Reasonable Doubt: Fair trials require lawyers many people cannot afford
On August 4, 1961, an earnest Clarence Earl Gideon stood before a judge in Florida, accused of stealing $5 in change and a few loose bottles of beer and soda from a closed pool hall. His voice was too low to be recorded in many instances, but he told the judge that he was not ready to go to trial because he did not have a lawyer and felt he needed one. The judge asked him if he knew his matter was set for trial. He replied that he did. The judge then asked why he had not made arrangements to have a lawyer. Gideon replied that he did not have the money for a lawyer. He then requested that the court appoint a lawyer because the U.S. constitution provided him with that right. The trial judge declined to do so. Gideon was convicted and sentenced to five years in prison, the maximum legal sentence.
He appealed to the Supreme Court of the United States. Those nine judges agreed with Gideon. At his second trial, with a lawyer able to point the jury to weaknesses in the prosecution’s case, Gideon was acquitted.
Today in the U.S., any person accused of a crime has the right to a state-funded lawyer if he or she cannot afford one.
In Canada, we have a similar right, although it is not nearly as broad as in the U.S. Section 7 of the Charter of Rights and Freedoms has been interpreted to allow for state-funded counsel where the accused can prove that trial without a lawyer would be unfair and where the accused cannot reasonably afford a lawyer.
When Ivan Henry was acquitted of a rash of sexual assaults after serving 27 years in prison following a trial without a lawyer, he stood on the courthouse steps and told a reporter that he regrets not having a lawyer: “A trial without a lawyer…that’s like a boat without oars.”
In B.C., crimes are prosecuted by one of two agencies: the federal Crown or the provincial Crown. Each takes a dramatically different approach to applications for state-funded counsel.
The federal Crown often concedes that the accused cannot afford a lawyer, but that the trial will be fair even without one. While I might disagree with this approach, it is far more reasonable than the provincial Crown.
First, the provincial Crown concedes that, yes, a trial without a lawyer would be unfair. However, it questions whether the person could reasonably afford a lawyer. When the cut-off for legal aid financial eligibility is essentially minimum wage and a five-day trial can cost upwards of $25,000, many people cannot afford a lawyer. To pretend otherwise is to ignore the financial reality of a good portion of Canadians.
However, the Crown relies on a case called Malik. Ever hear the expression that bad facts make for bad law? This is one such case. A wealthy accused in the Air India bombing trial transferred millions of dollars in assets to his wife and children and then turned around and said he had no money to pay for his Cadillac team of defence lawyers. To get around this rather obvious problem, the judge imposed very strict financial criteria for people applying for appointment of counsel and found that Malik had not been prudent in his finances and that he had not satisfied the heavy burden of proving that he could not afford a lawyer by providing detailed financial information. This requirement for “detailed financial information” is often used as a technical basis for refusing applications for state-funded counsel, even when it is abundantly clear the person has no money.
These same criteria are applied to everyone in the province. It requires “extraordinary” financial hardship, as well as doing everything one possibly can to save for a lawyer.
A recent case illustrates this. Campbell Ernest Crichton was charged with 23 counts of sexual assault in connection with his physiotherapy practice between 1994 and 2011. Trial was expected to last nearly 10 weeks.
At the time of his application, Crichton was living in his mother’s basement and collecting welfare. He had five-figure debts for his line of credit, credit cards, arrears in child and spousal support, and household debts. His only asset was a 2006 Imapala that would be more expensive to repair than it would fetch if sold repaired.
The provincial Crown argued that Crichton could get a fair trial without a lawyer. The prospects of preparing to cross examine 23 alleged victims as well as a rash of police officers is daunting to even experienced lawyers, particularly when the law of evidence in these cases is so complex.
The provincial Crown further argued that he had not been prudent in saving money for a lawyer. A 10-week trial could cost close to $100,000. Did the provincial Crown actually expect that a physiotherapist with Crichton’s debts and bad name could save or borrow that money over the course of one to two years from charge to trial? If so, that position is greatly disconnected from both Crichton’s reality and that of typical working people in this province.
Fortunately (and I say this for the sake of all involved), Crichton received funding for counsel. This means a fair trial, cross-examination of complainants by someone other than their alleged perpetrator, and efficient use of expensive court time. Most importantly, it means the judge and the jury will have all the relevant information before them to make the correct decision. Arriving at that decision will not be hampered by the police or prosecution’s “tunnel vision” as has so often been blamed for wrongful convictions.
The provincial Crown has a team of lawyers with particular experience in these matters. The government pays thousands of dollars to fly them around the province to oppose applications for appointment of counsel. In many cases, it spends more money on flights, accommodation, and travel expenses than it would cost to pay for counsel to represent the person at trial anyway. Evidently, the government considers this to be a prudent way of spending tax dollars.
I have said it before in this column: if the state considers it to be worthwhile in the public interest to prosecute someone, and then spend hundreds of thousands of tax-payer dollars punishing, supervising, and (hopefully) rehabilitating that person in a prison, then the job has to get done right. This requires a lawyer to cross-examine witnesses, make legal arguments, and navigate a complex legal system on behalf of an often distraught and incapable accused.
In B.C., we are apparently doing well enough to turn down a $40 million offer for naming rights to B.C. Place. Hopefully, this means we can promise fair trials to people who cannot afford a lawyer.