Self-defence in Canada

[FiReSTaRT]

So you're saying that the best alternative is to routinely financially ruin innocent men for having the temerity to defend themselves against violent attack? Or conditioning law abiding citizens into curling into fetal position and counting on the police to investigate what happened to them after the fact? Or do you have any alternatives to offer without calling us *****?

 

[Motorcycle Mike]

So you're saying that the best alternative is to routinely financially ruin innocent men for having the temerity to defend themselves against violent attack? Or conditioning law abiding citizens into curling into fetal position and counting on the police to investigate what happened to them after the fact? Or do you have any alternatives to offer without calling us *****?

Go figure, lawyers get rich off the current system, and he is a lawyer, so he doesn't mind how it works. Also the majority of politicians have been/are lawyers; consequentially laws (or the justice system, if you will) help make their lawyer buddies rich.

 

[Macs]

After taking undergrad law for a couple years, it seems that the problem is the general public (including people in my class) have this insane notion that our legal system works like the one in the US, where the D.A or A.D.A lay charges and pursue them. Crown attorneys have nothing to do with laying charges, they're expected to make a case and as OG said, they work on a VERY tight budget with VERY little pay (comparably). The police charge you and submit the charges to the Crown.

 

[FiReSTaRT]

After taking undergrad law for a couple years, it seems that the problem is the general public (including people in my class) have this insane notion that our legal system works like the one in the US, where the D.A or A.D.A lay charges and pursue them. Crown attorneys have nothing to do with laying charges, they're expected to make a case and as OG said, they work on a VERY tight budget with VERY little pay (comparably). The police charge you and submit the charges to the Crown.

That's fine.. But whether the Crowns charge them or the police charge them, the results are the same. The bottom line is that you stand a pretty good chance of financial ruin for defending yourself and your family from violent attacks. The cops will charge you because they can. Malicious prosecution is almost impossible to prove if the cop is just being what OpenGambit would refer to as "a dick". The other option is to curl into fetal position, take it and hope that the cops catch the right guy. Castle doctrine would clear a good number of those cases and it would be a good start.

 

[OpenGambit]

Go figure, lawyers get rich off the current system, and he is a lawyer, so he doesn't mind how it works. Also the majority of politicians have been/are lawyers; consequentially laws (or the justice system, if you will) help make their lawyer buddies rich.

another guy that doesn't know what he is talking about.

Firstly. I don't get rich off anything criminal related. However I have worked on a lot of wrongfully convicted cases, you want to see injustice? look up Romeo Phillion. He is a guy that should get compensated. I have spent numerous hours interviewing convicted felons (including murder), pouring over evidence and working on changing the rules surrounding preservation of evidence and ministerial review (S. 696 CCC).
And I did it all for free. I actually care (and do something) about things that are wrong in our criminal justice system, so spare me your lawyer prejudice, because you have no clue

Secondly, the idea that criminal lawyers get "rich" is just incredibly wrong. The criminal defense bar fulfill a constitutionally mandated role, and most of them get paid like crap. Generally, clients are from legal aid, which is rife with problems that encourage moving people through the system as quickly as possible but discourage top notch legal work. Alan Young isn't anywhere near close to rich, and he is probably one of the most well known criminal defense attorneys in Canada right now. On top of all this, you get the distain of the public. Great life...

And to firestart - If you really want to change something, help somebody. start a charity that funds these legal bills, lobby the government. But don't even start on me, because I do a heck of a lot more than you.
Because from where I am standing, I see a political point made from an armchair, and not any genuine attempt at creating a more just world.

Lawyers getting rich from these cases..... what a joke.

 

[OpenGambit]

So you're saying that the best alternative is to routinely financially ruin innocent men for having the temerity to defend themselves against violent attack? Or conditioning law abiding citizens into curling into fetal position and counting on the police to investigate what happened to them after the fact? Or do you have any alternatives to offer without calling us *****?

I didn't see you rallying against Michael Bryant having to pay his legal fees.
Principles are nothing without consistency of application.

 

[Brian P]

I have said before that the criminal legal system is unworkable if the crown has to pay legal fees at a matter of course (without a malicious prosecution tort).

I would argue that the current criminal legal system is unworkable BECAUSE the crown does not have to pay the costs in a case like this.

How is a person just barely scraping by on a $10/hour job supposed to defend themselves against a wrongful charge?

There is NO JUSTICE if a person in that position can not defend themselves - and no way are they going to be able to afford a $1000 per hour lawyer.

I realize that there is a "legal aid" system but it doesn't really help the average person.

If the problem with the above system is that it would cost the government too much then STOP LAYING FRIVOLOUS CHARGES. Back-charge the cops if they do wrong.

 

[Mr.Azim]

Watch the movie Felon

It's a B/C budget movie, but the guy basically goes to jail for accidentally killing a guy who broke into his house.

Basically, if someone is in your house, the police want you to call them and not step foot inside, regardless of what loved ones remain inside.

Did you know that if a thief breaks into your home, falls down the stairs after tripping on an object and breaks his leg.... he can sue you for damages? You are responsible to make your property safe to all visitors, even those who are trespassing.

 

[OpenGambit]

I would argue that the current criminal legal system is unworkable BECAUSE the crown does not have to pay the costs in a case like this.

How is a person just barely scraping by on a $10/hour job supposed to defend themselves against a wrongful charge?

There is NO JUSTICE if a person in that position can not defend themselves - and no way are they going to be able to afford a $1000 per hour lawyer.

I realize that there is a "legal aid" system but it doesn't really help the average person.

If the problem with the above system is that it would cost the government too much then STOP LAYING FRIVOLOUS CHARGES. Back-charge the cops if they do wrong.

Well lets be clear. if you are scraping by on a $10/hour job, you likely qualify for legal aid, the hole is in the middle class.

Secondly. The larger point is that the Crown has had historical immunity from cost awards for centuries, this is based on what I believe to be a correct principle, which is that it is entirely improper for the Crown to have an economic incentive for doing its job.

As I have said before, it is easy to point to one situation and say oh well he should get compensated, but this can not be changed into ordinary course practice without creating huge problems. I will summarize some problems:

- cost awards will create more litigation and more costs. I have seen the deterimination of costs in some cases take years to resolve. This has no effect on access to justice, you are still fronting the money and by the time you get it back, its probably too late. Simply put, costs after the fact is not helpful, a US style system may help, but I don't want to go into a long discussion about the benefits of the Public Defender system vs the legal aid system we have now.

- If a general immunity for the crown for awards of costs is removed, get ready for a massive increase in all fines, including speeding tickets. If the Crown is going to pay costs for the innocent, it is going to seek costs from the guilty. which means that every time you decide to go for the trial option on your speeding ticket, you are going to raise the potential downside by a LOT. Do you really want our crown prosecutors to be marking down their hours reviewing the officer's notes? I question whether that is desirable, or even constitutional. It is the right of every accused to hold the crown to their standard of proof, So would you impose a cost on an indivdual just to make the crown prove their case? This might actually be great for getting guilty pleas (but bad for society), because the potential cost to the indivdual for even minor offences will skyrocket. I strongly disagree with that.

- Further to the above point, would that spill over to other enforcement activities? If you miss a flight because the guy at the airport decided that there was something suspecious in your bag, but it turned out to be beef jerky, is the crown expected to buy you a new flight? and if it wasn't beef jerky, are you also going to get a bill? If a container at the port of vancouver sets off a drug dog. and they hold it for a day before releasing it cause it was clean, do you get to sue the crown for economic loss? Heck, why don't I just sue the crown for the time lost at a RIDE checkpoint? If you want to see unworkable? thats it. You want to see economic stimulus for lawyers? that it.

- what happens if you plead guilty to a lesser charge? costs against you?

- There is also the issue of collections... do you really think that a lot of our guilty criminals can afford those costs awards? i doubt it, and then who is going to pay for them? everyone.

Even in private disputes, there are general concepts of acting reasonably. If the police have PC, they arrest, if the Crown has a reasonable prospect of conviction, they proceed. Government activity should be based on objective standards and not economic incentives, if you think traffic enforcement is bad now... Imagine if the crown can get costs for speed traps.

Again. its not about one guy.

Michael Bryant didnt' get his legal costs back from the Crown. Are you saying that he should?

 

[Mr.Azim]

Well lets be clear. if you are scraping by on a $10/hour job, you likely qualify for legal aid, the hole is in the middle class.

There is a LOT of criteria and requirements that you need to meet in order to get full 100% coverage by legal aid. A huge misconception is that it's a "you either get it or you don't" organization. That is far from the truth..... you can get 100% coverage, or they'll put a lien on a property, or ask for some sort of collateral. If you're making $10/hour, they will request you to pay a certain amount of money that "such contribution will not result in financial hardship". So you might have to put up $100, or $1,000. Depends on the situation.

Not only that, but there has to be some merit to it. Would you want hundreds if not thousands of dollars going into a lawyer's pocket who padded an account for a simple guilty plea? Not at all....

For criminal, a first time offender facing serious (indictable) jail time will more likely than not quality for legal aid. Everything else is done on a case by case basis.


Costs are NOT "awarded" in Criminal court..... it's a separate procedure in the civil court if the victim wants to sue the convicted for compensation for what occurred. It is an entirely separate procedure. Unless there is a fine and victim surcharge, sure... but that goes to the government, not the victim.

If someone plea's to a lesser charge (ie: Keinapple) it reduces jail time, results in community service, etc...

 

[OpenGambit]

There is a LOT of criteria and requirements that you need to meet in order to get full 100% coverage by legal aid. A huge misconception is that it's a "you either get it or you don't" organization. That is far from the truth..... you can get 100% coverage, or they'll put a lien on a property, or ask for some sort of collateral. If you're making $10/hour, they will request you to pay a certain amount of money that "such contribution will not result in financial hardship". So you might have to put up $100, or $1,000. Depends on the situation.

Not only that, but there has to be some merit to it. Would you want hundreds if not thousands of dollars going into a lawyer's pocket who padded an account for a simple guilty plea? Not at all....

For criminal, a first time offender facing serious (indictable) jail time will more likely than not quality for legal aid. Everything else is done on a case by case basis.


Costs are NOT "awarded" in Criminal court..... it's a separate procedure in the civil court if the victim wants to sue the convicted for compensation for what occurred. It is an entirely separate procedure. Unless there is a fine and victim surcharge, sure... but that goes to the government, not the victim.

If someone plea's to a lesser charge (ie: Keinapple) it reduces jail time, results in community service, etc...

I don't think you understood at all what I am talking about.

What I am explaining is what would happen if costs were introduced into the criminal system as suggested, and why it wouldn't work. Obviously, there are no costs in criminal court, or else it wouldn't be new...

If you actually read the post, you would realize that its hypothetical.

 

[OpenGambit]

Watch the movie Felon

It's a B/C budget movie, but the guy basically goes to jail for accidentally killing a guy who broke into his house.

Basically, if someone is in your house, the police want you to call them and not step foot inside, regardless of what loved ones remain inside.

Did you know that if a thief breaks into your home, falls down the stairs after tripping on an object and breaks his leg.... he can sue you for damages? You are responsible to make your property safe to all visitors, even those who are trespassing.

US law is not applicable or helpful here. Its also different state by state.

 

[nobbie48]

Well lets be clear. if you are scraping by on a $10/hour job, you likely qualify for legal aid, the hole is in the middle class.

Secondly. The larger point is that the Crown has had historical immunity from cost awards for centuries, this is based on what I believe to be a correct principle, which is that it is entirely improper for the Crown to have an economic incentive for doing its job.

As I have said before, it is easy to point to one situation and say oh well he should get compensated, but this can not be changed into ordinary course practice without creating huge problems. I will summarize some problems:

- cost awards will create more litigation and more costs. I have seen the deterimination of costs in some cases take years to resolve. This has no effect on access to justice, you are still fronting the money and by the time you get it back, its probably too late. Simply put, costs after the fact is not helpful, a US style system may help, but I don't want to go into a long discussion about the benefits of the Public Defender system vs the legal aid system we have now.

- If a general immunity for the crown for awards of costs is removed, get ready for a massive increase in all fines, including speeding tickets. If the Crown is going to pay costs for the innocent, it is going to seek costs from the guilty. which means that every time you decide to go for the trial option on your speeding ticket, you are going to raise the potential downside by a LOT. Do you really want our crown prosecutors to be marking down their hours reviewing the officer's notes? I question whether that is desirable, or even constitutional. It is the right of every accused to hold the crown to their standard of proof, So would you impose a cost on an indivdual just to make the crown prove their case? This might actually be great for getting guilty pleas (but bad for society), because the potential cost to the indivdual for even minor offences will skyrocket. I strongly disagree with that.

- Further to the above point, would that spill over to other enforcement activities? If you miss a flight because the guy at the airport decided that there was something suspecious in your bag, but it turned out to be beef jerky, is the crown expected to buy you a new flight? and if it wasn't beef jerky, are you also going to get a bill? If a container at the port of vancouver sets off a drug dog. and they hold it for a day before releasing it cause it was clean, do you get to sue the crown for economic loss? Heck, why don't I just sue the crown for the time lost at a RIDE checkpoint? If you want to see unworkable? thats it. You want to see economic stimulus for lawyers? that it.

- what happens if you plead guilty to a lesser charge? costs against you?

- There is also the issue of collections... do you really think that a lot of our guilty criminals can afford those costs awards? i doubt it, and then who is going to pay for them? everyone.

Even in private disputes, there are general concepts of acting reasonably. If the police have PC, they arrest, if the Crown has a reasonable prospect of conviction, they proceed. Government activity should be based on objective standards and not economic incentives, if you think traffic enforcement is bad now... Imagine if the crown can get costs for speed traps.

Again. its not about one guy.

Michael Bryant didnt' get his legal costs back from the Crown. Are you saying that he should?

Some interesting points when comparing to the USA. Judges DAs etc IIRC there get elected and to get re-elected they have to show that they collect not pay out or acquit. There are people still in jail for life after DNA evidence later found proved them innocent. An acquittal messes up the judges / governors batting average and raises the possibility of wrongfull conviction lawsuits. While I an very much against the persecution of a person wrongly charged I don't plan on moving to the USA for justice.

The problem is getting the right balance. If the police are too lenient on excessive force charges more people will use excessive force, not a good thing. If they are too strict, innocent people die.

Maybe we should collect ten cents from every man woman and child in Canada to create a wrongful prosecution defence fund ($3M) to be administered by Open Gambit and Firestart. Is the problem that big?

Re Crooked lawyers. They exist just like crooked plumbers, taxi drivers, shoe salesmen etc. If you want a good lawyer YOU have to do YOUR homework and you have to be realistic. If a lawyer says he can get you $5M for spilling a coffee in your lap RUN away from him. It didn't happen and it won't happen.

 

[FiReSTaRT]

OG, you're really scraping the bottom of the barrel if you're bringing Bryant into this - a system insider, someone who's been rubbing shoulders with people who would have been investigating him and prosecuting him and someone who can easily afford whatever actually comes out of his pocket - someone who had a PR campaign smearing the reputation of the other party almost before the cops got sent to the scene.. On the other hand, you've got your poor working stiff, making too much to qualify for legal aid but whose family will be kicked out of their home if they have to pay to keep his record clean, so he accepts a plea bargain, a criminal record and jail time because unlike Bryant, he cannot afford justice in this country. Thomson was lucky that his case got the attention of the sport shooting community and many pitched in to assist him. Imagine if he had to pay for his legal defense out of his pocket. That just brings us to the following arguments:

1) Castle doctrine would reduce the likelihood of a person's life being ruined for defending his life/home/family

2) Something has to be done about cops laying BS charges as a punitive measure. It's a hornet's nest but bottom line is that justice has become unaffordable for most Canadians.

 

[nobbie48]

OG, you're really scraping the bottom of the barrel if you're bringing Bryant into this - a system insider, someone who's been rubbing shoulders with people who would have been investigating him and prosecuting him and someone who can easily afford whatever actually comes out of his pocket - someone who had a PR campaign smearing the reputation of the other party almost before the cops got sent to the scene.. On the other hand, you've got your poor working stiff, making too much to qualify for legal aid but whose family will be kicked out of their home if they have to pay to keep his record clean, so he accepts a plea bargain, a criminal record and jail time because unlike Bryant, he cannot afford justice in this country. Thomson was lucky that his case got the attention of the sport shooting community and many pitched in to assist him. Imagine if he had to pay for his legal defense out of his pocket. That just brings us to the following arguments:

1) Castle doctrine would reduce the likelihood of a person's life being ruined for defending his life/home/family

2) Something has to be done about cops laying BS charges as a punitive measure. It's a hornet's nest but bottom line is that justice has become unaffordable for most Canadians.

I agree with you in principle but what country can we use for a good example. Not the USA IMO. In Britain I read that you can get charged with a weapons offense if you keep a small paring knife in the glove box of your car to peel an apple.

I do sympathize with the people charged but how many times does this happen each year and what is the total legal bill?

My concern is that we open the door to using sledge hammer to kill a gnat. I think something has to be done because a person shouldn't lose their home over over zealous policing but what is the true cost in dollars for these self defence charges? It isn't happening every day.

 

[OpenGambit]

OG, you're really scraping the bottom of the barrel if you're bringing Bryant into this - a system insider, someone who's been rubbing shoulders with people who would have been investigating him and prosecuting him and someone who can easily afford whatever actually comes out of his pocket - someone who had a PR campaign smearing the reputation of the other party almost before the cops got sent to the scene.. On the other hand, you've got your poor working stiff, making too much to qualify for legal aid but whose family will be kicked out of their home if they have to pay to keep his record clean, so he accepts a plea bargain, a criminal record and jail time because unlike Bryant, he cannot afford justice in this country. Thomson was lucky that his case got the attention of the sport shooting community and many pitched in to assist him. Imagine if he had to pay for his legal defense out of his pocket. That just brings us to the following arguments:

1) Castle doctrine would reduce the likelihood of a person's life being ruined for defending his life/home/family

2) Something has to be done about cops laying BS charges as a punitive measure. It's a hornet's nest but bottom line is that justice has become unaffordable for most Canadians.

I thought the point was that people that get charged and have their charges dropped because the Crown has no reasonable prospect of conviction should get their fees reimbursed. I obviously picked Bryant because if a rule is going to have any meaning, it has to be applied equally, its not about whether YOU think someone is deserving or not. And the fact that you think Bryant should be carved out shows how arbitrary and bias you are.

Castle doctrine is just your political agenda, since that obviously wouldn't help the chinatown guy.

Thats the thing, if you want a good system, you need good rules, and it appears to me that you are unable to come up with a principle that actually works.

 

[OpenGambit]

My concern is that we open the door to using sledge hammer to kill a gnat.

This is essentially my point. Yes people pay fees, yes it sucks, no that doesn't mean we blow up the entire criminal law system for a solution that isn't going to fix anything.

 

[FiReSTaRT]

Castle doctrine would be a good place to start and a pretty surgical solution. Proper guidelines for our police services so they don't use charges as a punitive measure would be another. As for making justice less inaccessible to your Average Joe.. I don't know enough on the subject but something definitely needs to be done - open up the profession (straight undergrad program as it is in many countries?), simplify the procedures(?), that's where OG could chime in with something constructive

 

[OpenGambit]

Castle doctrine would be a good place to start and a pretty surgical solution. Proper guidelines for our police services so they don't use charges as a punitive measure would be another. As for making justice less inaccessible to your Average Joe.. I don't know enough on the subject but something definitely needs to be done - open up the profession (straight undergrad program as it is in many countries?), simplify the procedures(?), that's where OG could chime in with something constructive

I do plenty of contructive things in my real life that help real people, I certainly don't feel the need to justify myself to someone who just likes to complain about the system and doesn't do squat.

 

[mlc]

[h=1]“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”[/h]
Who counts, and who doesn't?