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Say Pleas! The Real Risk of Wrongful Guilty Pleas in NAN courts

Friday May 16, 2014

All of us in this business have pretty different job descriptions.

It is much too simple, but still easy to say that defence lawyers try to keep people out of prison, prosecutors try to put them in, and judges decide who actually belongs there.

But one basic thing that we all agree on is that no one should be convicted of a crime – much less sent to prison for it – unless the legal process proves beyond a reasonable doubt that they’re actually guilty.

Point blank – that’s what all the rules are for. There is even a saying that Canadian justice would rather that 99 guilty people go free than one innocent person be unjustly convicted.

The cases when we get it wrong are big deals for us – media coverage, public inquiries, financial compensation for lost years that should never have been taken – and we vow to learn the lessons that these failures teach us.

Most, but not all, of the ‘big name’ wrongful convictions – Milgaard, Morin, Marshall Jr., Sophonow, Truscott – resulted from tainted evidence or biased investigations.

Sometimes it takes decades to unravel the truth about how these innocent people were found guilty for crimes they did not commit; and we duly tweak the trial system to make sure it doesn’t fail again in its fundamental job.

Thankfully, such cases seem rare in Canadian law. But wrongful convictions do not only happen in high-profile trials, and not only to people who are facing serious charges.

The most difficult, and perhaps most common, kind of wrongful convictions, I think, are those that hide behind an accused person’s own admission of guilt.

But why would anyone ever plead guilty to a crime they hadn’t done?

Imagine something like this: you wake up in the police lock-up, again. No way you’re getting out on bail, since home is a $500 plane ride away and your family has no more hands to lend.
The past month has been a haze of cheap highs and shelter beds, but you didn’t rob anyone, no matter what the police say.

Everyone was drunk, but you know you left that party before anything like that happened. Your lawyer is saying that a trial is a month away, minimum, but maybe, just maybe, the prosecutor would take a plea to simple theft. Release in a couple of weeks, nearly guaranteed! Now what do you do?

Less-than-reliable charges laid against poor people with (often long) histories of involvement with the criminal justice system, are, in my experience, the most at risk for wrongful convictions in our region.

Some of the main factors behind this sneaky disease include:

• Vanishing Bail

Options. While everyone is equally innocent until proven guilty, this status is much more difficult to assert if you are held in jail while awaiting your trial. Pre-trial detention is meant to be imposed only on those who pose real risks to public safety or who are likely not to show up for court.

But if you are someone who already has a criminal record, and are dealing with addictions and unstable housing, you will more than likely be living in a jail cell for the weeks or months it takes to arrange a trial.

Sadly, this description fits too many Anishinaabe in NAN courtrooms, and it puts immense pressure on people to take the earliest pathway out of prison, even if it means pleading guilty to charges that they would otherwise take to trial.

• Underfunded Defences.

The current Legal Aid system in Ontario does not provide more than summary legal assistance or duty counsel to people facing charges for which a jail sentence is not considered likely, and thus it is practically not realistic for serious legal defences to be mounted against such charges.

These restrictions also apply in the case of people who earn more than $10,800 per year (that’s $900 a month, or half the minimum wage for a full-time job).

These people do not financially qualify for a legal aid certificate, but may still not have anywhere near what it takes to hire a lawyer to defend them at trial. The question looms: defend yourself, or just plead out?

• Mistrust of the System:

Most criminal defence lawyers have had clients who believe, rightly or wrongly, that they will not receive a fair trial, and that there is no point in even trying to defend themselves.
Lawyers and judges do have a duty to make sure that all accused people who plead guilty are actually accepting responsibility for what they are charged with, but there is, it seems, something cruel about how we stop people from dealing with their cases in the quickest, least painful way.

In the United States, defendants in this situation can plead ‘no contest’, but Canadian law strictly expects people to admit the essential facts of what they are charged with, no ifs, umms, or buts...

Although it may not be possible to entirely prevent wrongful guilty pleas from happening, all of us do have a responsibility to make these injustices as rare, and as unacceptable, as faulty trials.

In the Nishnawbe-Aski Nation, this means more resources and understanding for people who are most at risk for being held in jail before their trials, or being arrested for breaching conditions of their bail that should never have been imposed in the first place (like alcoholics being ordered not to drink, for example, or house arrest for the effectively homeless). It means that we have to create more space, and breathing room, for people to foster their options when they are charged with committing a crime.

At the end of the day, no one should feel forced to convict themselves.

Have a question for our columnist related to law issues in northern Ontario? E-mail him at:

Simon Owen is a lawyer at Beamish and Associates in Sioux Lookout, and practices primarily in the areas of criminal defence law and community justice initiatives.

Most of the people and communities he serves are members of the Nishnawbe-Aski Nation, who continually inspire and challenge him to find justice both within and beyond (or in spite of) the Canadian court system.

Simon holds law degrees from the University of Victoria and the University of British Columbia, where his thesis work focused on moral and cultural communication in sentencing.

These columns represent the personal views of the author alone, and not of any organization that he may be associated with.

Nothing in these columns should be taken as legal advice; please consult a properly instructed lawyer for any legal issues you may have.

Some names and details in these columns may be modified to protect confidentiality.

Finally, the author is not Anishinaabe, and this column is not intended to explain or interpret any Anishinaabe words, concepts, or principles. The author humbly apologizes for any errors or misunderstandings that he may make when referring to Indigenous ideas

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