The dangerous right to remain silent

Bill Trudell
Welcome to “Sidebars” No. 1.

Delivering the John Sopinka Advocacy Lecture at the Ontario Criminal Lawyers’ Association in November, Chief Justice Beverley McLachlin commented on the “uncoupling” of defence counsel from the adversary system given the rise in unrepresented litigants.

The reduction in legal aid certificates, the expense of retaining counsel, the diminishing pro bono representations, and the litigants who decide they don’t want us are disturbing problems on the rise. The chief justice surmised that this uncoupling may foreshadow an unwelcome return to the inquisitional hearings of centuries past.

If we slowed down from our get-through-the-day, check e-mail lives, we likely could see it ourselves.

The problems are ours, as members of this profession. We need to “re-couple” before it is too late.

The adversary system as we know it will certainly erode. Judges will slip into the fray to fill the gap between the prosecution and the accused, and the system will suffer. Trials will become protracted creating further delay issues. Wrongful convictions will increase and costs will skyrocket.

Judges need to be proactive in appointing not only amicus, but also properly remunerated counsel, rather than becoming advocates in the case.

We ignore this erosion at our own peril, we cannot leave it to others to fix . . . we are the others.

Legal aid funding must increase and its delivery through the private bar not surrendered.

In an era when articling and mentorship seem to be in peril, perhaps using senior counsel to guide younger lawyers in matters would allow a two-tiered billing system, which would in some respect, cut fees, while allowing for much needed supervision and mentorship.

This profession has watched the criminal justice system be attacked, eroded, and reshaped by a prime minister who thinks in black and white, has little interest in criminal justice, and no vision beyond immediate political gratification for his law-and-order constituency. They do not understand the harm that he sows or the system that he is creating.

Omnibus legislation is rammed through Parliament with buried provisions unscrutinized and often misleading. Experts are ignored.

We know this, yet we allow it to happen.

Members of Parliament and senators who are members of this profession should know better but pass legislation that strips discretion, fills the jails, drives up costs across the board, and plays upon fear.

We have a prime minister who publically has stated that he wants a certain type of judge. He ignores a Supreme Court appointment process adopted by Parliament, that he created. And of course we still have a prime minister and minister of justice who publically insulted, to say the least, the respected chief justice of this country.

Have we forgotten this? There was a small chorus of concern months ago but it has slipped away into yesterday and complacency. If this had happened in another country, many lawyers would be unceasingly pointing fingers. Where are those fingers now? They are part of the hands we sit on.

While we are stationary, we might think about the onslaught of criminal legislation that has significantly increased mandatory minimum sentences in this country against an international trend. Such sentences have eroded the judiciary’s discretion in their ability to seek a balance and resulted in unfair criticism of those who seek to maintain a balance in our system.

Such sentences have restricted Crown counsel’s ability to withdraw offences or properly craft a resolution that considers the individual before them. The policy manuals of prosecutors now have added pages of rigidity. I suspect it has led the police to forgo laying charges.

Jails have become warehouses of an orange brigade of prisoners, bored, angry, and cross-tainted. Many are mentally ill. Many are young. Many are First Nations. Too many are women.

We know this is happening but we really do nothing about it.

Parliamentary democracy is being replaced by a presidential system that we support through acquiescence. If it doesn’t seem to affect us now, we don’t seem to be interested. That is a complaint lawyers make about the public that doesn’t trust us until they need us.

Our lives are dictated by social media. We are glued to keeping up with the latest technology and fascinated by electronic gossip. However, we allow the media to pre-try cases, print allegations as fact, and dwell on unsupported sensational accusations. We turn a blind eye to the lazy journalistic disclaimer, “nothing has been proven in court.”

Why are we not insisting that this disclaimer is not enough? It is the presumption of innocence and right to a fair trial that decides the issues that are part of our supreme law . . . the Charter of Rights and Freedoms.

We know this is happening. Why are we not collectively doing something about it?

We live in a new world of instant and uncontrolled messaging. People chat increasingly online. They forget about privacy. They discard discipline. Reputations are destroyed. We see this. We as lawyers know it is wrong. What are we doing about it or do we, professional problem solvers, decide that we can’t do anything about cyberspace?

Or, of more concern, do we ourselves engage in this frenzy, criticize judges, our colleagues, expose ourselves, jeopardize our clients’ privacy, and open ourselves up as targets online?

We need to do something about this.

I fear that this wonderful profession is becoming “uncoupled” from our proper voice.

In Shakespeare’s Henry VI, as we often hear Dick the Butcher opine, “the first thing we do, let’s kill all the lawyers," which as noted by scholars is the surest first step to tyranny.

I wonder whether Shakespeare would hesitate, in some measure, were he writing this passage today given our collective silence on many of the various forms of tyranny in our midst.

With respect, I really don’t think we have the right to remain silent any longer.

Updated with correction to Shakespeare quote.

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