Gun Registry

[rbacon]

The fact is if the so called government cannot protect the law abiding citizens then it will be up to the citizenry to protect themselves. Better to be tried by 12 and true than packed out by 6. The law of the jungle will decend upon Toronto.

[justcrowing]

The fact is if the so called government cannot protect the law abiding citizens then it will be up to the citizenry to protect themselves. Better to be tried by 12 and true than packed out by 6. The law of the jungle will decend upon Toronto.

<{POST_SNAPBACK}>

Oh but did you not know that I cannot defend myself when attacked because if I caused any injury to my attacker I would be charged with assault. If someone breaks into my home and they get injured, I can be sued. Cute, I would say!! Doncha just love Canadian laws!

[rbacon]

The dead don't sue. Always fire the warning shot into the floor after you dispatch your assailent. And always demand trial by a jury of your peers.

[theloniusfleabag]

Dear rbacon,

The dead don't sue. Always fire the warning shot into the floor after you dispatch your assailent.

A friend of mine was actually given this advice by a friend of his who happened to be a cop. Not the shooting part, mind you, for it is well nigh technically impossible to shoot someone 'in self defence' in Canada. There is so much less paperwork if the assailant is dead.

[theloniusfleabag]

Dear Argus,

I think we need to build more courts and more prisons, and we need to start prosecuting those who use violence against the innocent to the fullest extent of the law. And that means no parole except in special circumstances, and harsh sentences for those who use firearms and harm others.

I am in total agreement. The problem is, how many people would agree to a rise in income taxes to pay for this? Or a 2% hike in the GST? These things are unpopular with voters. Promising to do something at election time is one thing, but ask a politician how he intends to pay for them is something else, when it is actually an important indicator as to whether or not it will be done.

[rbacon]

Thelonious all Canadians have the Right to self defense. Just make sure it is self defense. In Alberta case law, an inmate in maximum security, used a concealed weapon and a preemptive strike to kill his tormentor, this case went to the SCC in 04, was little reported on by the MSM and the SCC dismissed all charges. And stated that he had the right to preserve his own life. So don't listen to cops who are merely union driven law enforcement always protect your own life and your families. By any means available and always demand trial by jury.

[Argus]

Dear Argus,

I think we need to build more courts and more prisons, and we need to start prosecuting those who use violence against the innocent to the fullest extent of the law. And that means no parole except in special circumstances, and harsh sentences for those who use firearms and harm others.

I am in total agreement. The problem is, how many people would agree to a rise in income taxes to pay for this?

I think that if they were convinced the money would actually be spent on this most Canadians would go along with a tax hike. But I don't think a tax hike is needed. Take the money out of the money which currently goes to graft and pork.

[Guest eureka]

Prthaps we should think more about not incarcarcerating people for minor offences and obviate the need for more prisons.

A Canadian is already several times more likely than a European to spend time in prison or acquire a criminal record than most Europeans. And we know what effect on reducing crime the astronomical rates of incarceration have in the United States.

[FTA Lawyer]

The Liberal philosophy is not working that should be evident to even the most left wing citizen. Let a life sentence mean exactly that you will stay in jail for murder until you die. Forget the legal illegal gun, if any weapon is used in the commission of any crime you will recieve 10 years in jail just for having a weapon. And no plea bargains allowed.

<{POST_SNAPBACK}>

rbacon,

Ironically, in Canada a life sentence is truly a life sentence. That is, there is no set number of years after which the life sentence expires. Whether in or our of custody, you are always serving your life sentence, and can be immediately returned to prison for even an alleged parole violation. What you are after is no parole (i.e. keep offenders behind bars for the entirety of their life sentences).

It's an attractive idea, but the problem is the cost. Not sure how we could possibly pay for what you are suggesting.

As far as no plea bargains, that will never (and should never) happen. What you must understand is that most often, the Crown is only interested in a plea bargain if they have a particular reason to do so, like:

- Evidentiary problems with their case

- Missing or recanting witnesses

- Serious risk of harm to witnesses or informants if trial goes ahead

- etc.

The standard of proof of "beyond reasonable doubt" is not easy to meet, so many times the Crown will make a plea bargain because it is much better to get something than to blow all of your resources on a trial and get nothing.

And the harsh reality is that the entire justice system would screech to a halt if every person accused of a crime had to go to trial...which is what would happen with no plea bargains...every accused would have nothing to lose by running their trial...only opportunity to gain.

As it is, in Provincial Court in Calgary we are often looking at 8-10 months to get a trial date...with the current amount of plea-bargains. If no plea bargains happened, we'd be looking at the 3-4 year range for trial dates within a matter of a few weeks. Then you'd have every single case being thrown out of court for failure to conduct trial within a reasonable time (the current standard is up to 12-16 months...assuming no delay is caused by the accused...after which the Court will likely throw out the case).

FTA

[FTA Lawyer]

Prthaps we should think more about not incarcarcerating people for minor offences and obviate the need for more prisons.

A Canadian is already several times more likely than a European to spend time in prison or acquire a criminal record than most Europeans. And we know what effect on reducing crime the astronomical rates of incarceration have in the United States.

<{POST_SNAPBACK}>

And this is why they brought in the amendments to the Criminal Code in 1996 which direct incarceration to be the last resort, and allow for conditional sentences...two measures which many people seem to passionately oppose.

I'm not disagreeing with you...just pointing this out.

FTA

[Argus]

As far as no plea bargains, that will never (and should never) happen.  What you must understand is that most often, the Crown is only interested in a plea bargain if they have a particular reason to do so, like:

- Evidentiary problems with their case

- Missing or recanting witnesses

- Serious risk of harm to witnesses or informants if trial goes ahead

- etc.

You have already posted that something close to 90% of cases are settled by plea bargain. It is patently obvious that we do not have anything like the kind of court facilities required to try a great percentage of these cases. So don't even try and tell us that Crowns don't do plea bargains except in special cases. They are clearly required to do plea bargains in most cases. I'm willing to bet that in their regular reviews their supervisors criticise Crowns who do not plea bargain enough cases.

And the harsh reality is that the entire justice system would screech to a halt if every person accused of a crime had to go to trial...

So build more courtrooms. I'm willing.

which is what would happen with no plea bargains...every accused would have nothing to lose by running their trial...only opportunity to gain.

Yes, because judges are notoriously lenient. Tougher judges would solve that problem.

Mind you, the more obvious solution would be a massive reform in the criminal justice system which took most of the lawyers out of the system and greatly simplified the laws and rules of evidence.

[FTA Lawyer]

As far as no plea bargains, that will never (and should never) happen.  What you must understand is that most often, the Crown is only interested in a plea bargain if they have a particular reason to do so, like:

- Evidentiary problems with their case

- Missing or recanting witnesses

- Serious risk of harm to witnesses or informants if trial goes ahead

- etc.

You have already posted that something close to 90% of cases are settled by plea bargain. It is patently obvious that we do not have anything like the kind of court facilities required to try a great percentage of these cases. So don't even try and tell us that Crowns don't do plea bargains except in special cases. They are clearly required to do plea bargains in most cases. I'm willing to bet that in their regular reviews their supervisors criticise Crowns who do not plea bargain enough cases.

...

Mind you, the more obvious solution would be a massive reform in the criminal justice system which took most of the lawyers out of the system and greatly simplified the laws and rules of evidence.

<{POST_SNAPBACK}>

Argus,

We've crossed our wires a bit here. The vast majority of cases end by way of guilty plea, but not necessarily a "plea bargain" (i.e. where the Crown offers a deal in order to invite a guilty plea).

Many times the accused pleads guilty and argues for one outcome while the Crown argues for a different (and much more harsh) one...and it is then up to the judge to decide what to do. This is not a plea bargain.

I don't remember where I put the stats up, so I'll apologize just in case the way I wrote it suggested that the percentage of guilty pleas was actually plea bargains.

And as far as Calgary goes...the Chief Crown expects his minions to be able to justify why they have shown leniancy and entered a plea bargain. There is certainly no pressure to make deals...it's totally opposite. And our judges are almost certainly the toughest in the country...particularly our Court of Appeal.

Although, maybe I'm proving your point...'cause I'm pretty sure Calgary doesn't have a proportionate per capita gun crime problem like Toronto's. (And yet we have piles of guns out here...must be the registry that's keeping us in line)

But what the hell, we've always been crazy out here in the West...and scary too...did I mention we're scary? Whatever you Torontonians do, don't take any advice from us...or vote for political parties that have any connection to our province whatsoever...end of the country it would be...

As far as your suggestion for sweeping reform...what would simplified rules of evidence do to keep gangsters off the streets and guns out of criminals' hands? And I'm not just asking because you seem to be wanting to put me out of business!

FTA

[Guest eureka]

But what the hell, we've always been crazy out here in the West...and scary too...did I mention we're scary? Whatever you Torontonians do, don't take any advice from us...or vote for political parties that have any connection to our province whatsoever...end of the country it would be...

Definitely the most insightful comment in the history of the Forums.

[PocketRocket]

Both parties are talking about harsher penalties, which is good, but that still leaves one major problem; you gotta catch the bastards first.

Take the Boxing Day Shooting, for example.

They have two kids in custody, out of an estimated 10 or 15 who were shooting.

It is uncertain as to whether the 2 in custody did any of the shooting.

Hard to impose a tough penalty when the perpetrators are still out on the street.

[FTA Lawyer]

But what the hell, we've always been crazy out here in the West...and scary too...did I mention we're scary? Whatever you Torontonians do, don't take any advice from us...or vote for political parties that have any connection to our province whatsoever...end of the country it would be...

Definitely the most insightful comment in the history of the Forums.

<{POST_SNAPBACK}>

Hey, everyone's entitled to a little sarcasm once in a while...

FTA

[Argus]

You have already posted that something close to 90% of cases are settled by plea bargain. It is patently obvious that we do not have anything like the kind of court facilities required to try a great percentage of these cases. So don't even try and tell us that Crowns don't do plea bargains except in special cases. They are clearly required to do plea bargains in most cases. I'm willing to bet that in their regular reviews their supervisors criticise Crowns who do not plea bargain enough cases.

...

Mind you, the more obvious solution would be a massive reform in the criminal justice system which took most of the lawyers out of the system and greatly simplified the laws and rules of evidence.

<{POST_SNAPBACK}>

We've crossed our wires a bit here. The vast majority of cases end by way of guilty plea, but not necessarily a "plea bargain" (i.e. where the Crown offers a deal in order to invite a guilty plea).

Many times the accused pleads guilty and argues for one outcome while the Crown argues for a different (and much more harsh) one...and it is then up to the judge to decide what to do. This is not a plea bargain.

The only incentive I can see to plead guilty is to get a reduced sentence, and certainly there appears to be a noted lack of enthusiasm on the part of Crowns - at least in Ontario, to charge people under the firearm laws (certainly here in Ontario), especially those which carry mandatory minimum sentences. But as already noted, slack, limp wristed judges are part of the problem.

As far as your suggestion for sweeping reform...what would simplified rules of evidence do to keep gangsters off the streets and guns out of criminals' hands?  And I'm not just asking because you seem to be wanting to put me out of business!

<{POST_SNAPBACK}>

Nothing personal. You actually seem to be a reasonable fellow - for a lawyer. :-)

It's the ethics of lawyers I dislike, or rather, the required ethics of the profession. I understand the logic behind those required "ethics". But the result is that, for example, a lawyer working for Bernardo - or Hitler, for that matter, is "ethically" required to do their utter best to keep them from being punished and put them back on the street. It's very hard to reconcile that with any sense of morality.

But really, so many cases should be straightforward and handled quite quickly, but aren't because of the complexities of laws and evidence - and the lawyers involved. I think most of these street criminals should be given someone to 'advise" them, whose sole interest is justice - not the well-being of the offender, nor the desires of the Crown, but justice. They should make sure the suspect/offender is not being mistreated, and advise them of what they ought to say before their rapid visit to a judge. Basic advice that anyone fairly intelligent would give. Someone who is caught in the act of knocking over a liquor store should be visiting a judge within a day or two and sentenced almost at once.

At least in a perfect world.

And I don't care how police got their evidence. If they broke a law, they should be punished, but the evidence should be admissible.

[FTA Lawyer]

You have already posted that something close to 90% of cases are settled by plea bargain. It is patently obvious that we do not have anything like the kind of court facilities required to try a great percentage of these cases. So don't even try and tell us that Crowns don't do plea bargains except in special cases. They are clearly required to do plea bargains in most cases. I'm willing to bet that in their regular reviews their supervisors criticise Crowns who do not plea bargain enough cases.

...

Mind you, the more obvious solution would be a massive reform in the criminal justice system which took most of the lawyers out of the system and greatly simplified the laws and rules of evidence.

<{POST_SNAPBACK}>

We've crossed our wires a bit here. The vast majority of cases end by way of guilty plea, but not necessarily a "plea bargain" (i.e. where the Crown offers a deal in order to invite a guilty plea).

Many times the accused pleads guilty and argues for one outcome while the Crown argues for a different (and much more harsh) one...and it is then up to the judge to decide what to do. This is not a plea bargain.

The only incentive I can see to plead guilty is to get a reduced sentence, and certainly there appears to be a noted lack of enthusiasm on the part of Crowns - at least in Ontario, to charge people under the firearm laws (certainly here in Ontario), especially those which carry mandatory minimum sentences. But as already noted, slack, limp wristed judges are part of the problem.

As far as your suggestion for sweeping reform...what would simplified rules of evidence do to keep gangsters off the streets and guns out of criminals' hands?  And I'm not just asking because you seem to be wanting to put me out of business!

<{POST_SNAPBACK}>

Nothing personal. You actually seem to be a reasonable fellow - for a lawyer. :-)

It's the ethics of lawyers I dislike, or rather, the required ethics of the profession. I understand the logic behind those required "ethics". But the result is that, for example, a lawyer working for Bernardo - or Hitler, for that matter, is "ethically" required to do their utter best to keep them from being punished and put them back on the street. It's very hard to reconcile that with any sense of morality.

But really, so many cases should be straightforward and handled quite quickly, but aren't because of the complexities of laws and evidence - and the lawyers involved. I think most of these street criminals should be given someone to 'advise" them, whose sole interest is justice - not the well-being of the offender, nor the desires of the Crown, but justice. They should make sure the suspect/offender is not being mistreated, and advise them of what they ought to say before their rapid visit to a judge. Basic advice that anyone fairly intelligent would give. Someone who is caught in the act of knocking over a liquor store should be visiting a judge within a day or two and sentenced almost at once.

At least in a perfect world.

And I don't care how police got their evidence. If they broke a law, they should be punished, but the evidence should be admissible.

<{POST_SNAPBACK}>

You are right that an offender gets credit for a guilty plea on sentencing (becuase it prevents victims from being dragged through the system and saves boatloads of taxpayer money and demonstrates an element of remorse) but this does not mean that the Crown is the one offering the incentive.

Sometimes, in the face of a good Crown case and a harsh Crown position on sentence, the best thing to do is not take a plea bargain, but plead guilty and argue for the best sentence you can get from the judge.

As far as your comments about "ethics" your concerns are common, but in my view a bit off the mark. It is wrong to confuse a lawyer's ethics with his or her duty to provide full answer and defence to the client. The basis of our adversarial system is that the truth (i.e. justice) is most likely to be found where both sides vigorously put forward their best case...in doing so, each adversary works as a direct counterbalance to the other, to prevent either side from unfairly controlling the process.

The concept of ethics puts up the boundaries within which a defence lawyer must operate. Ethics do not drive the vigorous representation of the client, ethics prevent a lawyer from acting inappropriately in pursuit of the client's best interests.

For example, if a client admits to me that he has committed a crime, he or she is nevertheless entitled to force the system to prove his guilt beyond reasonable doubt. If we didn't require this, then involuntary or fraudulent confessions would be the norm and people would be wrongfully convicted on a regular basis.

As such, I can test the reliability of the Crown's case through vigorous cross-examination and by forcing them to meet their obligations to run a fair trial. This is all pursuant to my duty to represent my client.

The ethical aspect comes in and dictates that where a client tells me he did it, I am ethically precluded from putting forward a defence theory that suggests that someone else did it, or from cross-examining in a way that suggests my client wasn't at the scene...even if that would be the best way to "get him off".

I am never entitled to mislead the Crown or the Court, and if my client or any witness does so, I am obligated to correct the misinformation or withdraw from the case.

The "morality" component that you refer to is in the fact that as a defence lawyer I will have times that my efforts at holding the Crown to task will result in an individual, whom I personally know to be guilty, walking free. What you need to understand though, is that I do not possess that knowledge as a member of "the people" or society at large. I only know he did it because he told me...and he only told me because of the strict principle of solicitor-client privilege.

If you take away the concept of solicitor-client privilege, the accused will simply never tell anyone he did it, so "the people" will be no better or worse off than if an accused is afforded the right to tell his lawyer in confidence.

And if your response is...well fine then, make the guy run his own "simplified" trial without the help of a lawyer who knows he did it but still tries to get him off, then our entire history of law says...okay, but then the victim has to prosecute by himself to keep the trial fair...you can't have a highly trained advocate on one side but not the other...destroys the notion of the adversarial system and destroys the idea of fair due process.

Your notion of sentencing the guy who knocks over a liquor store in a day or two is appealing...but you pre-suppose that we know who did it...and just because someone is arrested and charged, doesn't mean we know who did it.

Remember that David Milgaard was a slam-dunk case...or so the cops, Crown and Court thought. Evidence could put him at the scene of the crime, he had no alibi, and he had a previous related criminal record. Everything suggested that he was the guy who did it.

BUT HE DIDN'T...and he lost over 20 years of his life for this "mistake" of justice. Our system has it's problems and inefficiencies etc. but I prefer being able to feel confident that a person who gets put in jail is supposed to be there.

Finally, if the evidence is admissible, no matter how the police got it, we encourage lawlessness and truly thrust ourselves full-force into a police-state...where cops would be the most feared element of society, not criminals.

Canada takes a very balanced approach on this issue. In the U.S., any mistake by the cops leads to a "fruit from the poisonous tree" analogy and all subsequent evidence connected to the mistake is deemed inadmissible.

In Canada, we embark on a detailed analysis to determine if the evidence should be excluded when it has been obtained unlawfully. Where the evidence is "real" or physical like drugs or a gun and was otherwise discoverable, and the actions of the police are not blatant bad faith, the evidence usually remains admissible.

FTA