Sunday, October 4, 2015


Role of a defence lawyer

The role of a defence lawyer is widely misunderstood but it's important to understand if you are ever in trouble and need a lawyer.

A defence lawyer's job is to get the best possible result for the accused consistent with the directions of the accused and legal ethics. That means that a defence lawyer has to be completely loyal to the client - there can be no other interests represented but the client. And it also means the defence lawyer must follow the lawful directions of the client.

So if the client says "I will not plead guilty" the lawyer must follow that instruction even if the lawyer thinks it's the wrong decision. If a client says "I am going to testify at trial" that's the client's decision and the lawyer has to accept it regardless of whether or not testifying is prudent. The lawyer gives the best information and advice the lawyer can but the client decides.

 The lawyer's duty of loyalty means that anything the lawyer learns from the client remains a secret between the lawyer and the client. Even if the client admits to a terrible crime, the lawyer must keep that confidential. This means the client can be fully open with the lawyer. Now this doesn't mean the lawyer can hide evidence or intentionally mislead the Court. But the lawyer had no duty to tell what confidences learned from the client - in fact the lawyer has the duty not to disclose what the lawyer has learned.

 In terms of getting the best result, that means the lawyer needs to do what is best for the client. That doesn't mean always doing a trial or arguing every issue. Sometimes a conviction is inevitable and a guilty plea is prudent. If the client agrees then it is often better to plead guilty and look for the best sentence possible.

 As a client this means several things. First you can be open with your lawyer and say what happened. Second, while you should listen to what your lawyer suggests, it is your decision whether to go to trial and whether to testify or not. Remember it's your life - don't be shy to do what you think is best.

Thursday, October 1, 2015

What is Fraud?

Fraud is an offence under the Criminal Code - basically a fraud involves tricking someone out of something of value.  

A fraud differs from a theft in the element of trickery - if I grab your wallet it is theft but if I trick you into handing me your wallet, say in return for a fake airline ticket, that is fraud.

Canadian courts have held that fraud consists of two distinct elements:
  • A prohibited act of deceit, falsehood or other fraudulent means. In the absence of deceit or falsehood, the courts will look objectively for a "dishonest act"; and
  • A deprivation caused by the prohibited act, relating to property, money, valuable security, or any service.
The concept of deceit, falsehood or other fraudulent means is complicated. 
"Deceit" is an untrue statement made by a person who knows that it is untrue, or has reason to believe that it is untrue, to induce another person to act on it, as if it were true, to that other person's detriment.  
"Falsehood" is a "deliberate lie".
"Dishonesty" is what a reasonable person would consider dishonest; that can include non-disclosure where a reasonable person would consider it dishonest.  As the Yiddish proverb says "a half truth is a whole lie". 
A deprivation can be an actual loss but it also includes a risk of loss. So if someone's financial interest is put at risk - even if no loss occurred - a deprivation has occurred. 
The penalties for fraud are significant. Where the fraud is over $5,000 the maximum sentence is 14 years imprisonment. 

Bail is not jail

R v Ijam, 2007 ONCA 597, [2007] O.J. No. 3395, at paras. 36-37:

Fourth, I do not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case. Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail. That is because, at a practical, common sense
level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.

Monday, September 28, 2015

Sentencing the Aboriginal Offender

In Canadian law people of Aboriginal background face a different sentencing regime than other Canadians. The Criminal Code provides for restraint in the use of imprisonment for Aboriginal offenders. The Criminal Code provides :

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions or options other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The Supreme Court of Canada, in a case called Gladue, concluded that Aboriginal offenders are more adversely affected by incarceration and less likely to be rehabilitated by it, because imprisonment is often culturally inappropriate. Jail also facilitates further discrimination towards Aboriginal offenders.

The Supreme Court held, in a later case, Ipeelee that "courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples."

Aboriginal people are incarcerated at rates well above their percent of the general population. The Supreme Court has said the higher rate of imprisonment for Aboriginal offenders flows from a number of sources including "low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness and community fragmentation." The Court also noted bias and discrimination against Aboriginal people within the justice system.

The Youth Criminal Justice Act, which governs the prosecution of young people for criminal actions, contains a subsection similar to subsection 718.2(e).

What this means is that a restorative justice process may be more appropriate for an Aboriginal offender. Such processes focus on healing those affected by the criminal act, including the offender, and so are more in line with traditional Aboriginal justice. In addition, a restorative justice approach will often allow for no jail time, which helps reduce the over-representation of Aboriginals offenders in Canadian jails.
This does not, however, mean that all Aboriginal offenders automatically qualify for lighter sentences than non-Aboriginal offenders. The principles of sentencing apply to all offenders equally, and so in many situations such a remedy will not be appropriate to the circumstances of the case. In general the more serious the offence the less difference there will be between the sentence received by an Aboriginal and a non Aboriginal offender.