Response to Justice Moldaver’s Remarks to the Justice Summit – 2006

What follows is intended to address remarks made to the Summit Justice by the Honourable Justice Michael Moldaver on November 15, 2006.

The position of Justice Moldaver in his speech is that the criminal justice system is at a crossroads. He is of the opinion that both complexity and prolixity plague the very existence of the criminal justice system.

The position of Justice Moldaver is that there is defence counsel who trivialize and demean the Charter and use the Charter to delay and obstruct justice. He claims that there are counsel who clog the courts by bringing baseless Charter applications. Justice Moldaver, in his remark’s states directly that the antics of this same counsel are deriving other persons of their day in court in a timely way. Justice Moldaver as well suggested these same counsels are “pilfering precious legal aid funds at the expense of needy litigations with legitimate causes”. He suggests that some counsel abuse the system and make a mockery of it.

No one would disagree that any counsel who would act in the way suggested above by Justice Moldaver is acting contrary to their oath as the barrister and contrary to the administration of justice. However, the problem with these comments is that they are made without factual underpinnings, anecdotal or real evidence. They are, what I would submit, baseless allegations without merit.

Just to be clear, Justice Moldaver disagreed with the notion that the prolixity of some counsel is simply a product of “poor judgment by many criminal defence counsels on what Charter issues are worth litigating, as well as a plodding and prolix approach by some in advancing these claims”, as was suggested by an assistant professor at Osgood Hall Law School. Justice Moldaver’s position is that the cause of the problems is not poor judgment but rather intentional actions by criminal defence counsel in an effort to abuse the criminal justice system, steal legal aid funds, and brings baseless applications before the courts.

What does Justice Moldaver rely on to support his position that some counsel are engaging in the despicable acts that he alleges? Justice Moldaver uses what he says was a statement by a distinguished member of the defence bar to him in response to an address at the Criminal Lawyers Association when this lawyer purportedly said, “Judge, you only have a problem with long criminal trails because you are on a fixed salary”.

Assuming for the moment that that lawyer was serious when he made the statement to Justice Moldaver, that certainly is not the position of the vast and overwhelming majority of criminal defence counsel. Justice Moldaver suggests the message is that when making $600/hour or $6000/day in court, or some amount less, one would want the trials to go on forever. To suggest that lawyers want to trials to go on in order to fleece their clients and the system and essentially commit fraud on either their clients or the state is a serious condemnation and an inaccurate one in my observation at the bar in the last 25 years.

Justice Moldaver’s reasoning is not only flawed but paints with a broad brush and condemns all for the acts of very few. There may be a “bad apple” in every bunch but the same could be said o the police or any other large group of human beings. If Justice Moldaver, or anyone else is aware of such unprofessional conduct, the place for complaints is the Law Society of Upper Canada which has the power to discipline its members. Further, if he or anyone else feels that some lawyers are “pilfering” legal aid funds the complaint should go to the police.

I would respectfully submit that the judges statements and consequent condemnation of the defence bar at large is baseless. Most criminal lawyers quote fees and charge fees on a block fee basis. It would be nonsensical from a business perspective and would be counter-intuitive to continue trials longer than required.

As well, the number of lawyers who are able to charge clients $600/hour and $6000/day are few and far between. Certainty, I wouldn’t think that Justice Moldaver would suggest that lawyers who had very busy practices and were able to charge such fees would act in such an unprofessional way. It is a serious and overreaching allegation of professional misconduct and is made without statistical, empirical or logical evidence.

Justice Moldaver goes on to utilize his speech as a rallying call for judges to regain control of the courtrooms which he feels have been ceded to litigations. I have not seen a judge lose control of the courtroom to the litigations. I have never heard of such a situation even anecdotally. This rally cry to regain control and to blame defence counsel for the prolixity and clogging of the system is a house of cards without foundation.

However, Justice Moldaver does make many accurate points with respect to the complexity of the substantive issues that have developed in criminal law. The judges have interpreted the law.

The judges have written the judgments which are relied upon by lawyers. The complexities and subtleties that plague criminal law and leave the trial judges “wondering about their ability to complete a criminal trial from start to finish without committing reversible error” have not been created by criminal lawyers. I agree with Justice Moldaver that complexity is “a pox on our criminal justice system”. However, judges and lawyers are guided by the rule of law. When the Supreme Court of Canada speaks, or our parliament speaks, lawyers and judges are required to listen.

The criminal defence bar has a tradition of courage, independence and excellence. As G. Arthur Martin, probably the most well-respected criminal defence lawyer ever to have practiced in Canada said, “the role of the defence counsel is to provide professional advice and assistance to the client in accordance with the strict ethical standards that govern the told of defence counsel. The defense counsel is not a messenger, an alter ego merely to carry out the wishes of the client irrespective of whether they comport with professional standards. The role of defence counsel is to be champion of the clients cause and to see that his or her rights are not wrongly invaded from and quarter”.

The most eloquent description of the defence lawyer was given by Lord Birtkett as follows, “I am quite sure that when men and women are brought into the civil or criminal court, for whatever reason, they should be able to turn for assistance at what may be the critical moments of their lives to a trained body of advocates, independent and fearless, who pledge to see that they are protected against injustice and that their rights are not wrongly invaded from any quarter.

The vocation of the advocate calls for the nicest sense of honour and for complete devotion to the ideals of justice, and I believe it to be lofty and necessary calling which is vital for the maintenance of that way of life in which we have come to believe”. Great advocates have passed on this tradition. A courageous bar, a fearless bar is, as G. Arthur Martin said, “essential to the existence of a free society”.

What Is Restitution In Criminal Defense Law?

In criminal defense law, if someone is found guilty of a criminal act, they might be ordered not just to serve prison time, but also to pay something called restitution. Restitution is a specific dollar amount that the court orders a defendant to pay to the victims of their crime. Restitution is typically ordered by a judge when someone suffers financial loss due to the criminal activity of the defendant. Restitution rests on the theory that the criminal should be responsible to completely restore what their victim lost due to their crime.

An example of restitution would be if someone trespassed onto someone else’s property and spray-painted their house. If the perpetrator was found guilty, the judge might order them to pay the homeowner the amount of money that it costs to undo the damage that was done. Restitution can be ordered for many different things and is decided upon by the judge who presides over the case.

When does restitution apply?

Usually, restitution is not the only consequence of a criminal act. It is typically in addition to a sentence such as jail time or community service. You can receive just restitution as a consequence of your crime, but that is fairly rare. Both states and federal jurisdictions have guidelines about who is allowed to receive restitution and how to calculate the amount owed. Depending on where your case is tried, the rules concerning whether you will be required to pay restitution and how much you might have to pay will differ.

The difference between fines and restitution

The difference between someone being ordered to pay a fine and restitution is that restitution is paid directly to the victim of the crime as compensation for any consequences they suffered either financially or as the result of an injury. A fine is paid to the government jurisdiction and is meant to be purely a punishment for a crime that is committed. A fine is not meant to compensate the government for any injuries; it is meant to deter other people from committing crimes.

It is possible for someone to be ordered to pay both fines and restitution. If a defendant is found guilty of stealing government property, they might be ordered to pay restitution for what they stole, and they can also be fined as a means of punishment. The main difference is who the money goes to and the reason for the defendant being ordered to pay.

What are the types of cases where restitution may be ordered?

Restitution can be made in three different types of cases.

  • Restitution might be ordered if there is a breach of contract, which is when a party has not followed through with their contractual agreement. The restitution is calculated by the amount of breach that the other party suffered. It usually equals the rest of what was not paid on the contract made.
  • In some personal injury lawsuits, restitution might be ordered instead of compensation. The restitution is awarded for economic damages, not noneconomic damages.
  • In criminal court, a defendant is usually ordered to pay restitution to their victim or victims to make them “whole” again.

How do restitution payments work?

When a defendant is found guilty of a crime, the judge may be able to award the victim or victims harmed through the crime as a part of the sentencing process. How the victims are capable of collecting and how the money is dispersed can vary from state to state. Some states require that the defendant set up an inmate account, where any money that they make while incarcerated goes directly to the victims of the crime.

Typically, the court will require that the defendant pay a specific percentage of their wages, whether they are incarcerated or working. Those wages are usually garnished and sent directly to the victim until the restitution has been paid off.

Restitution is how most criminal courts repay victims of crime for what was lost through the criminal activity of the defendant. Unlike a fine, the reward is made directly to the victim or victims who were harmed as a result of the criminal’s actions.

Impaired Driving0

The Criminal Code of Canada makes it an offence if a driver’s ability to operate or have care or control of a motor vehicle is impaired by alcohol and or drugs. Courts have defined “impairment” to mean any degree of impairment ranging from slight to great. So for example, swerving between lanes, having slurred speech or bloodshot eyes, and a strong odour of alcohol emanating from a driver’s breath may be used as evidence of impairment by alcohol.

Impairment by drugs may be more difficult to detect. However, the Criminal Code of Canada grants the police the power to conduct standard field sobriety tests on the driver – such as walking in a straight line or standing on one leg to determine whether the driver has good balance or not.

If the police believe on reasonable and probable grounds that a person has been in care or control or driven a motor vehicle within the previous three hours and the person is impaired by alcohol, then the police may demand that the person accompany them to a police station in order to provide samples of breath in a breathalyser to determine the concentration of alcohol in the person’s blood. If the police believe that the driver is impaired by drugs, the police may demand that the driver accompany them to the police station to give a sample of either oral fluid or urine (or blood in certain circumstances) to determine whether the person has a drug in their body.

If the driver is subsequently convicted of impaired driving, the minimum punishment for a first offence is a fine of at least $1,000 and a 1-year driving suspension. For a second offence, the punishment is at least 30 days in prison and a 3-year driving suspension. For any subsequent offence, the suspension is indefinite.

As well, drivers convicted of impaired driving must also complete a remedial measures program before being eligible to have their driver’s licence reinstated. The main component of the program is to install an ignition interlock for a minimum of one year for a first offence. With an interlock ignition device, the driver is not able to start the vehicle unless the driver provides an acceptable breath sample into the device. Drivers with an ignition interlock condition must not operate any vehicle without an approved interlock ignition device installed on that vehicle.

Due to changes in the law, drivers convicted on or after August 3, 2010 may be eligible to participate in an interlock conduct review program. In return for meeting specific requirements, such as the installation of an improved interlock device in their vehicle, eligible drivers that enter the program may have their driver’s licence suspension reduced.

It is important to note that a person caught driving while under suspension risks further criminal penalties ranging from a fine to imprisonment.

The Right to Bail0

Section 11(e) of the Canadian Charter of Rights and Freedoms guarantees that “any person charged with an offence has the right…not to be denied reasonable bail without just cause.”

The police are granted powers by the Criminal Code of Canada to arrest individuals under a variety of circumstances. Once arrested, an accused person might be released from the scene where he or she was arrested by being given an “appearance notice.” This generally requires the accused to come to court on a particular date and time that is indicated on the notice. Accused persons may also be required to attend a police station to provide fingerprints and photographs of themselves on a date specified on the notice.

Alternatively, a person may be arrested and taken to a police station. The police may then decide to release the accused person from the police station by giving the accused person a “promise to appear.” This promise to appear will contain information regarding the courthouse the accused person must attend, as well as the date and time. The promise to appear also contains conditions of release that the accused person must obey. For example, an accused person may be prohibited from communicating with certain individuals that the police may believe are connected to the case.

Where the police have determined that they will not release the accused person from the police station, the individual must be taken to court to appear before a justice of the peace within 24 hours of the arrest. A bail hearing will take place as soon as possible, although adjournments may be required to make sure all the parties are prepared to proceed with the proceeding.

Very often, the prosecutor and the lawyer for the accused can agree on the amount of bail and conditions of release. This is referred to as a “consent bail” and the justice of the peace generally releases the accused person on the terms of the agreement. “Sureties” are generally required as part of the conditions to release an accused person on bail. A surety is usually a friend or family member of the accused person that comes to court and indicates that he or she is prepared to pledge an amount of money and is also willing to monitor the accused person while on bail.

On other occasions, there may be no agreement between the prosecutor and the lawyer for the accused person, and a “contested” bail hearing takes place. There are only three grounds for detaining an individual at a bail hearing. They are commonly known as the primary grounds, secondary grounds, and tertiary grounds. The primary grounds refer to whether the detention is necessary to make sure that the accused person will attend his or her trial. That is, whether the accused person is a “flight risk.” The secondary grounds refer to whether the detention is necessary because there is a substantial likelihood that the accused person will have further problems with the law while on bail. The tertiary grounds are generally reserved for the very serious offences like robbery or murder and considers factors such as how strong the case is against the accused person, how serious the offence is, the circumstances of the offence and whether a gun was used, and the potential length of the sentence that the accused person could receive if found guilty.

The accused who receives bail must obey all of the terms and conditions of the bail order until their trial is completed or they may be arrested and brought to court for a further bail hearing.

Rights to Counsel0

In this article we discuss the rights of individuals who have been detained or arrested by police. The Canadian Charter of Rights and Freedoms is the supreme law of Canada. Section 10(a) of the Charter provides that everyone has the right on arrest or detention “to be informed promptly of the reasons therefore;” while s. 10(b) provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right.” Therefore, when a person is first arrested or detained, the police have an immediate obligation to inform the person why the police are arresting or detaining them.

The police must then tell the person that he or she has the right to retain and instruct a lawyer without delay. The right to counsel is important because it allows the person to consult with a lawyer and get advice as to whether they should participate in the police investigation of them. The Supreme Court of Canada has defined the duty on police under s. 10(b) of the Charter as having an information component and an opportunity component. With respect to the information component, a police officer must tell the person under arrest or detention that they have the right to speak to counsel without delay. Of course, many people arrested or detained do not already have a lawyer in mind or even know any criminal lawyers, so the police must also tell the person that if they do not know a lawyer or cannot afford a lawyer, they can speak to duty counsel (a free lawyer), who is available 24 hours a day. Also, where it becomes apparent to the police officer that the person does not understand the English language very well, the police should take steps to obtain the assistance of an interpreter in the person’s native language who can do the translation over the telephone in order for the person to understand his or her rights to counsel.

Once the arrested or detained person is informed of these rights, the person must decide whether they wish to speak to a lawyer at that time. If the person says “no”, then the police do not have any further obligation to contact a lawyer on the person’s behalf. If the person says they wish to speak to a lawyer, then the police must provide the person with a reasonable opportunity to do so. From this point of time and until the person actually speaks with a lawyer, the police cannot ask the person any further questions or try to gather any further evidence from the person. The police will usually wait until getting back to the police station to provide the person with an opportunity to call a lawyer. Back at the station, the person is usually put in a private room with a telephone. Sometimes, the person will have a particular lawyer they wish to contact. The police will do their best to accommodate the request and make attempts at trying to reach that lawyer. However, depending on the time of day, it may be difficult to reach a particular lawyer. After waiting a reasonable amount of time in trying to contact the particular lawyer, police will then resort to offering the services of duty counsel to the arrested person.

Generally, police are only required to allow the person to speak to a lawyer once during questioning. Once the person has consulted with his or her lawyer or duty counsel, police are free to continue questioning the person. In Canada, the lawyer is not permitted to be present with the person when the police are questioning him or her. That is why it is very important that a person have the opportunity to consult with a lawyer to determine how to deal with the police questioning.

It is also important to note that if the police either fail to inform the person properly of the right to counsel or fail to provide the person with a reasonable opportunity to consult a lawyer, then a court may find that the person’s constitutional rights under s. 10(a) or 10(b) of the Charter have been violated and may find that any statement made by the accused during police questioning is not admissible at the person’s trial.

Search and Seizure0

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” In terms of the police and law enforcement agencies, s. 8 of the Charter provides an important buffer between the rights of government and the right of the individual. The government’s right to enforce laws must give way to the right of the individual to be secure against an “unreasonable” search or seizure. Generally, a search is something that violates one’s reasonable expectation of privacy, while a seizure involves the taking of a substance or a thing belonging to a person by the police.

The rules governing police powers of search and seizure are very complex. Some of the police powers are found in law statutes, while others have been established at common law (by the courts). The most familiar power to search and seize is by way of a search warrant. The Criminal Code requires that the police obtain permission from a justice of the peace or a judge before conducting a search. The police must demonstrate to the justice of the peace or a judge that they have reasonable grounds to infringe on a person’s privacy. The police will almost always require a search warrant to search or seize in situations where the individual has a “reasonable expectation of privacy.” The courts have found that an individual has a reasonable expectation of privacy in his or her body, in a home, and in a hotel room. On the other hand, courts have found that an individual does not have a reasonable expectation of privacy in garbage left at the curb, things that are in plain view of the public, and cultivation of marihuana on land where the individual is a trespasser.

On the basis of common law authority, a police officer may, without a warrant, search a person who has been arrested. At the time of arrest, a police officer may seize from the individual any property that is connected with an offence or any weapon or item that may be dangerous to the police officer’s safety. Sometimes, police stumble upon evidence that does not require a warrant for its seizure. For example, a police officer who pulls over a driver for a speeding ticket and while speaking with the driver notices a gun on the passenger’s seat, is lawfully entitled to seize the gun under the “plain view doctrine.”

Another means by which police may search and seize without a warrant is to obtain the consent of the individual. However, the courts have set a high test for the police to meet in obtaining an individual’s consent. Firstly, the consent must be voluntary and must not be obtained by force or by intimidating conduct by the police. Secondly, the consent must be informed. The individual should have enough information to allow a meaningful choice as to whether to permit the search or seizure. At the very least, the police officer should inform the individual that he or she has the right to refuse permission for the search or seizure.

So, what happens when the police do not follow the search and seizure rules established by statute and the courts? Under s. 24(2) of the Charter, any person whose Charter rights have been violated – for example, by an unreasonable police search or seiz­ure – may apply to a court to have evidence excluded at his or her trial. However, not every Charter violation will cause evidence to be excluded. The violation must be a serious one that brings the administration of justice into disrepute. In determining whether to exclude evidence, the trial judge will consider the seriousness of the police misconduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in the adjudication of the case on its merits.

The number of search and seizure cases decided in the 30 years that the Charter has existed must range into the tens of thousands. In this article, I have simply attempted to outline the basic framework of police powers balanced against the rights of individuals to be free from unreasonable search or seizure. Some further sub issues arising from search and seizure by police will be explored in future articles in this column.