Updated July 2023
Before practicing law on with TLR, I practiced criminal defence work. When the subject comes up, clients usually perk up. Often, I hear the comment "I understand why you changed" or "you must be happy to be out of that." While these statements are true (I am happy to be managing our three locations), people are often surprised to hear my reasons.
I actually liked most of my criminal defence clients (with some exceptions, of course. In that type of work, one couldn't help but come across socio or psychopaths). They were people who, for various reasons, were stuck in poverty or had come upon hard times. While a large majority of my clients were Indigenous, many were not.
I left criminal defence work because I had become frustrated and disillusioned with our justice system. Going through law school, I was led to believe (or maybe, I really wanted to believe) that principles of fairness would govern the system. After I began my articles at a criminal defence firm, I quickly realized that, while at times the system could be fair, overall, it was not.
Don't just take my word for it. The Supreme Court of Canada was blunt in its criticism of the current system in 2017 in R v Jordan. When discussing problems with delays in the system, the court had this to say:
Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to the ever-increasing delay. This culture of delay "causes great harm to public confidence in the justice system"… It "rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system."
It is important to note that every provincial prosecution office across the country argued that, while there were problems, they were acceptable. For me, it was a the-king-has-no-clothes moment. Finally, the system is under scrutiny.
Delays are not the only problem. The way police and prosecution charge individuals is equally problematic. Whenever anyone is charged with an offence, either the police or the court impose "bail" conditions until the matter is dealt with (which until Jordan could take years). The conditions would often include an abstain-from-alcohol clause, a curfew, and a do-not-contact condition. An accused also had to either notify the police or ask the court's permission to change their address.
While these conditions, at first glance, seem reasonable, they imposed significant obligations on people who are the least able to manage them. People who live in poverty don't have a stable address. They couch surf and manage their lives on a day-to-day basis. So they would inevitably breach the conditions of their release, which would mean that, in addition to the initial charge, they would end up with several "breach of order" charges which would inevitably lead to criminal convictions. Once you start having convictions, you become known to the police as a criminal. So police scrutiny increases. If another charge is laid, more conditions are imposed because, you guessed it – you have a lengthy criminal record. The cycle continues. In the end, the justice system ends up manufacturing criminals.
I often argued (in vain) that imposing a bunch of conditions on people living in poverty would only create more problems. Who cares if someone charged with an offence is out after 11 pm? What harm are they causing?
Former Chief Justice McLachlin who retired from the Supreme Court in 2017 gave several interviews at the time. In one, with Micheal Enright, she had the following to say about how our system fails our Indigenous youth.
"We need to look at alternatives… we take kids that are pretty innocent sometimes and we make them into criminals through putting them in prisons… story after story of people who start off with a minor offence... gradually a person is encumbered with a huge record of administrative offences… and their lives are lost and they're basically in and out of jail the rest of their life."
We all want justice. We all feel that everyone should play by the rules. For most of us, it's easy. We are gainfully employed. We have family and friends, and our lives are stable. But for many, these realities don't apply. Be it because of systematic discrimination, addictions, or simply low intelligence. I had clients who score below functioning on tests. These social problems are serious, and I have no solutions. However, I can guarantee that turning them into criminals (more than they should be) is only making matters worse.
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact one of our lawyers at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).
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