Not Guilty

Hey all,

I have to apologize for the long pause between entries. 2L is off to a shotgun start; I'm beginning to believe at least the first two parts of the mantra "in 1L, they scare you to death; in 2L, they work you to death.." (it finishes with "in 3L, they bore you to death) but I hope that doesn't happen!

One reason that this September feels a little different is that it's not entirely a "back to school" feeling for me because my duties at the clinic are continuing pretty much unchanged from the summer as I'm there as a credit student - so I only actually have 2 conventional classes and only even set foot in the law buildings for the first time last week.

That's not to say that I've lacked getting a legal education though; quite the contrary. Yesterday was probably the most intensive legal experience I've had to date, as well as being a day I'll never forget. It was the day of my first trial.

This summer, I had several matters that were scheduled to go to trial, and so while I had prepped for these types of events before, for whatever reason the actual proceeding never went ahead in its entirety - either a key Crown witness wouldn't show up so the prosecution would have to withdraw the charge, the trial would be delayed for one reason or another, or my client would decide to accept a deal on the day of. Yesterday though, things finally lined up and we moved forward.

The case I had was an assault + threatening death charge in a domestic context. My client was accused of pushing and slamming his wife against a wall in one altercation, and then threatening her with death in a separate incident several months later. Since the first day I met him in March, the client denied both offences, and so there was no room at all to negotiate a plea. My review lawyer said that the facts were such that the trial could really go either way; an acquittal was possible but by no means guaranteed, so the client was taking a significant risk by proceeding to trial (though if you believe you're innocent, what choice do you have?) The trial had also been adjourned (delayed) twice; once before he retained us, as the court gave him some more time to find representation, and once by the Crown in August because the complainant (the legal term for the victim) was out of the country. This meant that our file had "priority" that day at the court, and so because all the necessary parties were in attendance, we were set to go.

When you think of courts, or courthouses, the image that comes to mind is of a large, stately building with lots of classical architecture, columns, the whole bit. Courtrooms are elaborately designed rooms with large wooden tables and a judge at the top complete with a gavel. My trial debut, at the Ontario Court of Justice at College Park in downtown Toronto was nothing like this. The "courthouse" is actually located inside an office building that also has a mall/grocery store on the ground floor and subway access in the basement. The courtroom, 506, was a windowless square room with 4 rows of benches for the public, two tables at the front with a couple mismatched Staples swivel-chairs, and a raised platform for the judge, who in Canada wears a red sash but carries no gavel. The only markings on the walls included a replica of the Canadian Coat of Arms above the judge's seat, and some lines and numbers on a side wall demarcating distances in feet and metres (used by lawyers to help get witnesses to identify distances - e.g., you stand on the 5 foot line and say "was the accused about this far away from you?)

On the day of my client's trial, the court wasn't too busy. The complainant and some of her family were there, as well as a couple police officers who investigated the incidents, and a few other members of the public who were observing or who came for other matters and moved to different courts when their matters were "traversed" away so that my client's trial could begin. My client, as well as myself, came alone (which was probably for the best given that I was already pretty nervous even without an "audience" to try and impress).

I'm not going to do a "play-by-play" commentary of the events, mainly out of respect for the participants of the trial on both sides. The sequence of events was that the Crown called the complainant as well as a police officer to testify, I cross-examined both of them (sometimes stopping to compare what they said to a video statement that was given as well as other evidence), and then I called my client to testify, went through his story, and allowed the Crown to cross-examine him in turn. The Crown and I both concluded with closing statements, and the judge gave his decision. The whole process took from about 10am until 4:30pm, with an hour lunchbreak stuck in the middle. In addition to the materials that I had prepared for the trial (my questions, closing arguments, etc.) I brought a 8.5x11 yellow pad of paper and used about 20 pages of scrawled notes of witness testimony, fresh ideas & arguments, and counterpoints to the Crown's arguments.

As you can tell from the title of this post, Justice Horkins (a man in his late 50s who was incredibly fair & generous to both sides) found my client not guilty on both charges. I'll get into his reasons a bit below, because I think they communicate a very important message about our justice system, but as a general note, the whole experience was very surreal for me. Most of us (self included) typically only ever see courts on TV or in movies, and to be an active participant in an actual criminal trial was something I'll never forget. While not at all as theatric or dramatic as Law & Order, the entire process did conform more or less with what you'd expect at a criminal trial: The prosecution arrives with a case and the defence tries to answer it. There were several moments during the trial, like when I first rose to cross-examine or object to a Crown's leading question, that I almost disbelieved that I was actually there doing what I was doing. I think it's because even after 1L, you come out feeling like you've only just barely scratched the surface of what there is to know in an area of law and there's no way you could feasibly be qualified to be taking part in a proceeding where someone's liberty, reputation, and/or future employability is at stake, but somehow, I managed. At the end of it all, I was just so tremendously relieved that I had been given a set of facts where it was possible to get a good result for the client, and I was of some assistance in helping the system reach the right conclusion.

And this brings me to the reasons. Horkins J. focused on the themes of proof beyond reasonable doubt, and credibility. These types of cases, which boil down to "he said, she said" are difficult for judges, especially when there's minimal or no physical evidence in play as was the case here. He stated that at the outset, while it might be easy for him to simply compare the evidence given by the complainant with that of my client, and "believe" one or the other, or even find that one story is more "probable" than the other, that's not his job, nor the job of the justice system. His job is solely to assess whether the Crown has proven all the elements of the offences beyond reasonable doubt, a very high standard. The trial is an adversarial procedure that's not aimed at finding out the "truth" but testing the Crown's case against that standard. He said that the Crown and I both provided him with very useful submissions that allowed him to focus on these key issues, and weigh the evidence accordingly.

In terms of what happened (or didn't happen) in my client's case, Horkins J. found that the complainant appeared sincere in bringing her story forward, and while I had revealed some significant issues with her version of events, he didn't believe that she was fabricating the allegations (though he did concede it was a possibility). In terms of my client's evidence, he also stated that he had no reason to find that he was lying either, as his testimony was convincing and withstood cross-examination by the Crown, despite some very skillful attempts by my colleague to trip him up in cross-examination. With those factors in mind, he simply wasn't in a position to declare that the Crown had proven either allegation beyond reasonable doubt, and acquitted my client, who was extremely relieved to have the whole ordeal behind him. The Judge thanked the Crown and said that he always expects (and received today) strong submissions from an experienced prosecutor, and graciously complimented a "younger member of the profession" (me) on his excellent advocacy which he said was a "pleasant surprise."

When the judge left, I finally disclosed to both my client and the court clerk (who thought it was really cool a law student was appearing) that this was my first trial. Needless to say, I was elated to have this important milestone under my belt, but after having some time to think about everything, my feelings on the day have grown more nuanced.

The judge's words have started to sink in - especially his emphasis on proof beyond reasonable doubt, which became much more real after yesterday compared to just learning about it in a treatise or lecture. The allegations against my client were very serious, and the complainant told a story on the stand of a very troubled and unhappy family life. Having grown up in a family where domestic violence was unfortunately a major issue, it was difficult knowing that  it is certainly possible that my client was lying the whole time, and that perhaps he did abuse his wife, and that my efforts perhaps assisted him in evading accountability for that. And it's frustrating that except for the two of them, the Judge, the Crown, or I will never really know what happened. But at the same time, I'm at least partially consoled by the judge's reminder that the purpose of the system isn't to achieve that more ambitious outcome, but merely test an allegation against a high standard, which we have in order to protect the innocent or falsely accused from the possibility of the most severe type of sanction that our state & society has at its disposal.

The other way to look at my role is that if I left my client unrepresented, there's a much higher chance that the system would "break down" and he might have been found guilty even on a lower standard of proof. And perhaps more than anything, this trial has taught me what a privilege it is to be in a position to represent someone in that system, to try to make it work the way it should, and to be trusted with the lives of others in your hands (or perhaps more accurately, in my thoughts and arguments). No matter where I go or what area of law I practice, for this reason, I think I'll always maintain a pro bono workload of at least a few criminal or family cases - if only so that I can continue to use the gift of a legal education to uphold this trust, and touch the law of real people, and not just the law of high courts or arcane statutes.

Thanks as always for all of your support (and endurance to read my infrequent but lengthy posts!)