Kingston, Ont.A criminal defence lawyer in this province is, by every economic incentive that structures the lawyer's working day, paid to resolve files. The lawyer is paid a retainer at the start. The lawyer bills against the retainer at an hourly rate. The lawyer, when the retainer is exhausted, must either replenish it from the client's pocket or close the matter. The matter closes most cleanly, most quickly, and most predictably, when the matter resolves on a guilty plea to a reduced charge in exchange for a specific sentence the Crown has, in pre-trial discussions, agreed to recommend. The matter closes most slowly, most expensively, and most uncertainly, when the matter goes to a contested trial. The lawyer, given a choice between the two, has every reason, personal, professional, and financial, to prefer the first. The client may, in a specific file, have every reason to prefer the second. The conversation between the lawyer and the client, on most files, is shaped by the asymmetry.

This is not a story about corrupt lawyers. The country's defence bar is, on the whole, an honourable profession populated by people whose work has been getting harder for thirty years and whose pay has not kept up with it. The story is about an economy the country has not been willing to redesign. The economy rewards resolution and punishes fight. The fight, on the modal client's file, is what the client would, on a fair examination of the law, be entitled to. The economy, when it punishes the fight, transfers the cost of the fight from the lawyer to the client. The self-represented client, by the time the client understands this, is already in the room alone.

The Crown wants the file off the desk

The Crown, in this country's modal courthouse, is similarly disposed. The Crown's office is, by every available metric, understaffed for the docket it carries. The Crown's success is measured, internally, not on conviction rate but on closure rate. A file resolved on a plea is, in the Crown's career, the equivalent of a small win. A file that goes to trial is, in the same career, the equivalent of a large risk. A file that is withdrawn, which is to say, dropped, is the kind of outcome that, in the Crown's promotion file, will require explanation. The Crown is, in any honest description, also incentivised toward resolution. The Crown's preferred resolution is a plea. The lawyer's preferred resolution is a plea. The accused, on most files, is the only party in the room with an interest in another outcome.

The economy rewards resolution and punishes fight. The fight, on the modal client's file, is what the client would, on a fair examination of the law, be entitled to.

The withdrawal that should have been

This magazine has, in its growing file, several matters in which the documented evidence, taken at face value, supports a full withdrawal of all charges before trial. The Crown's own synopsis concedes facts that, on any honest reading, render one or more of the charges unsustainable. The defence file contains documentary contradictions of the police narrative. The Charter breaches enumerated in the files are not marginal. They are, on the case law, exactly the kind of breaches that have produced full withdrawals in other jurisdictions in recent years. The matter, on the law, should be over.

The lawyer's advice, on those files, has nevertheless been, repeatedly, to consider a plea to a lesser charge with a non-custodial sentence. The reasoning, when explained to the accused, has been pragmatic. A plea is a known outcome. A trial is a risk. The lawyer's experience is that risk, in this courthouse, with this Crown, on this docket, sometimes produces outcomes the case law would not have predicted. The accused, hearing the advice, is being asked to accept a guilty record for a matter the accused did not commit, on the lawyer's risk-adjusted view of how the courthouse will, on the day, behave. The accused, in many files, has accepted. The accused has, in those cases, walked out of the courthouse with a criminal record that the country's own database now contains. The matter is closed. The file is, in the lawyer's words, resolved.

The self-represented accused who refuses

An accused who declines to retain counsel, or who has retained and parted ways with counsel because the counsel's advice was to plea on a file the accused believes is winning, is in a position the system does not know how to handle gracefully. The accused, alone, must now do what counsel would have done: produce the disclosure, organise the exhibits, draft the motions, plead the Charter argument, and conduct the cross-examination. The accused, on most files, is doing this without legal training. The accused is also, on most files, doing it on a Charter argument that is, on the case law, sound.

The country's response to this accused is not generous. The court will provide duty counsel, briefly, for procedural matters. The court will, in some matters, appoint amicus curiae. The court will not, in any matter this magazine has reviewed, provide counsel of the accused's own choice. The accused remains alone. The accused, if persistent, sometimes wins. The accused, if persistent, sometimes loses. The accused, in either case, has done the work the system was designed to do on the accused's behalf.

What a country could fix

A country with a serious commitment to the right to a full defence would fund a public-defender system parallel to the Crown's office, on a budget scaled to the actual rate at which the country's criminal docket presently confronts unrepresented or under-represented accused. The system would pay defence counsel a salary, not an hourly rate. The system's counsel would be evaluated on full file outcomes, including withdrawals, not on closure rate. The system would, on the available comparative data from other jurisdictions, produce a measurable rise in withdrawals and acquittals in matters the current bar resolves on plea. The country has not built this system. The country has, in the meantime, expected the private bar to do the work the country has not budgeted for. The bar has, in the modal file, responded as any private actor would. The matter resolves. The closure rate is high. The country's stated rights guarantee remains, on the page, intact. The file is closed. The accused is, on the country's database, convicted.

The lawyer, who recommended the plea, was honest. The Crown, who offered the plea, was professional. The bench, who accepted the plea, was efficient. The accused, who took the plea, was alone. The country, on the morning the plea was entered, was open for business.