On Interruptions

On Interruptions

My friend Bushnell Keeler…said an artist needs at least four hours of…uninterrupted time, to get one good hour of painting done. …Every interruption is like a knife stab in the middle of thought and getting into it. You have to start again. …It’s horrible. These days there are interruptions around every corner. Almost every second. 

David Lynch, David Lynch Teaches Creativity and Film, Masterclass.com, 2019, Lecture 4, Creativity and the Writing Process

Interruptions are the plague of modern professional life.

You do not have to be subject to the unrelenting intrusion of electronic devices – doomed to spend your waking hours being buzzed and prodded at the whim of others. 

If you want to produce anything of substance, you have to focus. This means creating a protective environment that insulates you from distractions – a space that allows you to collect your thoughts and to come up with creative solutions for difficult problems.

Close your door. Put away your cell phone. Turn off your e-mail.

Inform your office and your clients when you do not want to be disturbed.

                                                                     

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Advocacy (Part Six): Organization

Advocacy (Part Six): Organization

In the fray of trial, disorganization yields anxiety and frustration. Disorganization also fuels negative perceptions with respect to your competency. 

Every exhibit should be properly accounted for on a running exhibit log.

Every document has a proper place in a trial binder. Counsel should be able to locate effortlessly any necessary material.

Checklists are also useful for ensuring that counsel do not overlook important questions or arguments.

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Advocacy (Part Five): Composure

Advocacy (Part Five): Composure

Litigation is mentally taxing work. The court process involves a commitment by all parties to resolve contentious and emotionally charged disputes in a solemn setting. The stakes are often high and the outcomes uncertain. Demanding and difficult personalities come with the territory, along with stress and frustration. 

Through it all, advocates must maintain self-control.

A loss of self-control signals disrespect for the Court and the other parties involved. Counsel must keep their emotions in check and not succumb to temper tantrums or emotional outbursts.

Maintaining an even keel is also critical for staying focused. Litigation demands a steadiness of mind under pressure. Counsel cannot afford to be distracted by a loss of composure.

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Advocacy (Part Four): The Human Element

Advocacy (Part Four): The Human Element

The criminal justice system is administered by human beings, not computers. While the decision-making process for each actor is governed by defined core principles, there may be significant individual variation in their application.

Everyone brings a distinctive pattern of behaviour and way of thought to the exercise of their role. Each person has their peculiarities, preferences, strengths and weaknesses.

For the advocate, behavioural idiosyncrasies matter. Counsel must tailor their approach to take into account the human element when advocating on behalf of a client.

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Criminal Law and Literature: Ethan Frome (USA, 1911)

Criminal Law and Literature: Ethan Frome (USA, 1911)

I had the story, bit by bit, from various people, and, as generally happens in such cases, each time it was a different story.

Edith Wharton, Ethan Frome, Penguin Classics Deluxe Edition, New York, 1911, at page 1

At the turn of the twentieth century, a visiting engineer endures a harsh New England winter in a remote farming village. As he picks up his mail at the local post office, his curiosity is piqued by the striking appearance of Ethan Frome – a ruined, twisted hulk of a man whose grim expression conveys despairing resignation. After making casual inquiries with several locals, the engineer slowly begins to piece together the disturbing circumstances surrounding Ethan’s “accident” some twenty-four years earlier. 

Through the bleak setting of an impoverished and isolated rural farmhouse and an oppressive winter climate, Wharton examines the impact of our environment on our mental health. Ethan’s well-being is compromised by a lack of meaningful human connection and intellectual starvation. This is a theme that echoes for counsel regarding solitary confinement in our correctional facilities. 

The story is a case study of an emotionally abusive relationship. The manipulations of Ethan’s wife Zenobia serve as a stark reminder that harmful abuse may be psychological, as well as physical. The practice of law is as much about understanding human nature as it is mastering the law, and literature assists us in recognizing underlying patterns of behaviour. Zenobia is a prime example of individuals who use toxic psychological tactics to exert influence over others.

Wharton also reminds us that we have less control over our lives than we like to admit. As Ethan learns, life imposes burdens on us that are out of our control and influence the choices that we make. The neat and tidy narratives that we tell others are usually imposed after-the-fact upon the messier, more chaotic truth.

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Criminal Law and Literature: Do Androids Dream of Electric Sheep? (USA, 1968)

Criminal Law and Literature: Do Androids Dream of Electric Sheep? (USA, 1968)

…we stand between the Nexus-6 and mankind, a barrier which keeps the two distinct.

Philip K. Dick, Do Androids Dream of Electric Sheep?, Ballantine Books, New York, 1968, at page 141

A devastating nuclear war has triggered a mass extinction of animals and blanketed much of Northern California with radioactive dust. Most survivors have emigrated to off-world colonies, encouraged by the promise of a fresh start and a personal android to assist them with settling into their new environment. 

Some androids, however, have dreams of their own. Following a bloody rebellion, eight intellectually superior models have made their way to Earth in search of a better life, hiding in plain sight amongst the remaining human population. The only one standing in their way is Rick Deckard, a bounty hunter hired by the San Francisco Police Department to detect, and terminate, rogue androids.

Phillip K. Dick’s novel is a rich tapestry of philosophical ideas about the legal regulation of artificial intelligence and what it means to be human in the face of AI. Deckard realizes that the line between humanity and AI has blurred irrevocably as he develops romantic feelings for one of the next-generation androids.

Through the creation of false memories in AI, Dick considers the malleability of our own memory, and the fragility of identity when memory is manipulated or destroyed. Dick also encourages us to untangle our identity from our possessions and recognize the extent to which our actions are driven by concerns about what others think of us.

The androids’ limited four-year life span serves as a reminder of the transience of life. Their desire to seek fulfilment echoes our ambition to realize our aspirations before our little time is used up.

Other considerations

-      Dick’s novel was the basis for Ridley Scott’s landmark science fiction film Blade Runner (1982) and Denis Villeneuve’s worthy sequel Blade Runner 2049 (2017).

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Advocacy (Part Three): Courage

Advocacy (Part Three): Courage

Advocacy requires courage – a resilient steel-frame foundation beneath the exterior façade. 

Advocates hold the line with respect to the fundamental principles of the criminal justice system even when it is unpopular to do so. Advocacy is not a popularity contest nor an exercise in self-promotion.

Advocates are not deterred by aggressive behaviour. Advocates adopt psychological armour and are not distracted or intimidated by techniques designed to undermine their confidence. 

Advocates learn to accept fear and to push through it, rather than deny its existence. As stated by Neil Gaiman:

            …being brave doesn’t mean you’re not scared; it means you do it anyway. 

Neil Gaiman Teaches the Art of Storytelling, Masterclass.com, 2019, Lecture 2, Truth in Fiction

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Advocacy (Part Two): Accept the Uncertainty

Advocacy (Part Two): Accept the Uncertainty

Everyone has a plan until they get punched in the face.

                                                                        Mike Tyson

A criminal trial, like life itself, is an improvisation. 

When a trial begins, you are live on the air. You are responding in real time to a dynamic situation where there may be no clear course of action. Your pre-trial plan may have to be set aside when unforeseen issues arise. 

Litigation demands a high degree of comfort with uncertainty and an ability to adapt quickly to changing circumstances.

It also requires an acceptance that the best course of action may only reveal itself with the benefit of hindsight. 

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Advocacy (Part One): Developing Your Own Style

Advocacy (Part One): Developing Your Own Style

As with creative writing or playing an instrument, in legal advocacy you have to find your own voice.

Learn by observing others, but also recognize that imitation will only take you so far. You dilute what you have to offer by pretending to be someone else.

Develop an advocacy style that is consistent with your personality and your values.

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Legal Writing (Part One): Pay by the Word

Legal Writing (Part One): Pay by the Word

The first place that I start is …with the idea that instead of being paid by the word, I am paying by the word, that the fewer words I can use to tell my story the better, that compression, that economy, all of these things are good.

Neil Gaiman, Neil Gaiman Teaches the Art of Storytelling, Masterclass.com, 2019, Lecture 7, Short Fiction

Neil Gaiman’s advice is also applicable to legal writing. Words are a precious commodity, a valuable resource to be used only when necessary.

A written submission should be a succinct and precise analysis of the issues, not a meandering display of excess verbiage. 

Pay by the word – keep it lean.

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Improper Crown Opening Addresses

Improper Crown Opening Addresses

Defence counsel must be vigilant to guard against improper Crown opening addresses. At a minimum, an improper Crown opening will warrant a corrective instruction from the judge. In more egregious cases, a Defence application for a mistrial may be appropriate. 

When listening to the Crown’s opening address, Defence counsel may want to keep in mind the following comments from a unanimous Court of Appeal in R. v. Mallory, [2007] O.J. No. 236 at para. 338:

It is well established that the opening address is not the appropriate forum for argument, invective, or opinion. The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case… Simply put, "the Crown's opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call": R. v. Griffin at para. 31. At the opening of the trial the rules constraining the Crown "should apply with even more vigour" than at the closing when by then the jurors have heard and seen all about the case: R. v. Griffin at para. 23. (citations omitted) 

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Final Submissions (Part Six): It's All About Reasonable Doubt

Final Submissions (Part Six): It's All About Reasonable Doubt

The crux of final submissions in a criminal trial is whether there is a reasonable doubt as to the accused’s guilt based on the evidentiary record.

It is useful for defence counsel to reiterate that the onus is on the prosecution to prove an allegation beyond a reasonable doubt. The starting point in the analysis is that the accused is presumed to be innocent. There is no burden on the defence – the accused is not required to testify nor to produce any evidence in response to an allegation.

The Crown must address any weaknesses in its case, and explain how the evidence is sufficient to quell any reasonable doubts. 

The Defence must articulate how the prosecution has failed to eliminate all reasonable doubts. In lengthy trials, it is helpful for defence counsel to keep a running list of specific points that raise reasonable doubts about the accused’s culpability. 

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Final Submissions (Part Five): Improper Use of a Constitutional Right Against an Accused

Final Submissions (Part Five): Improper Use of a Constitutional Right Against an Accused

It is improper for a Crown Attorney to use a constitutional right against an accused at a criminal trial. Defence counsel must be vigilant to guard against Crown submissions that insinuate that an accused has done something wrong, or is less worthy of credit, for exercising a constitutional right.

For example, generally the Crown is prohibited from referring to the fact that an accused has access to the police investigative file prior to testifying. As a unanimous Court of Appeal stated in R. v. Gordon, [2012] O.J. No. 4059 at para. 6:

            Crown counsel…seemed to invite the jury at one point in his closing to draw an inference against the appellant's credibility because the appellant had the benefit of full disclosure and hearing the Crown's case before testifying. At the outset of his charge to the jury, the trial judge emphatically advised the jury that no such inference could be drawn. The trial judge made it crystal clear to the jury that they should disregard that submission and that the appellant, like all accused, was constitutionally entitled to disclosure and to know the case for the Crown before testifying. …

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Final Submissions (Part Four): Improper Inflammatory Remarks

Final Submissions (Part Four): Improper Inflammatory Remarks

Inflammatory: Tending to arouse anger, hostility, passion…

Dictionary.com

Defence counsel must be on guard against inflammatory remarks during the Crown’s closing submissions.

Tapping into the well of negative emotions surrounding an allegation of criminal misconduct is akin to the Crown putting its thumb on the scale when trying to prove its case. The gaps in the prosecution’s case must not be bridged by anger - speculation fueled by hostility has no place in a criminal trial.

Inferences consistent with innocence may be overlooked when improper closing remarks stir up a cloudy haze of antagonistic feelings against the accused.

Useful references:

-      R. v. Vallieres,[1970] 4 C.C.C. 69 (Que. C.A.), at p. 82:

[I]n a trial before a jury, no evidence can be presented, and no statement may be made by counsel for the Crown, which might induce a jury to base a conviction upon psychological or passionate grounds which might affect the most objective and just treatment of the accused, in accordance with cold reason …               

-      R. v. Roberts (1973), 14 C.C.C. (2d) 368 (Ont. C.A.), at p. 370:

It has been said on many occasions that the paramount duty of the Crown prosecutor is to see that justice is done, not to strive for a conviction. Certainly, he ought to refrain from language which is likely to inflame the jury and to divert the jury's attention from the real issue that they have to decide.

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Crown Election (Part One): Hybrid Offences Are Deemed Indictable Unless and Until the Crown Elects to Proceed Summarily

Crown Election (Part One): Hybrid Offences Are Deemed Indictable Unless and Until the Crown Elects to Proceed Summarily

The prosecution must choose whether to proceed summarily or by way of indictment when an accused is charged with a hybrid criminal offence.

Prior to the Crown’s election at the accused’s first court appearance, a hybrid offence is deemed to be indictable. As Justice Fish stated, speaking for the majority of the Supreme Court of Canada, in R. v. Dudley, 2009 SCC 58 at para. 21:

…hybrid offences are deemed to be indictable unless and until the Crown elects to proceed summarily. Thus, speaking for the Nova Scotia Court of Appeal in R. v. Paul-Marr, 2005 NSCA 73, 199 C.C.C. (3d) 424, at para. 20, Cromwell J.A. (as he then was) explained that "where an offence may be prosecuted by either indictment or on summary conviction at the election of the Crown, the offence is deemed to be indictable until the Crown elects to proceed by way of summary conviction...". Likewise, in R. v. C. (D.J.) (1985), 21 C.C.C. (3d) 246, at p. 252, MacDonald J., speaking for the Prince Edward Island Supreme Court, Appeal Division, stated that "in the case of a hybrid offence once the Crown elects to proceed by way of summary conviction the offence is no longer deemed to be an indictable offence". And in Canada (Attorney General) v. Trueman, P.C.J. (1996), 83 B.C.A.C. 227, at para. 13, once more for a unanimous court, McEachern C.J.B.C. held that hybrid offences "are deemed by s. 34 of the Interpretation Act ... to be indictable [and] remain indictable unless the Crown elects to proceed by [page581] summary conviction". (Emphasis added throughout.)

Useful references:

·     Interpretation Act

s. 34(1) Where an enactment creates an offence,

(a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment…

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Final Submissions (Part Three): Don’t Refer to Case Law When Closing Before a Jury

Final Submissions (Part Three): Don’t Refer to Case Law When Closing Before a Jury

Counsel should refrain from referring to case law in their final submissions before a jury.

It is the role of the trial judge, not counsel, to distill the necessary legal principles from the jurisprudence for the jury.

The jury must remain focused on the evidentiary record and not be distracted by the factual circumstances in unrelated cases. The details of other cases may have the potential to inflame and prejudice the jury against the accused.

In R. v. Drover, [2000] N.J. No. 36, the Court of Appeal overturned the appellant’s conviction for sexual assault due to the Crown’s improper closing remarks to the jury. The Crown’s final submissions included extensive references to the factual circumstances and verdicts in the high-profile prosecution of another individual convicted of similar offences. Roberts, J.A., speaking for a unanimous Court at para. 16, affirmed the following comments of Townsend C.J.N.S. in R. v. Cook (1914), 23 C.C.C. 50 (NSCA), concerning the use of previous cases:

 ... It would be highly inconvenient and calculated to mislead the jury if counsel on each side had the right to read from books the law as laid down in other cases, where the facts and issues were not the same. It would not be possible for untrained laymen to understand all those nice distinctions which are present in most cases. On the Judge, and on him alone, lies the responsibility for directing the jury in point of law, and, if he goes wrong, he can always be corrected. If the jury must take the law from him, what good can come from counsel reading and interpreting the law in any other way? It can have but one result, if it is of any weight - that would be to confuse the minds of the jury, and, therefore, should not be permitted.

Useful references:

R. v. Charest, (1990) 57 C.C.C. (3d) 312 (Que. C.A.) at p. 330:

…Applicable principles of law should be left for the judge to explain; when reference to the law is necessary for the purpose of making an argument, the law should be accurately stated.

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Final Submissions (Part Two): It’s Not About Politics

Final Submissions (Part Two): It’s Not About Politics

Crown counsel must not inject political commentary into their final arguments at a criminal trial. It is improper for the prosecution to refer to government policies, social movements, or the perceived prevalence of certain crimes in the community during closing submissions. 

The sole focus of a criminal trial is whether the prosecution has tendered sufficient admissible evidence to prove the specific allegation against the accused beyond a reasonable doubt. The decision-making process must remain focused on the admissible evidence and the governing law.

If Crown counsel makes reference to current political trends in the justice system to add force to their closing submissions they may compromise the fairness of the trial and a mistrial may follow.

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Final Submissions (Part One): It's Not About You

Final Submissions (Part One): It's Not About You

Counsel are not permitted to personalize their final arguments by providing opinion evidence or by drawing upon information that is not part of the admissible record. When counsel start injecting their personal knowledge or judgments into their submissions, they are acting as a witness rather than an advocate.

When drafting your final submissions it may be helpful to remember that:

Your personal views about the evidence are not relevant. Instead of saying: “I believe” or “I think”, say “The Defence submits that…”;

Your factual submissions must be grounded in the evidentiary record, not your personal knowledge; and

The spotlight is on the governing law and the evidentiary record, not on you.

Useful references:

  • R. v. Tomlinson, 2014 ONCA 158 at para. 96:

…counsel, whether prosecuting or defending, are not permitted to give evidence in their closing submissions: R. v. Smith (1997), 120 C.C.C. (3d) 500 (Ont. C.A.), at para. 26. This prohibition includes providing an explanation, not otherwise in evidence, for the failure of an accused to testify. (emphasis in original)

  • R. v. Boudreau, 2012 ONCA 830 at para. 16:

…The Crown must not … express personal opinions about either the evidence or the veracity of a witness…

  • R. v. Browne, 2017 ONSC 5796 at para. 58:

…If…counsel has given evidence, a trial judge has a duty to correct the…transgression.

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Presentation Matters (Part Four): Mastery of Language

Presentation Matters (Part Four): Mastery of Language

Mastery of language affords remarkable power.

Frantz Fanon, psychiatrist.

…Whoever writes English is involved in a struggle that never lets up even for a sentence. He is struggling against vagueness, against obscurity, against the lure of the decorative adjective, against the encroachment of Latin and Greek, and, above all, against the worn-out phrases and dead metaphors with which the language is cluttered up.

George Orwell, novelist.

Mastery of language is a fundamental skill for an advocate.

Counsel’s command of language is critical for instilling confidence in clients. Insufficient attention to formality may undermine a client’s assessment of your capabilities.

Poor choice of language may also serve as a barrier to meaningful communication. Empathetic communication requires the selection of words that convey respect and understanding, rather than judgment. Furthermore, counsel must be wary of technical jargon that may confuse and alienate our clients.

Judges also have high expectations with respect to the formality and precision of counsel’s language. A judge should be focused on counsel’s arguments, not distracted by counsel’s sloppy language or inappropriate use of slang. 

When playing the role of advocate, counsel must strive to communicate clearly and effectively.  A powerful expression of an idea or a concept that resonates with a judge or a jury may turn a case in your client’s favour.

Other considerations:

-       Read broadly to expand your vocabulary and to enhance your ability to express your ideas. 

-       Debrief your verbal and written interactions with others and refine your approaches. If you put your foot in your mouth, use it as a learning experience and remember that you are the only one who is keeping a running tally of your greatest verbal blunders.   

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Conditional Discharges for Unlawful Parental Discipline

Conditional Discharges for Unlawful Parental Discipline

The following cases may be of assistance to counsel when advocating for a conditional discharge for a parent facing a sentencing hearing for the use of unlawful discipline:

R. v. F.J.H., [2017] B.C.J. No. 197 (S.C.) – The offender entered a guilty plea for a charge of assault with a weapon for striking his 13-year-old daughter once in the leg with a belt. On appeal, Meiklem, J. granted the offender a conditional discharge with probation for six months.

R. v. T.F., [2016] B.C.J. No. 129 (P.C.) [trial decision only - sentencing decision reported in associated media coverage] – A father and mother were convicted for assault with a weapon for striking their 14-year-old daughter on the buttocks with a plastic mini-hockey stick and a skipping rope after the daughter sent nude pictures of herself to her boyfriend. The judge granted the offenders a conditional discharge with probation for twelve months. 

R. v. J.B., [2015] N.J. No. 312 (P.C.) – The 32-year-old offender assaulted his six-year-old stepdaughter by grabbing her by her upper arms, lifting her off the floor, and slamming her against a wall. The offender plead guilty and sought counseling. The judge granted the offender a conditional discharge with probation for twelve months. 

R. v. V.P. , [2014] O.J. No. 4152 (C.J.) – The offender assaulted her 10-year-old son by striking him in the nose. She had a prior finding of guilt for assaulting another family member. The judge granted the offender a conditional discharge with probation for two years. 

R. v. D.W., [2014] B.C.J. No. 822 (P.C.) – The offender assaulted his 11-year-old daughter on two occasions out of a “misguided attempt…to administer discipline…” (para. 6). On the first occasion, he slapped her face twice with an open hand and then struck her with a belt once on clothed buttocks. On the second occasion he struck her two times with a belt on her clothed buttocks. The judge granted the offender a conditional discharge with probation for fourteen months.  

R. v. C.J.D., [2012] Y.J. No. 21 (T.C.) – The 26-year-old offender assaulted his 30-month-old stepson. Frustrated with the young child’s crying, the offender spanked the victim, lifted him up and dropped him on the bed, and covered his mouth. He entered a guilty plea and sought counseling subsequent to the incident. The judge granted the offender a condition discharge with probation for twelve months. 

R. v. Prosper, [2012] N.J. No. 321 (P.C.) – The 30-year-old offender struck her 4-year-old daughter out of frustration. The judge granted the offender a conditional discharge with probation for twelve months. 

R. v. J.F.C., [2006] N.S.J. No. 37 (S.C.) – Crown appeal against sentence for a charge of assault with a weapon dismissed. The offender struck his 8-year-old son repeatedly (“ten to twelve times”) with “what was probably a broom handle” (para. 4). The judge granted the offender a conditional discharge.

R. v. Brown, [2005] Nu. J. No. 13 (C.J.) – The offender hit her pre-teen foster child on more than one occasion out of frustration with the child’s lying. The victim’s glasses were broken and the offender was not forthcoming with respect to the number of assaults. The judge granted the offender a conditional discharge and placed her on probation for six months. 

R. v. Bielenik, [1999] O.J. No. 4104 (C.J.) – The 34-year-old offender, upset with his 12-year-old daughter’s repeated lying, strapped her with a belt three times on her thighs and forearm “more out of anger and frustration than out of a considered controlled form of discipline” (para. 65). The family had engaged in counseling subsequent to the incident. The judge granted the offender an absolute discharge.

 

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