Monday 7 January 2019

A LETTER TO A RUDE PROSECUTOR                                                   
Before I present the letter to you that I wrote and sent to the prosecutor,  I will give you background information about my training and experience as a court advocate.

As a deputy court bailiff in Toronto in the years 1960-1962, one of my jobs was to keep order in the courtroom. During that period of time, I listened to hundreds of cases in which lawyers argued their cases and the judge gave his rulings. I can’t think of a better way to learn law than how I learned it in that courtroom over the period of those two years.

In 1964, when Ontario Legal Aid began, the director of Ontario Legal Aid learned that I was representing friends in criminal courts as a court agent. He sent a message to me asking me to meet him. After we spoke, he asked me to make myself available to conduct investigations for the lawyers that were donating their time pro bono (for free) to represent persons charged with crimes. Since they weren’t being paid for their services, they didn’t want to use their own money to hire a private investigator so they would contact me and ask me to look into the background of the crimes supposedly committed by their clients. That year, Ontario Legal Aid then comprised of three persons—the director, his secretary and me.  We had a small office on King Street West in Toronto.

I will briefly describe two of my investigations of crimes that I investigated. for two lawyers  who were representing clients who had no money to pay them.

In the first case, a young man was convicted of murdering his mother and was sentenced to life in prison. His lawyer asked me to re investigate the crime. As a result of my investigation, I spotted very small specks of the victim’s blood on the wall next to her bed. The police didn’t form any opinion as to what those specks meant because they supposedly had an eyewitness to the murder. Because the foot of the bed had been pulled away from the wall, I concluded that whoever beat the woman with the wooden club was left handed. The man convicted was right handed and for that reason, if he had committed the the murder, he wouldn’t have pulled the foot of the bed from the wall. Further, if he had committed the murder after standing next to the wall, the blood specks coming from the club would have not have gone around the pillar behind  him that was next to the wall. The left handed man was the so-called eyewitness and when the police re-investigated the crime, they found spots of the woman’s blood on one of his T shirts. The innocent man was set free and the other man died before his trial.

The second case I investigated was the story of another lawyer’s client. He was  charged with capital murder. If he was convicted, he would have been hanged. He had previously made arrangements for a prostitute to spend the night in his apartment that was over a Chinese restaurant. She was to show up at the rear of his apartment at midnight after climbing up the fire escape at the rear of the building. She didn’t show up at midnight so be began drinking beer and when she was at the rear of the apartment at one in the morning, he was so drunk, he forgot that it was the prostitute at the kitchen window. He thought it was a burglar. He strangled her and when he realized what he had done, he dragged her though the opened kitchen window and put her on the sofa. He tried to revive her but she was dead. He called the police and they charged him with murdering her since they didn’t believe his story. He told the police that someone was in the lane running alongside the building who yelled out, “What’s going on up there?” He told the police that that person  could verify that he strangled her at the rear of the apartment and not in his living room. The police weren’t interested in his explanation. I was called upon to investigate his story. I concluded that since the lane was a dead end lane, whoever was in the lane at one in the morning was there to take a pee. There was a tavern around the corner so the next day I went to the tavern in the evening and made enquires as to who was in the lane after midnight the time of the murder. A man who was with the witness that early morning gave me the name of his friend. The witness was in the local jail and he gave me his written statement. The charged of capital murder was withdrawn and replaced with manslaughter. The lawyer’s client was sentenced to five years in prison and released after serving four years in prison.

Before I show you the nasty letter I sent to the nasty prosecutor, I will give you my background in law. As I said earlier in this article, I began representing clients in criminal courts who were charged with non- indictable crimes (misdemeanors) such as impaired driving, minor thefts, minor assaults, drinking under age etc. in 1963.  I was the first court agent—also referred to as a paralegal in Canada.

I never wanted to be a lawyer. Although there are many good lawyers about however, many of them are rude, overcharge their clients for their services, careless and some are dishonest. I didn’t want that reputation hanging around my neck like that of the Ancient Mariner’s Albatross.  I never had a shortage of clients since my fees were far less than any fees the lawyers charged their clients. 

Most of my clients were living in the Greater Toronto Area but many of them had court matters in twelve smaller cities in Southern Ontario and wanted me to represent them in those cities. I had hundreds of clients during my work as a court agent.

I practiced law in small claims, criminal, provincial offences and highway traffic courts along with both federal and provincial tribunals. I was in court on an average as many as fourteen times a month. I was a very busy man and made a decent living. Further, I could work out of my home and since my firm, Abatis Paralegal Services was incorporated, I could write off my home taxes since what expenses I paid for my house (gas, electricity, water and property taxes) could be applied as losses to my firm.

In 1969, I was asked to head a task force that was to advise the attorney general of Ontario whether or not innocent persons sentenced to prison for crimes they didn’t commit should be compensated. The members of that task force comprised of three legislators, three law professors, two criminal court judges, the chairman of the Law Reform Commission of Ontario, five criminal court lawyers in which one later became the chief justice of  Ontario, another later became a member of the Supreme Court of Canada, the third  later became  the first Ombudsman of Ontario .the fourth was the senior crown attorney( prosecutor)  of Toronto and the fifth was the director of Legal Aid.  None of them wanted to be the chairman since that role would take much their time. and since two of them knew me personally, they suggested that I be their chairman. They agreed and hence I became the chairman and was given the task of writing the Committee’s report. Later I was one of the two main speakers addressing a national crime conference in which I quoted from my report to the Attorney General. It took several years before compensation came to Canadians. One man who spent 24 years in prison for a murder he didn’t commit. He was awarded ten million dollars.  

In 1971, I was a speaker at a national law conference held in Ottawa. My speech dealt with the need for twenty-four hour duty counsel  to advise persons who were arrested and taken to a police station day or night. Three months later, Ontario Legal Aid brought it into Ontario and soon after, it was in every city and town in Canada. 

As part of a five-year criminology program at the University of Toronto, I studied criminal law for two years. I also brought the paralegal program into Sheridan College in Ontario and for five years, I tutored individual students from the Humber College paralegal program held in Toronto on how to prepare their cases, how to conduct their cases in court and how to research law. Their lessons by me were in my office and in court rooms.  

.With the law experience that I have, I don’t permit lawyers, prosecutors or judges to verbally abuse me in a court room. If they do it, they risk getting my wrath. A judge in family court took the risk and he ended up having been chastised by the deputy chief justice of Ontario.

There were only three prosecutors who did me wrong  in court during a trial in which I was representing a client. 

Generally lawyers meet with prosecutors before trials and on one  occasion.  I met with a prosecutor to discuss the impaired driving charge  my client was  facing. When the prosecutor learned that I was not a  lawyer, he said to me, “You can’t represent your client because I am going to have your client proceeded against as if the charge is an indictable offence rather than by summary conviction. He knew that meant that I couldn’t represent him and thus my client would be unrepresented during his trial.  I should have filed a complaint against the prosecutor but alas, I didn’t do it.

The second time a prosecutor acted wrongly was when I was charged with assault with a weapon—to wit, a 14-inch flashlight. I didn’t have the flashlight in my hand  when I punched a former boxer to the ground after he grabbed me from behind to drag me into his apartment to take back I million dollar writ against his wife on behalf of someone who was suing her re a car accident. Just before the trial began, the prosecutor spoke to my lawyer and offered to withdraw the charge of assault with a weapon to the charge of a simple assault. The prosecutor knew that the ex-boxer, his wife and adult daughter both told the prosecutor that they never saw a flashlight in my hand at all. We didn’t accept the offer and the judge said  that I had the right to punch the ex-boxer since he was assaulting me for an improper reason. I should have filed a complaint against the prosecutor but alas, I didn’t.

The third prosecutor told the judge that as a court agent, I wasn’t qualified to represent a person charged with a criminal; charge. The judge let me continue with my presentation which was extensive on a complicated legal issue. I won the case for my client and the judge then said to the prosecutor. “The accused was fortunate to have such a fine lawyer representing him. 

And now, I will show you the letter I sent to a prosecutor who insulted me during a trial in which I was representing a client. I decided to get even with the nasty prosecutor by sending him a letter of chastisement. He was the senior prosecutor in three cities. The letter was like a lecture.

Michael Mins                                                                      July 14, 2006
Deputy Crown Attorney
Crown’s Office
Court House
114 Worsley Street
Barrie, Ontario
L4M 1M1

Dear Sir:

          You may recall that we were both advocates in the Martin Cook trial held on June 9th, 2006 in Collingwood.

          You also may recall that just before that trial, I told the judge that I have been practicing law for 41 years in Ontario courts and conducted thousands of trials, many of them in the criminal courts.
I also said that I have addressed the United Nations crime conferences around the world 23 times since 1975. These conferences were attended by Supreme Court judges, ministers of justice, et al from over 140 countries who heard me speak on matters involving criminal justice. Further, I trained in criminal law for two years as part of a four-year criminology program.

          What I didn’t tell him was that I also studied forensic sciences at the Centre for Forensic Sciences in Toronto for a year and that since 1995, I have been classed by the United Nations as an expert in criminal law and since 2005, when being introduced as a guest speaker at these crime conferences, I am introduced as a distinguished expert in criminal law. I am also the father of the United Nations bill of rights for young offenders. Further, I didn’t tell him that in 1969, I headed an ad hoc task force that was to submit to the Ontario government our report on the issue that dealt with compensating innocent persons sent to prison, a task force whose members were judges, law professors and legislators, a number of them later becoming members of the Supreme Court of Canada, the Federal Court of Canada and ministers of justice. I also brought in 24-hour duty counsel to Canada as a direct result of my speech at a national law conference held in Ottawa in 1971. Further, back in the early 1980s, I had the privilege of interviewing five members of the Ontario Court of Appeal on five TV shows on issues of law and was a syndicated newspaper columnist who wrote a weekly column on law for five years.

          I didn’t want to bring all that to the court’s attention because it is overkill but I am bringing it to your attention because you talked down to me---something I won’t tolerate from crowns or judges or fellow advocates. And further, I was practicing law in criminal courts when your mommy was wiping your bummy. 

          You made a terrible blunder when you tried to belittle me in front of the judge by adding an unsolicited comment about me that even you recognized at the time as not being pertinent to the issue before the court. You said that I didn’t have the right to refer to Mr. Cook (whom I was defending) as my client. You said that that is reserved to lawyers, not court agents.

          I have heard a lot of stupid remarks uttered in court in the past but that one is probably the stupidest one. The only other really stupid remarks I heard in court when referring to me was one in which a judge in a family court told my client that I couldn’t give him legal advice. I complained to the judicial council and he was ordered to appear before the deputy chief justice for chastisement. The other stupid remark is when a crown said that I should not say that I am in the practice of law. That issue later came up at the Cory hearings in which Mr. Justice Cory (formerly of the Supreme Court and a former member of my task force) remarked that court agents are in fact, in the practice of law.

          The Gage Canadian Dictionary (of which I helped compile the original edition) defines ‘client’ to mean;

          A person whom a lawyer or other professional person acts.

          Am I a professional person? Of course I am. The Penguin English Dictionary defines a professional as being a ‘person taking part in an activity as a paid occupation’.
          Mr. Justice Cory recognized paralegals as professionals who work with their clients when on page 18 of his report to the Ontario government he said in part;

          “Further, I think the same retainer form should clearly indicate that any advice given to the paralegal’s client must be limited to the particular areas in which the paralegal is authorized to practice.”

          You will note that in that one paragraph, the esteemed justice mentioned that paralegals give advice and are in the practice of law.

           I also refer you to  Regina v. Lawrie and Pointts Ltd .in which Mr. Justice Blair of the Ontario Court of Appeal said in part;

            “Lawrie is not a barrister or solicitor. He is a retired policeman with considerable experience in the conduct of traffic cases under the Provincial Offences Act. He incorporated the company for the purpose of representing persons charged with traffic offences under the Highway Traffic Act. Each customer or client is required to sign a form appointing the company as agent to act on his or her behalf ‘within the meaning of the Provincial Offences Act’.”

          At no time did the Court of Appeal state that Mr. Lawrie’s customers were not his clients.

          That wasn’t the only time that the Court of Appeal referred to the customers of paralegals as being clients. I refer you to the Regina v. Romanowicz decision of that court given in 1999 in which the court wrote;

          The agent was not accountable to the Law Society and the client would not be in a position to sue the agent as he would a lawyer.”
          I refer you to Law Society of British Columbia v. Mangat which was heard by the Supreme Court of Canada in which the court was dealing with the issue of court agents representing clients in immigration matters. The court said in part…………………………

“……..their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB.”  

Let me further quote in part from a speech given by Mr. Justice Roy McMurtry when he gave an address on September 30, 2003 at Humber College when speaking to the inaugural class of the paralegals participating in the degree course at Humber College. He said;

Unlike lawyers, they also aren't required to carry liability insurance and don't have to pay into a compensation fund to reimburse clients victimized by fraud artists within their industry.

When you made that asinine statement, I began wondering why you made it in the first place. Then I realized that there were two reasons. The first being that by then, you realized that your case was going down hill and you figured that if you can make me look silly, then perhaps the judge will think that my argument is silly also.

I make a great effort to avoid saying anything in front of a judge that would appear that I am being disrespectful to a fellow advocate. In Ben Palmer’s book, Courtroom Strategies, he said in part on page 306;

          “So, too, in oral argument, you should be careful to avoid sarcasms.”  

I found it interesting to observe that our trial judge decided to stay away from your remark. That was either because he too knew that it wasn’t pertinent to the issue at hand or perhaps because he was too much of a professional jurist to comment on something as inane as what you had just said. I certainly didn’t attempt to give your remark any credence by commenting on it. 

The second reason is probably closer to the truth. You, like many lawyers simply can’t face the reality that court agents are here to stay and that they will continue to act as advocates in courts in which you practice. Suck it up and live with it. Nothing you have to say will alter that fact.

Perhaps you didn’t realize by then that your case was going down hill but you must have suspected it when immediately after you had the temerity to suggest to the judge that you didn’t think you had to present your argument and the judge immediately responded by telling you that he thought you should.

Notwithstanding the fact that your cross examination of my client was superb, you made three bad mistakes while conducting your trial. I would be remiss if I didn’t point them out to you.

First of all, you came unprepared. I realize that you were called upon at the last minute to prosecute my client, so you didn’t have the advantage I did since I had months to prepare but coming into court without case law is akin to going ice skating without bringing skates. Surely your office has access to QuickLaw as I do. Perhaps if you had conducted a search, you may have found something that would have supported your position.

Your second mistake was that you presumed that the trial judge would know everything about the legal issue that was before him. If I have learned anything about judges, and I have appeared before a great many of them in Southern Ontario, they are extremely grateful to advocates who give them case law to look at. Surely that must have been apparent to you when our trial judge was quoting passages from the case law that I had brought to the court. 

        Your third mistake was that you didn’t realize that when quoting case law, the facts of the case you are quoting doesn’t necessarily have to be the same as the current case being heard. 

          In Lee Stuesser’s book, An Advocacy Primer on page 188, he wrote about using case law where the facts are not the same as what is before the court. He said in part;

          “In discussing the foundation cases, provide a context. If the facts are on point, say so. If not, say so. The context of the case is most important if you are going to distinguish the case on the facts or challenge it on the law.”

          It’s obvious to me that you missed this important aspect of your training in law and that must have become apparent to the judge as it was to me when you chastised me for referring him to the Marsden case.

          You said that that case dealt with a defendant who was charged with causing a disturbance because he was fighting whereas my client was charged with causing a disturbance because he was yelling and swearing. I pointed out the differential in the facts when I presented the Marsden case as part of my argument.

          You missed what I was trying to convey to the court but the judge didn’t miss it because he referred to the Marsden case when he gave his decision. Both the judge and I knew that what the court in Marsden was saying was that if a person comes onto a scene where there is a disturbance and then participates in that disturbance, that doesn’t necessarily mean that he caused the disturbance. That was exactly what had occurred with my client. The judge realized that and he used the Marsden case to support his decision as I had hoped he would. Had I thought as you did, I wouldn’t have brought the Marsden case to court and perhaps suffered the consequences for that failure. Fortunately, I know enough about law to know the importance of bringing case law to court, especially when the legal issues are on point even if the facts are not.

          Over the many years I have practiced law in the criminal courts around Southern Ontario, I have had the privilege of meeting some very fine crown attorneys. They have been polite and I have returned their politeness in kind. On the other hand, you came across like a Chicago hit man. You were rude and insulting. You were not the kind of man I would seriously consider negotiating a plea with.

          Admittedly, I too have my failings and one of them being, I sometimes inadvertently lead my own witnesses just like many lawyers around the world also do. But no one has ever complained about me being rude or discourteous to others or of insulting advocates in the face of the court.

          I hope that I won’t have the unfortunate experience of having to be on the same case as you are on in the future but if fate directs us to that possibility, at least do me the kindness not to talk down to me and instead, give me the same respect you would give a lawyer who is defending a client. When I stand behind the bar, the courts treat me no differently than they do with lawyers. Crown attorneys do the same. I expect the same from you. I have spent years earning respect from judges, crown attorneys and lawyers and it behooves you to give me that same respect.

          I remain,

            Yours truly

                Dahn Batchelor  

He never sent me a reply and I never saw him again.

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