosecution, delay and obstruction. They accused the investigating officer of targeting them to indulge a personal vendetta. They claimed that the police used undue force in the execution of the search warrant. One went so far as to suggest that the charges against them were not so severe that the police were entitled to use force. The charges, let's recap, were criminal harassment and uttering threats.

His Honour is a more patient man than I. He let them rattle on and on, never interrupting while they buried themselves with comments like the one above. When the hurricane had blown itself out, His Honour urged the crown to move the prosecution along. The crown did not look thrilled to comply.

Let this be a lesson to you: no good can come of (i) trying to represent yourself in criminal proceedings, or (ii) teaching your grandmother computers.

Wednesday, February 10, 2010

This Is Old City Hall, Day 9

Monday, February 1st begins with a judicial pre-trial. His Honour, Justice B------ has some preliminary remarks before the negotiations can begin. Counsel are not permitted to relate any of the facts, whether or not they are in issue. They are to present their positions proactively. They are not to say what cannot be done or what their clients will not accept, because this would be unproductive. I feel like an anthropologist: does His Honour always kick off JPTs this way, or is it because I'm here? Have I changed the gorillas' habitat?

Well-intentioned though it might be, His Honour's request that counsel not refer to the facts goes out the window pretty early in the discussion. It's hard to present your case as strong and your opponent's case as weak if all you can say is "my case is strong and my opponent's case is weak". The facts are referred to obliquely and a picture of the case begins to materialize.

It's another dispute between house-mates in a rooming house. Toronto rooming houses are hard places. Is it the same pair from last week, fighting about the TV remote? No -- in this case somebody got stabbed in the chest.

It seems the accused might have a legitimate claim of self-defence. The complainant was a "problem tenant". He is alleged to have threatened the accused, then made good on the threats by kicking down the accused's bedroom door, weapon in hand. Defence counsel refers to the weapon as a "morning star". The investigating officer, seeing my eyes widen and my head jerk up at the back of the room, clarifies that it wasn't a medieval spiked club but a heavy, knotted rope.

There's a surveillance video that will reveal the complainant kicking down the door. Unfortunately, it takes a year for police to search a surveillance computer for footage, even when they know the relevant time frame. If it's a homicide, the tape gets priority and jumps the queue -- so if the victim had succumbed to his wounds, the accused might have been able to get out quicker.

The crown makes an offer. Defence counsel rejects it in light of the prospect of a viable defence. This violates His Honour's rules of JPT decorum. He tells defence counsel, "That's not helpful." But what is the man supposed to do, string them along? The pretrial ends without a resolution.

It's followed by two more pretrials: a stabbing at a bar at Keele and Wilson (enough said), and an armed robbery. In the latter, the female accused (currently pregnant! classy) allegedly lured people to the public washroom at the Nathan Phillips Square skating rink -- right next door to the courthouse! -- where she and her friends swarmed and robbed them.

... I guess I'm done skating at Nathan Phillips Square this year.

  • Is that a French collar, Your Honour? Are you aware that the French collar has been shorthand for 'douchebag' since 1987?
  • What's a peace bond? The crown is opposed to it.
  • "Provocation is not the same as self-defence, Your Honour." Good point. Counsel isn't going to let his defence slip away because His Honour mischaracterizes it.
  • Dear God, MF DOOM shouldn't try to sing.
  • Wikipedia says that a morning star is also known as a "holy water sprinkler". Thanks, Wikipedia, that's the most ridiculous thing I've ever heard!
Some handwritten notes to myself
  • "When was the last time I did a good job of anything?"
  • [Regarding a fourth pretrial not worth relating:] "This lawyer is making some bizarre requests. The officer wants to tell him to go fuck himself. ... The lawyer thinks that because the officer's notes refer to another matter, [the officer] might have been confused. ... This is a Hail Mary defence. ... This guy sucks. ... The Crown is really sweaty. ... K----- J. wouldn't stand for this bullshit."

Thursday, February 4, 2010


Taking a break from preparing my wiretap presentation, watching This Is Wonderland. The episode features a character accused of sexual assault. The alleged rapist's name is Alan Gold. I'd peg him at second or third most famous criminal lawyer in Toronto, at least among students and practitioners if not to the public at large. I don't see how this could be a coincidence.

Maybe it's gentle ribbing from a friend or admirer?

Stringer Bell, Caught on the Wire

Three Days Behind and Counting

My Old City Hall adventures continued this week, but further updates will have to wait: I have to prepare a seminar presentation on wiretaps for tomorrow and then I'm going to Ottawa to skate on the canal (and do other things, but I'm particularly excited about that one).

It's too bad I won't be there tomorrow, because the guy who pushed Noel Gallagher at the Virgin Festival in the fall is getting sentenced. That would be amusing to see for everyone except the accused, his wife and their children. I think the judge will give him a dressing-down about drunken mischief and then make him do some community service or something.

Below: the case for the Crown.