Sunday November 23, 2014

Talk to a lawyer or your client’s a fool


“He who represents himself has a fool for a client,” said Abraham Lincoln.

I have been covering courts for nine years now, but it never ceases to amaze me how many people show up on Monday mornings ready to do just that.

Here is how it typically goes.

Judge: Are you Jane Doe.

Jane: Yes.

Judge: You’re charged with XYZ, do you understand the charge?

Jane: Yes.

Judge: Have you talked to a lawyer?

Jane: No.

Judge: Do you want me to adjourn this so you can talk to a lawyer?

Jane: No, I just want to plead guilty and get this over with.

Wrong. Wrong. Wrong. Wrong. And definitely wrong.

I recognize the justice system favours the rich, not technically, but certainly in practice. In fact, most of the people who find themselves in this situation cannot afford a lawyer. And many of those who cannot, also do not qualify for legal aid.

Nevertheless, anyone facing charges, except for perhaps minor traffic violations, should always answer ‘yes’ to the question, “Do you want me to adjourn this so you can talk to a lawyer?”

Case in point: Monday morning a woman stood up to plead guilty to operating an unregistered motor vehicle. The conversation went roughly like the one above, but the Judge Ross Green suspected that the woman didn’t believe she was guilty.

“Do you believe you are guilty?” Green asked.

She said, personally she didn’t, but that she recognized under the law she was. The judge asked what happened. She explained that a friend of hers had told her that once he got his car registered he would take her out for a drive. He showed up on the evening in question and they went driving. After a while, he told her he was drunk. She took over to drive him home then she would walk back to her own place.

They got pulled over and, lo and behold, the vehicle was not registered. She said the friend said he would pay the fine because it was not her fault, but she has not been able to get hold of him since.

Green did not accept the guilty plea. Being very careful to point out he was not coming to a conclusion on the case, he suggested it sounded like she may have a “defence of necessity.”

This is, not surprisingly, a very technical argument. Basically, under Canadian law, if you were compelled to break the law out of self-preservation or sense of duty to another, you can be found not guilty of the act providing there was imminent danger, there was no legal alternative and the harm of the act is at least proportional to the harm avoided.

It may not be an argument that would work in this case. On the first point, the danger that the woman’s friend would be criminally charged with impaired driving was not imminent. The legal alternative would have been to park the car and both walk—although, according to her, at least, she didn’t know the car was unregistered, another possible defence. Certainly, the harm potentially avoided was greater than the harm inflicted by driving the unregistered car, but that doesn’t really address the issue that the danger must be imminent.

In any event, these are things you just don’t know unless you talk to a lawyer. In this case, spending perhaps thousands of dollars to avoid a $580 fine might not be worth it, but there are options. There is a pro bono office in Yorkton that can give advice. The Yorkton Tribal Council has services that are accessible to everyone. At the very least, a person can talk to the Crown. These attorneys have a legal obligation to turn over their evidence and tell you what their position is. They have an ethical obligation to advise you of your options.

In at least two other cases Monday, people who were ready to plead guilty and walk away with criminal convictions, were saved by the Crown, who talked to them during an adjournment and advised them they were eligible for alternate measures.

Bottom line: One way or another, talk to a lawyer.



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