Access to justice is always a live issue, no matter how developed a country may be. Luckily, in Canada, our justice system rivals some of the best in the world. However, there is still concern for those who represent themselves in the criminal justice system. After all, criminal matters have a unique way of affecting one’s life with grave consequences if convicted: jail sentences, loss of employment, social stigmas or an inability to travel, just to name a few.

It comes as no surprise that, when up against the power of the state (Crown attorneys, police forces, expert witnesses), an accused person’s best chance at ensuring a fair trial, resolution agreement, or sentence happens with competent counsel on their side. However, even with the most generous of discounts, retaining counsel can be an impossible financial burden to bear for many people. And so, the concept behind state-funded legal representation is born.

… the reality is that, when a person is self-represented, the result is often more litigation, more court matters and more appeals. This in turn costs tax-payers more money. But there’s a catch: one has to qualify for state-funded legal representation before one can get it. While that may appear sound in theory – not everyone should qualify for legal aid – the practical reality is that the cut-off for qualifying for legal aid can be frighteningly low.

Legal Aid Ontario boasts two main qualifications for a person to obtain state-funded counsel:

1. the Crown attorney needs to be seeking a jail sentence; and
2. the combined income of the person and their family members must be below a set threshold.

If a single person with no spouse or children makes more than $17,731 gross per year, they will not qualify for legal aid for a non-domestic abuse matter. If a person lives with someone, their combined salaries must be below $31,917 in order for the person to qualify for legal aid.

It is not hard to imagine the obvious gap created here: thousands of people who have a low annual income must either hire a lawyer they cannot afford, or they are forced to represent themselves. What’s even more troublesome is that the Ontario government announced a $164 million dollar cut in Legal Aid Ontario’s budget earlier this year. The result is that Legal Aid Ontario must reduce the number of certificates for state-funded counsel as well as funding for transcripts of proceedings, expert witnesses, or psychological testing.

The problems that can arise with a self-represented accused were clearly at issue and highlighted in the case of R v Sabir. A trial judge has a heavy duty to protect the rights of a self-represented accused. The Ontario Court of Appeal held that the trial judge did not do so in this case. Specifically, at issue in this case were the following grounds:

(1) the trial judge failed to conduct a voluntariness voir dire in relation to the statements made by the appellant to Sgt. Gilmore following his arrest; (2) the judge failed to inquire into potential Charter breaches; and (3) the judge misinformed the appellant concerning his right to testify. (At para 18.)

On the voluntariness of the accused’s statements, the Ontario Court of Appeal held:

In the circumstances of this case, the record does not suggest that the appellant understood the purpose and consequences of a voluntariness voir dire, and made an informed decision to waive his right to a voir dire. Nor can it be said that, had the trial judge raised the issue of voluntariness with the appellant, the appellant would have proceeded in the same manner. (At para 26.)

Without a sound justice system, our sense of social justice and democracy is threatened, and our constitutional rights are challenged and infringed.The Ontario Court of Appeal also held that the trial judge failed to inquire or turn her mind to the potential section 8 and 10 breaches of the Canadian Charter of Rights and Freedoms. The trial judge did not invite submissions on or enter into an inquiry of these issues. The Court held that the self-represented accused was not properly advised or informed of his legal rights. As a result, the Court ordered a new trial on almost all of the charges against the accused and reduced the accused’s custodial sentence from 18 months to 6.

It is unclear from this ruling whether or not Mr. Sabir qualified for legal aid. However, the reality is that, when a person is self-represented, the result is often more litigation, more court matters and more appeals. This in turn costs tax-payers more money. Not to mention, at issue in this case were trial fairness and the accused’s Charter rights, two of the most paramount pillars of our justice system.

Access to justice is an integral part of any well-functioning justice system and Ontario should be no exception. The $146 million dollar budget cut imposed on Legal Aid Ontario affects each and every person involved in the justice system, and leaves our community with an imbalance of power between the people and the state. Without a sound justice system, our sense of social justice and democracy is threatened, and our constitutional rights are challenged and infringed. Access to justice must be made a government priority, as it affects the very foundation of our justice system.

In R. v. Omar, 2018 ONCA 975 (CanLII), the Ontario Court of Appeal has rubber stamped the illegality of what is commonly referred to as carding, declaring that “[Everyone has] every right to be walking down the street unimpeded by the police” (at para 51).

In a stunning decision where the Crown’s case rested solely on the drugs, firearm and ammunition found on Mr. Omar, the Court of Appeal excluded the evidence because of the breaches of the Applicant’s rights. Mr. Omar was acquitted on all counts.

“I recognize that the exclusion of a firearm from evidence may be seen from one perspective as producing an unpalatable result” the Court held, “but a difficult result in one case is sometimes an acceptable price to pay for ensuring respect for Charter rights…” (at para 60).

While there might be frustration or confusion as to the loss of this prosecution, society should be equally outraged at the blatant disregard for our Charter rights displayed by the officers in this case. Each and every individual has the right to walk down to the street without police intervention. Far from being deemed a mere technicality, the right to be free from arbitrary detention is one of our most sound constitutional principles that separates us from many other countries around the world. Put simply, the police must have a lawful reason for stopping someone and investigating them.

Thus, the practice of carding, which is essentially what happened in Mr. Omar’s case, has no sound legal basis. An officer cannot simply stop individuals, demand identification and then arrest them because they refuse a demand to search their pockets.

Far from being deemed a mere technicality, the right to be free from arbitrary detention is one of our most sound constitutional principles that separates us from many other countries around the world.The Crown had argued at trial that, because the officers did not believe they had illegally detained Mr. Omar, there was a good faith basis for their actions. The Judge at trial agreed and allowed the evidence. Mr. Omar was convicted. The Court of Appeal took the opposite position: “The police had no lawful justification to detain the appellant. They have no excuse for not knowing that they violated his Charter rights when they did so” (at para 61).

The Court of Appeal’s strong words provide a cautionary lesson to all officers to deter them from arbitrarily detaining individuals. As it turns out, their lack of a legal basis for doing so can result in extremely important evidence being excluded by one of the highest courts in the country: R. v. Grant, 2009 SCC 32 (CanLII).

Importantly, there are parallels between this case and the seminal case of Grant where the Supreme Court of Canada outlined the scope of arbitrary detention and the framework for excluding evidence pursuant to the Charter. Both Mr. Omar and Mr. Grant were young black men confronted by a larger officer dressed in a police uniform. It is important to note that the relevance of the age and race of the applicants cannot be divorced from the police behaviour in question. Thankfully, the Court of Appeal recognized the importance of this ruling in the greater societal context and has conveyed a clear message that one’s Charter rights should not be less secure because of the race, age, or ethnicity of the individual. One can only hope that every police officer charged with the duty to protect and serve our communities has the same sentiments, standards and beliefs.

In R. v. J.L. 2018 ONCA 756, The Ontario Court of Appeal allowed the appeal of an accused who was convicted of sexual assault. The trial judge convicted the accused because he felt that the complainant would not engage in the acts as described by the accused because she was a young woman. The alleged incident happened during a school dance, where the accused testified that the complainant engaged in consensual sexual activity.

Simply believing someone for the sake of believing someone, or because you have sexist notions of what a young woman will consent to, has no place in the courtroom. As the Ontario Court of Appeal noted, the trial judge said aloud:  “I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.”

In response and in review of this decision, the Court of Appeal found the following:

“In other words, the trial judge could not accept, or even have a doubt arising from, the appellant’s evidence because the trial judge was of the view that  young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge’s assessment of whether, on the whole of the evidence, the Crown had proven the appellant’s guilt beyond a reasonable doubt. I do not share the trial judge’s view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.”

The trial judge clearly had an impression and bias about how young women would act and what types of sexual activity a young woman would consent to. This type of reasoning is the antithesis to the very core of feminism: that women cannot be painted by a standardized oppressive paintbrush. All women do not do or refrain from certain things because of how ladylike something is. So too does the Me Too movement serve as a cautionary disclaimer that all women experiencing sexual assault do not behave in a cookie cutter fashion. The very point of this reality is that women, in all forms and ways, are challenging the social construction of what women ought to do: what all women must do, according to society.

For these reasons and in the climate of social awareness around these issues, the reform of the recent sexual assault laws has fallen into place. They allow complainants to know what records the defence plans to use to impeach their credibility (i.e. the Ghomeshi complainants would have had a chance to review their emails prior to their testimony, instead of being surprised at trial).

The trial judge clearly had an impression and bias about how young women would act and what types of sexual activity a young woman would consent to.What’s unfortunate and perplexing is the fact that the very point of the Me Too movement, to believe women at all costs when they allege sexual assault in any form, is advanced in a courtroom by a jurist who reasons that, because the complainant is a young woman, she would not have engaged in the sexual activity as described. This type of reasoning (in addition to being offensive, sexist and riddled with patriarchal ideas of gender binary norms), is counter intuitive to the enormous shift  happening now in our social awareness, but yet gives this movement what its supporters want: a conviction.

The correction and analysis of this reasoning by the Court of Appeal is significant. This decision serves as an important reminder of the logical fallacies that exist in even the most learned justice actors in the court room. Simply believing someone for the sake of believing someone, or because you have sexist notions of what a young woman will consent to, has no place in the courtroom. Our Constitution is one that requires all of us to presume the innocence of those who are accused, and to give them a fair trial by holding the Crown to its onus of proving a charge beyond a reasonable doubt. Without this, our justice system will fall from its pillar and land on shaky ground where we are all at risk of facing the swift hammer of “justice” coming down upon us.

After the Supreme Court of Canada’s ruling in R. v Jordan, 2016 SCC 27, which clarifies and streamlines the Charter of Rights and Freedoms delay of proceedings applications pursuant to section 11(b), “Jordan issues” in the courtroom are still alive as ever. Crown Attorneys, judges and court staff all have instituted protocol, mandates, better practices and directives to ensure the swift movement of matters through our criminal justice system.

However, if you are a defence counsel, beware. Each and every request for time to accomplish tasks on a file, even when reasonable, is often met with aggressive opposition from the Crown Attorney and/or a grand inquisition by the presiding jurist. But what can ya do? Everyone is doing their respective jobs. Everyone has to protect the court record by clearly suggesting or declaring whose fault it is for the “delay.”

What is in issue is when the interest of justice— and the stern cautions from the Supreme Court in Jordan— trump the humane treatment of circumstances beyond the control of the defence. Yes, we all have a job to do and a court record to protect, but have we lost our humanity all together when defence counsel’s request to adjourn a matter due to the tragic and unexpected death of loved one is opposed? Yes, we have a duty to protect the record, but don’t we also have a duty to respect and dignify the tragedy of our learned colleagues— as humans?

What we all need is a deep breath, and a moment of reflection before offensively and unnecessarily attacking our colleagues when serious personal issues are brought to the attention of the court.I would fathom a guess that, in the name of justice, the Supreme Court of Canada in Jordan was not instructing the judiciary to give defence counsel’s student a hard time when they attended to adjourn a trial date because the defence counsel was in a coma. I would fathom a guess that the Supreme Court of Canada in Jordan was not instructing Crown Attorneys to oppose the adjournment request of a colleague who had to undergo surgery unexpectedly on the date of the trial for serious medical reasons. I would fathom a guess that the Supreme Court of Canada in Jordan was not instructing judges to cross-examine defence counsel on who died, and how affected they are by that recent death in order to substantiate the adjournment request.

The irony is that in those cases, should an accused’s delay rights come into issue, what would the defence counsel say? I was in a coma therefore my client’s rights were breached because I couldn’t conduct a trial? I had to attend a funeral but the Crown is responsible for the new trial date? I was in a hospital having my appendix removed, therefore it’s the Court’s fault that my client had to reschedule the trial date?

It appears as though we have all lost a piece of our souls in this post-Jordan hysteria. The illogical and offensive questions into defence counsels’ personal lives— at a time when they are dealing with personal hardship or tragedy— is unwarranted. We need not trade in our humanity in order to satisfy the direction of the Jordan decision by the Supreme Court. Rather, a respectful and personal approach should be taken when requests are made that involve serious and personal reasons. The disclosure of that highly personal information by defence counsel should be sufficient to warrant the necessity of an adjournment request, especially since we too are officers of the court. The nature of that information should be respected and considered, instead of discounted and qualified.

What we all need is a deep breath, and a moment of reflection before offensively and unnecessarily attacking our colleagues when serious personal issues are brought to the attention of the court. Reprimanding defence counsel or inquiring into the nature of their relationship when someone in their life has passed away brings justice to no one. Rather, it clouds our criminal justice system with the smog of inhumanity, and indignity: two words that should never be used to describe our system of justice.

Many perceive defence counsel as snaky, tricky, tactical used car salesman-like villains in courtrooms all across our countries. It’s easy to blame us— we defend criminals, right? The Crown Attorney on the other hand, is often championed as justice fighters— putting the bad guys in jail where they belong, virtuous and pure.

The #MeToo and #believethevictims movements are obviously focused on the rights of complainants in sexual assaults, but the movement also seeks to villainize defence counsel who asks questions in cross-examination and passionately advocate for their client. It is these very moments in the courtroom that are glorified as shining examples of the slimy business of defending accused persons and the myth that defence counsel are pulling a fast one over the eyes of lady justice. Because there’s no risk of wrongful convictions, or the Crown acting improper, right? Let’s just do away with defence counsel all together since apparently we don’t further the goals of justice.

There is no room for improper tactics from either side, otherwise justice will not prevail.

But yet, amidst the fictitious fog, the Ontario Court of Appeal reminds us all of the parameters of the Crown Attorney, because they too, can cause a miscarriage of justice because of their conduct in the courtroom. In R. v. J.S., [2018] O.J. No. 576, on appeal from a judge and jury trial held in the Superior Court of Justice, the Court of Appeal drew bright fluorescent lines around the Crown Attorney’s permissible conduct when they are presenting a weak case. In J.S., the accuser did not see her alleged attacker and only saw a shadow. The accused was known to her but she never identified him as her attacker. She testified that 98% of what happened she doesn’t remember. Before the trial, she told friends that it could have all just been a bad dream. There was some male DNA found on the complainant’s underwear, but the forensic expert could not determine who deposited the fluid, or what the fluid was, or even when it was deposited. The complainant had a boyfriend at the time.

The accused and his girlfriend testified that they were in bed together when they heard cries from the complainant’s room. The accused entered the room with his girlfriend and they helped her calm down until police arrived. The accused remembered helping the complainant find her underwear at her request; the girlfriend remembered watching that take place. The complainant was taken to hospital and swabs were taken to complete a traditional “rape kit.” There was no semen detected on any of the tested swabs.

As Moldaver, J put it in his reasons in Groia, “trials are not…tea parties.” The Crown in this trial implored the jury to find the accused guilty beyond a reasonable doubt. She told the jury that the lack of detail in what the accused told the police on arrival was detrimental to his credibility, putting aside completely his right to silence enshrined by our Charter of Rights and Freedoms the Court of Appeal held. She told the jury that the fluid the complainant’s underwear was the accused’s saliva. Having no conclusive forensic evidence to back up this ferociously exaggerated claim, the Court of Appeal held that that the Crown was misleading the jury and misappropriating the evidence.

However, at trial, the jury convicted the accused. Assumingly, they largely were influenced by the Crown Attorney’s closing address to them. The Judge, Justice Robert F. Scott, did not intervene and provide an instruction to the jury to correct the Crown’s improper comments in her address. The accused was sentenced to 18 months in jail.

Thankfully, the accused appealed his sentence and The Court of Appeal ordered a new trial in the circumstances. The Court of Appeal held there was a miscarriage of justice and the accused did not have a fair trial.

The Supreme Court of Canada has also echoed a similar tempo in Groia v. The Law Society of Upper Canada 2018 SCC 27 where a defence counsel had his licence suspended for incivility in the courtroom. The majority held that the decision by the Law Society of Upper Canada was unreasonable.  Importantly, the Court did not waiver from pointing out that despite the allegations against Mr. Groia, the Prosecutor in that case also said unfavourable things in court and both sides acted in a way that was less than ideal. But the poor conduct of the Crown Attorney had been completely lost in the decisions by the Law Society and in the surrounding media coverage. The majority of our country’s highest Court did not forget, and made a point of mentioning it in their reasons for an important reason.

As Moldaver, J put it in his reasons in Groia, “trials are not…tea parties.” Nor are the defence or crown attorney’s enemies. Both are important members of the adversarial system: equal contributors and advocates of justice. And if both parties do the best job they possibly can, then the system is working. There is no room for improper tactics from either side, otherwise justice will not prevail.

Disgraced (and now nearly fired) Ontario Police officer, Craig Ruthowsky, has been recently found guilty by a Toronto jury of bribery (for accepting protection money from drug dealers), attempting to obstruct justice, breach of trust, and drug trafficking. Ruthowsky also has similar charges pending in Hamilton for which he has yet to stand trial.

Ruthowsky was caught via wiretap disclosing police tactics to drug dealers amidst a police project investigation, and his bank account mysteriously became more flush during a crucial period of time (because of a pool installation business where he had bad book keeping habits and accepted only cash, he says). In essence, the jury found Ruthowsky guilty of accepting cash payments from drug dealers, in exchange for allowing the drug dealers to roam free and avoid arrest and continue trafficking various narcotics on our city streets.

The judge in Ruthowsky’s case, Justice Robert Clark, has not been a stranger to public scrutiny as an integral member of our justice system himself. In 2017, His Honour granted a mistrial in a case that he was presiding over because during the defence’s closing address to the jury, many present in the courtroom heard His Honour mutter the F-word under his breath. In 2010 and 2015, His Honour was accused of displaying obvious signs of bias by shaking his head or making facial expressions during trial or submissions. Needless to say, His Honour has a reputation for being an outspoken member of the Superior Court Bench.

“It’s a scandalous amount of money that this man used his badge to generate. He used his badge as an ATM, a cash machine,” His Honour hissed.

However, Ruthowsky’s case seemed to be the perfect fit for Justice Clark’s temperament. It resulted in a perfect storm of condemnation for the former officer who not only embarrassed himself and his fellow officers, but made a mockery of his duty to protect the public. Justice Clark was having none of it.

The defence asked His Honour to consider sentencing Ruthowsky to 3-4 years in the penitentiary. The Crown was asking for 10. In a surprising move, Justice Clark made it apparent that he would be giving Ruthowsky even more time behind bars than the Crown wanted, calling the positions of both counsel too light for the “repugnant” crimes that Ruthowsky was convicted of. “It doesn’t look good for you in terms of what you perhaps expected the outcome would be,” he bluntly stated.

In an effort to reduce his sentence as much as possible, Ruthowsky said to His Honour: “the only thing I want you to know is that this conviction, the jury decision was shocking, devastating. It’s destroyed my life. It’s destroyed the life of my kids.”

“Well sir, you’re the author of that misfortune. You destroyed your own life by taking bribes,” His Honour quipped back.

Justice Clarke ultimately sentenced Ruthowsky to 13 years behind bars, and ordered him to pay a $250, 000 fine. If he does not pay that fine within a year, Justice Clark ruled that 3 more years will be added on to his sentence. “It’s a scandalous amount of money that this man used his badge to generate. He used his badge as an ATM, a cash machine,” His Honour hissed.

In a surprising move, Justice Clark made it apparent that he would be giving Ruthowsky even more time behind bars than the Crown wanted, calling the positions of both counsel too light for the “repugnant” crimes that Ruthowsky was convicted of. In his judgment, Justice Clark called Ruthowsky “a man of profoundly flawed character.” He openly read told Ruthowsky that his criminality was “motivated by sheer, unbridled greed,” called him “arrogant.” He said that Ruthowsky presented as someone who felt “a supreme entitlement to do what he was doing,” and who “has absolutely no insight into the profoundly wrongful nature of his actions.” Justice Clark was said to have been glaring at Ruthowsky across the courtroom while reading his judgment.

To say that Ruthowsky endured a judicial tongue lashing is putting it mildly. But the importance and utter disdain that His Honour vocalized, as an important face of the justice system himself, is crucial in this time of political tension arising globally. The Rule of Law is a fundamental doctrine of democracy and a properly functioning justice system. However its value, worth, and durability have been brought under scrutiny amongst the political soap opera on display south of the border. His Honour’s clear and morally anchored comments served as a promising and comforting indication that at least in our country, no one is above the law.