The Criminal Lawyers Association was among a select group of organizations invited to make submissions to Justice Iacobucci on the following topics:

• TPS policies, procedures and practices
• TPS training, and training at the Ontario Police College
• Equipment used by TPS
• Psychological assessments and other evaluation of TPS police officers and officer candidates
• Supervision and oversight
• The role of the Mobile Crisis Intervention Teams (MCIT) currently employed by the TPS
• The role of the TPS Emergency Task Force
• Best practices and precedents from major police forces internationally (in Canada, the United States, the United Kingdom, Australia and other jurisdictions)
• Available studies, data and research

The CLA’s submissions were the product of countless hours of effort on the part of Anita Szigeti, Breese Davies, Sean Robichaud, Simon Borys and many others.

Jusitce Iacobucci’s final report can be found here which includes 84 recommendations which spell out changes in training and equipping of police to better deal with people in crisis.

The Criminal Lawyers Association submissions to the Independent Review can be found below.

CLA Submissions on TPS Use of Force 2014

1. LSUC Rule 6.03(8) permits second opinions, but it is an exception to Rule 6.03(7) prohibiting you from approaching or communicating with a represented person except through the retained lawyer or with that lawyer’s consent. Stay within the Rules.
2. When contacted, explore whether a second opinion is needed. Many are just frustrated that “I don’t know what’s happening.” If communication is the issue — and often it’s the only issue — encourage the client to raise his concerns with his lawyer. That may solve the problem, you can explain, without spending the time, effort, and money for a second opinion.
3. Do not misinform the client that “you must first tell your lawyer.” There is no such requirement. The client is entitled to seek the second opinion in confidence. While you may adopt a practice, as some lawyers do, that you will not give an opinion unless the retained lawyer is informed, inform the client that this is your practice, not a requirement.
4. That said, encourage the client to inform the retained lawyer. To know the case, you ideally would have the retained lawyer’s cooperation. The client might insist, however, on receiving the opinion in confidence. If so, respect the client’s decision, but be sure to emphasize that the strength of your opinion will be limited by the history provided.
5. Only in a rare case will you be as informed as the retained lawyer. Insist that the client identify “the documents, the facts, and the history the second opinion will be based upon.” If that cannot be done, you might wisely choose not to provide an opinion.
6. Emphasize that you are there to give your frank opinion on the case, not to criticize or endorse the lawyer. Ignore any venting. Keep the meeting focused.
7. Unless you have permission, do not discuss the case or the fact that the client contacted you with anyone, especially the retained lawyer: Rule 2.03.
8. If asked “how much would it cost to hire you?” explain that “this meeting is only for a second opinion, you already have a lawyer, and I not allowed to have that discussion.” Rule 2.09(10) prevents you from agreeing to any retainer.

With the proper exercise of professional judgment, second opinions can and should be a healthy part of your practice. When the opportunity arises, don’t hesitate.

Craig Penney, Criminal Defence Lawyer
craig@craigpenney.com

Craig Penney is a criminal defence lawyer practicing in the greater Toronto area since 1994.
http://craigpenney.com

We especially want to acknowledge and thank Constable Mike Klarenbeek who selflessly risked his own life on Friday, no one knows what could have occurred but for his heroic efforts.

Our justice system consists of multiple stakeholders who all have vital roles to play. Our system works best when we honour and respect all participants equally.

We are pleased to hear reports that Constable Klarenbeek is now out of ICU and is on the mend. To Constable Klarenbeek and his family our best wishes on a speedy recovery.

The agreement arises from, and is designed to avert the growing crisis in the administration of criminal justice in Ontario arising from LAO’s modernization efforts. The agreement contains key commitments rooted in professionalism arising from a mutual recognition of our aligned interests by virtually all lawyers that provide criminal justice services in Ontario. Under this agreement, we are stronger together in advocating on behalf of the indigent accused for increased capacity and resources to address the inequalities within the criminal justice system resulting from chronic under-funding and policy implementation that impedes the ability of accused to access quality legal representation.

The CJPA commits the CLA and the LAO Lawyers to work together to develop protocols that include defining our respective roles in the criminal justice system, advocating for greater certificate coverage, support by the CLA for the voluntary recognition of the LAO Lawyers collective bargaining rights by Legal Aid Ontario, tariff review and mutual support for job action should it become necessary.

The agreement also addresses the concern that LAO Lawyers are a threat to the services that our membership provides. They are not. LAO’s modernization efforts are the threat combined with unrealistic tariff caps and financial eligibility thresholds that are an embarrassment. The agreement will further address the memberships concerns by self-defining our aligned interests and commitment to criminal justice in Ontario for the most vulnerable and marginalized people in this Province rather than someone else. Importantly, under the CJPA the LAO Lawyers have recognized that a vibrant, independent private-sector is essential to the fair administration of justice of criminal justice in Ontario and will support the CLA’s efforts to ensure that this promise, contained in the MOU that ended the boycott, is honoured.

The CJPA is a necessary step in re-setting LAO’s moral justice compass.

Letter to the Editor – Re: Legal Aid Ontario releases pioneering mental health strategy: Goar

Legal Aid’s sudden commitment to improving the level and quality of legal services it provides to the mentally ill is encouraging, but sadly long overdue, and, ultimately, flawed.

The Criminal Lawyers’ Association membership, which is made up of over 1000 private defence counsel, many of whom take Legal Aid files, sees this announcement as window dressing to hide the grossly underfunded resources that are required to actually address the legal problems of the mentally ill on the ground.

As anyone who has spent years representing the mentally ill before courts and tribunals will tell you, the real solution to the actual legal needs of the mentally ill is patience and commitment, and that requires time and money.

The one thing conspicuously absent from this announcement is the additional money for it, from the provincial government. Without new money, existing funds for indigent defence must be diverted and this necessarily means reducing funding to other vulnerable groups who depend on Legal Aid’s assistance. These groups include refugees, child protection matters, and persons asserting their innocence–groups who are brought into the legal system largely in response to the same government, one might add, that funds both their prosecution and their defence.

Indeed, we question whether this initiative is the wisest use of Legal Aid monies. In the age of specialization, the proclaimed expanded use of existing untrained staff lawyers at Legal Aid, for example, in an attempt to bring them up to speed to fill a hole does not make sense. Counsel of choice, with many more years of experience actually fighting for the rights of the mentally ill, are already out there, at the hospitals and at hearings and trials, taking these cases daily. Private counsel, taking Legal Aid matters are better, already specialized, and more cost-effective

at dealing with legal problems than this creation of a new, soon to be entrenched bureaucracy. Legal Aid’s own studies have borne this out in the past.

One would have wished for a more balanced reporting of this issue.