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| Norman Douglas |
I think it's time to ruffle some feathers on the golden goose.
When I was a lawyer, I didn't care for lawyers’ jokes, but loved the ones that made fun of judges.
When I became a judge, I loved lawyers’ jokes (even made up a few), but thought jokes about judges were offensive.
Now I’m retired. I love jokes about both professions.
I am going to tackle two issues that are linked together like Bonnie and Clyde, Jesse and Frank (only you cowpokes out there will know their last name), Butch Cavendish and John Reid (gotcha). I could go on, but you get the picture.
The two culprits today are plea bargains and joint submissions.
Now both are necessary cogs in the justice machine. The problem is, in the last few years particularly, they have become the engine and the steering wheel.
Let’s get the legal reasoning out of the way before we go further, and the poop hits the fan belt.
Here is the present law in the unanimous decision as articulated by Supreme Court of Canada Justice Michael Moldaver (or, Mike, as I called him in the case of R. v. Shell and Paquette, when he, as a defence counsel, came up from Toronto to Sault Ste. Marie to do battle with me when I was Stormin’ Norman-the Crown):
R. v. Anthony-Cook, [2016] 2 SCR 204.
“When Crown and defence counsel agree to recommend a particular sentence to the trial judge, in exchange for the accused entering a plea of guilty, [joint submissions] are vitally important to the well-being of the criminal justice system, as well as the justice system at large ... a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. For joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted ... [this stringent test] best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them.”
Now there is nothing alarming about that. The “many benefits” have to do with easing the backlog of criminal cases, answering the question of the accused (“What am I looking at here if I plead guilty?”), sparing the victim the further victimization that often occurs in the witness stand and allowing the lawyers to know the result before the judge even hears the facts of the case.
The problem is not with what Justice Moldaver said.
It is with how the decision has been “misinterpreted” in some jurisdictions. May I be so bold (yes, I may, now that I don’t have to worry about being called before the judicial council anymore) to suggest “misused”?
What got me thinking about this happened last week. I was having lunch with two senior police officers. They were talking about how times have changed in the criminal courtrooms (normally not a bad thing).
That most police officers rarely need to go to court anymore.
That some of the younger officers have never been and others have not for six or seven years.
That the vast majority of matters scheduled for trial never happen — a bargain is struck between the lawyers and a plea of guilty is entered on or before the trial date.
That, in cases that are complex or complicated, where the investigation has required significant resources, they have been frustrated to see the case bargained away by a guilty plea to lesser charges and lighter sentences.
As I let the cops pay for the bill, I drove home pondering whether it was the lawyers, not the judges, who were making the decisions now.
I immediately called one of my friends who is still on the bench to get a judge’s perspective on whether joint submissions were becoming a problem. He referred to the Anthony-Cook case and said most judges feel their hands are tied. He confirmed what I had been told at lunch.
Simply put, (I exaggerate a tad to make my point) is there now a rubber stamp on the dais instead of a gavel?
Let me remind those not in the legal profession (that assumes most of the readership of Law360 Canada shares some of these columns with their friends and family — at least mine, I hope) that lawyers and judges are human — with the same flaws as people in every job.
“OK, Your Honour, we have this six-week fraud case with 40 witnesses who have all lost their life savings, but my friend [believe it or not, that’s what the snarly defence lawyer who cannot abide the smug prosecutor who scorns the defence lawyer, call each other in court, where everyone is supposed to be truthful] and I have a deal that the accused pleads guilty and gets probation with some counselling ...”
“Sounds good to me,” says the judge, who is now unshackled from six weeks of torture and can point the finger at Justice Moldaver if anyone asks how could that goofy sentence be “justice.”
But this is only the first half of the problem of the joint submission — giving away the farm to the bad guy.
What about the innocent accused who is offered a plea bargain?
I think any defence counsel who has been in the business for a few years has run into this kind of nightmare:
You have a client who swears their innocence but, because of their record, has been denied bail. You also know that the case for the Crown is weak and that your client stands a reasonably good chance of being found not guilty. Your client has already been in jail for a month, the trial date is four months away and, if convicted, they may be facing two years in jail.
The four-day trial will cost your client money that they don’t have. Heck, let’s throw in that your client has a parent on life-support, and they are badly needed at home.
The Crown offers to bring the matter forward to tomorrow if your client pleads guilty and will agree to a joint submission for probation.
There are other threats to “the well-being of the criminal justice system.”
I have worked in 100 different courtrooms all over the province of Ontario. I have witnessed jurisdictions that have an inexperienced Crown’s office. Or a shortage of experienced defence lawyers. Or judges who will never reject a joint submission.
Justice Moldaver’s model system works on an even playing field. But if one of the three major participants can be pushed around, then Lady Justice holds a tilted scale in that town.
Let’s play “You Be The Judge” for a moment.
Why don't we take a real case?
Um, I know, how about one from my book?
Now the Crown, defence counsel and judge in this case were all experienced. And good-looking. It was an even playing field.
The accused was a man named Max Mahr.
He was 83 years old and a first offender.
He pleaded guilty to writing graffiti on the walls of public places.
His lawyer (who has since been appointed a judge) and the Crown (a respected and skilled prosecutor) had a joint submission for me: Conditional sentence — no jail.
Mr. Mahr expected to be going home that day in court because he had honoured his part in the plea bargain. To be fair to his lawyer, he had been warned that the judge; a.k.a., me, who had done the pretrial on the case, was not happy with the joint submission that the “joint” might be “jumped,” and that there was a possibility he would be going to jail.
Mr. Mahr must have scoffed at the idea. An old man, frail, no record, a property crime, a guilty plea ... preposterous ...
I sentenced him to six months in jail with probation to follow, including a term that he must perform 40 hours of community service, suggesting to the community service co-ordinator that perhaps that service could be cleaning graffiti from downtown buildings and public washroom walls.
I guarantee you will at least understand (though you may disagree) why I rejected the joint submission when you read chapter four of my book. I will give you a hint: chapter four’s title is “The Last Nazi.”
A judge must abide by the decisions of higher courts. They must adhere to the procedure set out in Justice Moldaver’s decision.
But all judges must be prepared to reject a joint submission when necessary. And lawyers must never have the final say.
Trust me, I’ve been both.
Norman Douglas is a retired criminal court judge with 27.5 years of experience on the bench. His book, You Be the Judge, was published in December.
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