The key to understanding your case
is to know the legal process
For it is process that is the starting point to every good defence. With every client and every file we follow a process. Our process is a kind of analytical paradigm used to evaluate your case from the bottom-up and then from the top-down.
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1. Evaluate the problem from your perspective.
In criminal justice the perspective of the police and Crown often dominates the case. Whether they admit it or not, the reality is, most Crown Prosecutors look at you as a villain and see the police as our heroic saviors. Many Crowns are so resistant to the perspective of the accused that there is little or no point in even communicating with them. Sadly, some members of the judiciary see things the same way.
In criminal justice, it is not unusual for the voice of the accused to be drowned-out or distorted by a presumption of criminality. Even some defence lawyers have trouble seeing their clients as any other than guilty reprobates.
To effectively defend your case, it is critical that your lawyer evaluate the problem from your perspective. This doesn’t mean your lawyer is to be reckless or willfully blind to your circumstances; rather, your lawyer should understand that accused people may not only be presumed innocent, but may in fact be innocent. Even if you are not innocent per se there may be a variety of reasonable explanations for why trouble occurred.
David Chow will genuinely listen to your side of the story. He will genuinely evaluate the case from your perspective.
2. Assess the obstacles to successfully defending your case.
The obstacles to any successful defence are numerous. As a starting point, you are accused by a State juggernaut that is responsible for financing the entire prosecution against you. Remember, the State constitutes the police, the Crown, Court administration and is even responsible for appointing and paying your judge.
Disclosure – or the information comprising the case against you – is controlled by the State. The Crown disseminates the information; the police control what information is contained within the Crown disclosure file. Oftentimes, the police have not investigated aspects of your case capable of exonerating you; rather, they have focused the investigation on information capable of supporting your conviction.
As your Calgary defence lawyer, David Chow evaluates every obstacle to successfully defending your case. This includes assessing the quality and completeness of disclosure, the stigma surrounding the charge(s), the policies and protocols underpinning the allegation(s) and the likelihood of successfully resolving your case without a trial.
3. Pursue and Review Disclosure.
In R. v. Stinchcombe the Supreme Court of Canada mandated that the Crown must disclose any and all information in the control of the State that may “potentially” assist you in making full answer and defence. The Supreme Court even stated that it is a serious breach of professional ethics for the Crown failing to disclose.
Despite the strong language, Alberta arguably continues to be a disclosure resistant jurisdiction. Though the Crown certainly discloses basic items, it routinely resists disclosure of other materials clearly in the police or State possession. A recent example of this is in the disclosure of instrument maintenance records pursuant to R. v. Kilpatrick.
Obtaining relief for non-disclosure is difficult, if not even impossible. A review of the jurisprudence highlights an unwillingness on the part of the Courts to remedy so called breaches of professional ethics in any meaningful way.
To defend your case, you need the case against you. Equally important, you need to understand that disclosure is created by the State – the very party who charged you is thus interested in your conviction.
4. Create a Paradigm for Success
Crafting your defence is a process. To successfully defend any case entails a plan for success. This involves identifying your defences and setting them into motion.
By way of example, in Alberta there is a requirement to file “notice” of your intent to challenge the introduction of evidence into trial as a result of a breach of your Charter rights. If you don’t have a plan, then you may fail to give notice. A failure to give notice could mean that you lose an avenue to defend the case. Other defences such as “alibi” and those pertaining to the use of experts and the introduction of documents require notice.
Sometimes – indeed oftentimes – the defence plan is simpler. Regardless of its complexity, knowing the plan is critical to success.
No strategy works unless it is executed.
David Chow is a Calgary defence lawyer who will execute your defence plan.
The practice of criminal defence is changing – sometimes for the better, sometimes for the worse.
Many Calgary criminal lawyers are selling a “team approach”; many are operating in larger defence firms or associations populated by numerous criminal defence lawyers. Notwithstanding that this appears favourable, you should be cautious about representation by lawyers practicing within larger firms due to conflict of interest. Conflict of interest occurs when your lawyer has acted for a witness, a co-accused or even when another lawyer within your counsel’s firm or organization has acted for a witness, a co-accused or perhaps even a family member or friend of a witness or co-accused.
The Crown and Court no longer easily tolerate conflict scenarios. The result of a retaining a defence lawyer with a conflict of interests is that he or she could be forcefully removed as counsel of record. This will delay the completion of your case and likely result in higher legal fees. Retainer a lawyer always costs money. It is not in your best interest to double-pay for your defence.
The benefit of hiring a lawyer who is not associated with others is that the likelihood of conflict is significantly reduced. I always make best efforts to asses each and every case for possible conflict.