Scanned copy, if there are errors, please e-mail me with corrections:
PREPARATION FOR THE SENTENCE HEARING AND SUBMISSIONS ON SENTENCE
By Michael J. Moldaver of Greenspan, Moldaver
April 4th, 1981
To main index of these items.
Preparation for the Sentence Hearing and Submissions on Sentence Some General Thoughts
The Role of Defence Counsel - We are not dealing with robots or automatons
The So-called Principles of Sentencing
Approach to Preparation for the Sentence Hearing
The point may be illustrated by several examples
How to get the Job Done
Communication with the Client
The Client and Judicial Interim Release
The Client, His Family and Close Friends
Other Persons in the Community
THE SENTENCE HEARING Facts upon which Plea is Based
Presentation of the Facts by Defence Counsel
Defence Evidence
Character Witnesses
Pre-sentence Reports
Case Law
Final Summation
Conclusion
Preparation for the Sentence Hearing and Submissions on Sentence
This paper is not designed to review the so-called general principles of sentencing nor to categorize the various aggravating and mitigating factors which sentencing tribunals consider in arriving at appropriate dispositions. Instead, the focus relates to practical matters regarding preparation for the sentence hearing and the manner of presentation of sentence submissions.
Some General Thoughts
Trial Judges have consistently maintained that the sentencing process is one of the most difficult aspects of the judicial role. Judges universally are familiar with the various sentencing principles as well as the many and varied factors which serve to aggravate or mitigate the ultimate punishment. The difficulty stems, therefore, not from a lack of appreciation of the theoretical principles but instead the manner of application and weight to be ascribed to these principles on an individual basis. It is in this regard that the trial Judge seeks assistance from counsel and looks to counsel for an effective and realistic presentation regarding the applicability and weight to be attached to the relevant considerations. More often than not, trial Judges do not receive this assistance.
Furthermore, Judges frequently complain that the material which they have before them regarding the offender is woefully deficient and often not responsive to the important issue or issues of concern. Trial Judges faced with this react in one of two ways. Some will take it upon themselves to try to discover the crucial information which is lacking; others will simply impose sentence out of a sense of frustration, feeling deprived of the knowledge which would have provided them with a better appreciation and understanding of the individual offender. In either case, counsel for the defence does a disservice both to himself and more importantly, his client.
- 2 -
Preparation for the sentence hearing, like preparation for trial, is an art, not a science. There are no magical formulas or guidelines which, if followed, will ensure both a comprehensive and competent sentencing presentation. Having said this, it is equally important to recognize that the scope of relevant and meaningful sentencing submissions is wide and often limited only by our own lack of imagination, foresight and ability to be innovative. This is especially so given the extremely broad sentencing powers which trial Judges possess in most cases and the myriad of variables which exist in relation to any given offence and offender.
And yet, the general criticism which is consistently levelled (sic) against the defence bar relates to our lack of preparation and our failure to be resourceful, innovative and imaginative in the presentation of sentencing submissions. More often than not, these submissions amount to little more than boiler-plate, oral representations including age, marital status, place of residence, employment, if any, and precious little else. While there may be many reasons for this, two possible causes which bear particular consideration are the role of defence counsel in the sentencing process and the effect of the so-called “sentencing principles” emanating from the Ontario Court of Appeal.
- 3 -
The Role of Defence Counsel
In a large percentage of cases, after the initial interview, defence counsel knows that his client is guilty of an offence, whether it be as charged or some lesser and included offence. (1) A minimum amount of further investigation confirms that barring some form of divine intervention, the Crown will be able to prove the charge without difficulty. With this in mind, logic dictates that at some point down the road, the client will have to face the music and either plead guilty or be found guilty. Defence counsel at this stage has a choice. One approach is to do nothing, other than ensuring that the file contains the makings for a dynamic two-minute, boiler-plate sentencing presentation (to be up-dated, of course, just before going into Court on the morning of the sentence hearing) . The other alternative involves the active participation of counsel in charting out and over-seeing a programme for the client designed not only to ensure the best possible sentence but, in many cases, to alleviate where possible the problem or problems which significantly contributed to the commission of the offence. It may be contended that the latter approach equates our function to that of social worker, a role which many are not readily prepared to accept.
In my view, this perception is ill-founded, but only so, if we are prepared to accept that the role of the criminal lawyer goes beyond that of being able to argue a great brief of law or bringing a jury to tears. It has always been my personal belief that the criminal process is a very human process. We are not dealing with robots or automatons. We are dealing with the lives of people who invariably have problems which go beyond their immediate problem with the law.
- 4 -
It is in this context that our professional role legitimately enables us to actively assist our clients by helping them maintain some semblance of normalcy and sanity throughout the process and by encouraging steps which will hopefully avoid future confrontations with the law. None of us would question the legitimacy of a representation on sentence that our client has overcome the problem which manifestly contributed to the commission of the offence, thereby rendering it unlikely that he will ever appear before the Court again. Why then, is it so difficult to accept as part of our role, active participation to assist in this regard?
Assuming, however, that the humanitarian approach is not compelling, an argument may be advanced purely on pragmatic grounds. Simply put, the fundamental purpose of any sentence imposed is the protection of society. It is well recognized that society is best protected by the ultimate rehabilitation and reformation of the offender. If, therefore, between the time of arrest and the sentence hearing, the client has taken steps enabling counsel to establish that the process of rehabilitation and reformation is either complete or well underway, the Court is likely to place a good deal of emphasis on this and, wherever possible, impose a sentence designed to further the positive progress, not frustrate it.
- 5 -
Generally speaking, it has/been my experience that persons charged with criminal offences tend to be highly motivated between the time of arrest and final disposition to either seek out or submit to rehabilitative programmes which they were either unaware of or unwilling to participate in prior to their arrest. It is recognized that initially, the motivation may not be genuine but founded upon the threat of penal sanctions which will flow if progressive steps are not taken. Those who fall within the latter category mayor may not successfully complete the process of voluntary rehabilitation. This, however, is one situation where it is submitted that the end justifies the means. Even if the initial motivation is suspect, if, after all is said and done, the progress achieved is real, both the individual and society as a whole will have benefited. In view of this, it is contended that the defence counsel owes a duty to the client to not only outline but actively encourage involvement in a programme of rehabilitation designed to deal with the problem or problems which have led to the commission of the offence and which the trial Judge will assuredly be concerned with at the time of sentence.
The So-called Principles of Sentencing
There is a very great tendency, not only on the part of the defence bar but, as. well, Crown Attorneys and members of the Judiciary, to overly rely upon and resort to the so-called principles of sentencing emanating from the Ontario Court of Appeal. This response, if not justified, is at least understandable.
- 6 -
In a field as difficult as sentencing, the wide discretion given to trial Judges leads to uncertainty which, in turn, leads to a fear of lack of uniformity in the sentencing process. The Ontario Court of Appeal is very alive to this concern and, in an effort to alleviate the obvious injustices which would flow from such a lack of uniformity, has sought to remove some of the uncertainty by setting out guidelines to assist trial Judges in their difficult task. In doing so, however, the Court itself is the first to recognize that the pronouncements rendered are meant to be guidelines and not legislative edicts designed to usurp the function of the trial Judge. Indeed, the guidelines are consistently framed in a manner which makes this perfectly apparent. For example, the Ontario Court of Appeal has said, on many occasions, that in the absence of exceptional circumstances, persons convicted of possession of a narcotic for the purpose of trafficking must receive a custodial sentence. This proposition obviously limits, to some extent, the sentencing alternatives available to the trial Judge, but leaves undisturbed a very wide area of discretion. Initially, the trial Judge is required to determine whether or not the circumstances are sufficiently exceptional to warrant the imposition of a non-custodial sentence. Failing this, while the Judge must impose some period of incarceration, the range of sentence is not proscribed, thereby leaving it open for the trial Judge to impose an exceedingly short sentence of imprisonment if deemed fit.
- 7 -
Simply put, when defence counsel is faced with a situation wherein the Ontario Court of Appeal has pronounced a sentencing guideline, this should not be taken to mean that the ultimate sentence is a foregone conclusion, thereby alleviating the necessity for thorough preparation combined with a comprehensive exploration of possible sentencing alternatives. Indeed, cases of this nature often present a unique challenge. If approached in a vigilant, innovative and creative manner, the personal reward and satisfaction from the result achieved will more than compensate the extra effort required.
Approach to Preparation for the Sentence Hearing
From the foregoing, it is apparent that the process of preparation for sentencing should not commence on the eve of the hearing itself. In fact, preparation should often begin immediately after retention. Due to the multitude of variables which exist in any given case, it is obviously not possible to set out a formula of preparation that will be universally applicable. However, in most cases, the approach to be adopted is readily apparent. A little common sense is usually all that is, required to reveal the focal problem or problems which must be met.
Generally speaking, two very simple questions will pinpoint the vital issues:
(a) why did the individual commit the offence? and/or
(b) what is the likelihood of recurrence?
There will, of course, be peripheral issues which will vary in degree of significance and which must not be overlooked. However, these matters must be kept in their proper perspective for no matter how compelling or convincing, they will not be sufficient either individually or collectively to overshadow the central issues.
- 8 -
The point may be illustrated by several examples.
Example One
A has entered a plea of guilty to the charge of rape. Prior to the incident, he had been a model citizen - married, children, gainfully employed, regular church-goer, active in charitable and service organizations in the community. At least a dozen character witnesses are prepared to attest to his previously unblemished character.
All of these matters are significant but not responsive to the central issues, why did he do it? Is he likely to repeat the conduct? The answers to these questions may be straight-forward or exceedingly complex. For example, Mr. A may simply have consumed too much alcohol, resulting in impulsive, unthinking behaviour, totally out of character. The chance of recurrence is negligible. On the other hand, assessment may reveal a deep-rooted, underlying pathology requiring intense and prolonged psychiatric treatment. No matter how diligent counsel may have been in the preparation of the peripheral matters, if unable to respond to these fundamental questions, the preparation will have been inadequate.
Example Two
Mr. B has entered a plea of guilty to the offence of trafficking in heroin. The sale involved 100 caps to an undercover agent. B has had a difficult background. A number of tragic and unfortunate incidents led initially to drug experimentation, which then progressed to the point where B has been heavily addicted to the use of heroin for the past five years. The sale was engaged in to support B's habit.
- 9 -
In this example, the reason for the commission of the offence is apparent and of course, very significant. However, it, too has become a peripheral matter. The real concern relates to the likelihood of recurrence. Untreated, the user-trafficker remains a danger to society when he chooses, among other crimes, to provide drugs to others to supply himself. Lengthy periods of incarceration have been meted out to user-traffickers not so much on the ground of denunciation but more so to neutralize the danger of continued criminal conduct. However, if a program of treatment has been embarked upon prior to sentence and counsel is able to submit that B has either mastered the drug habit or is well on the way towards rehabilitation in this regard, the case takes on a completely different complexion.
Example Three
C has entered a plea of guilty to theft over $200. Over a six month period, he stole $10,000 from his employer. Prior to the incident, C has had no difficulty with the law - married, children, stable work history, presently employed, character evidence available.
As with our other examples, the two critical questions must be explored. Was the theft motivated by greed alone? Or, did C suddenly and unexpectedly suffer serious financial hardships which motivated the theft? If so, have steps been taken to resolve the economic difficulties? Or, did C take the money and lose it at the racetrack? If so, is C a compulsive gambler in need of treatment?
While in cases of this nature, matters such as restitution and sentencing alternatives such as community work programs take on a significant role, they too remain peripheral to the central issues.
- 10 -
The examples serve to demonstrate that the approach to preparation for sentencing need not be complicated or difficult. A little bit of common sense will usually steer us in the right direction. Determination of the approach however is but the first step in the process. The best laid plans will be meaningless unless followed through to completion. It is in this regard that the skill and ability of counsel will be tested.
How to get the Job Done
The successful achievement of the programme of preparation requires the lawyer to actively arrange and orchestrate both the plan of approach and the persons integral to its success. Once the plan has been set in motion, counsel must be prepared to oversee and monitor the process in order to achieve maximum progress prior to the sentence hearing. This generally involves persistent and regular communication with the client as well as other persons involved.
Communication with the Client
The process of communication with the client is vital and should begin immediately upon retention. Counsel must attempt to achieve his client's full co-operation for without this, nothing will be accomplished. Co-operation, however, may not be a readily available commodity. Success or failure in this regard depends upon, the lawyer's ability to elicit his client's complete faith and trust.
- 11 -
The reason for this becomes apparent when one considers that in most instances, offenders are initially unwilling or unable to recognize the need for rehabilitation, let alone a commitment to actively engage in a demanding programme of reform. While it is hoped that the client will ultimately recognize the inherent worth of the rehabilitative measures prescribed, initially, trust in counsel's advice and experience will often be the only factor motivating responsive conduct.
This problem presents itself most dramatically at the stage of judicial interim release and will therefore be specifically considered in that context.
The Client and Judicial Interim Release
The client who is detained in custody pending disposition is not in a position to commence a voluntary programme of rehabilitation. Judicial Interim Release is therefore an essential first step in the process of preparation for the sentence hearing.
Unfortunately counsel frequently proceed to the show cause hearing without having properly prepared. This is tragic. Detention orders render impossible meaningful progressive measures prior to the sentence hearing.
I suspect that the fault in this regard lies not so much in our lack of willingness to properly prepare but in our failure to adequately control the client at this stage.
Although we are all bound to receive instructions from clients, we are not bound to blindly follow those which we know are contrary to our client's best interests.
- 12 -
In general, people who have been arrested and detained in custody pending a show cause hearing are the worst conceivable individuals to be taking instructions from. Their thought processes are clouded, if not completely controlled, by emotion. Fear, anger, outrage, resentment and depression are but a few of the emotional responses commonly observed. In this state approaching psychological shock, one thought normally prevails to the exclusion of all else - get me out of here, now.
While it is often difficult to avoid being caught up in our client's emotional web, we must be firm and maintain control of the situation. It may be necessary in some cases to adjourn the show cause hearing for weeks in order to achieve a successful result.
A case that comes to mind involved a 32 year old man charged with two counts of rape. The offences, separated in time by approximately two weeks, involved attacks upon two women who had been hitch-hiking late at night. After accepting rides, both were driven to an underground garage and at the threat of knife-point, sexually assaulted.
Without going into detail, investigation revealed that several years prior, my client had been the victim of an unfortunate accident, leaving him with permanent brain damage. Although serious, the physiological damage was not such as to render him incapable of functioning on a relatively normal plane.
- 13 -
However, additional information revealed that the psychological trauma of the accident had effected his personality to such a degree that those who knew him best characterized him as a completely different person after the accident.
Prior to apprehension, the problem had not been professionally diagnosed or treated. The matter was further complicated by the client's initial reluctance to recognize either the problem or the need for treatment.
A show cause hearing was ultimately conducted but not until some eleven weeks after arrest. Eight of those weeks were spent at the Clarke Institute during which time a thorough psychiatric assessment was performed. Except for a brief interlude at St. Michael's Hospital for neurological testing, the first two and one half weeks were spent at the Toronto Jail. During this time, on almost a daily basis, my client constantly criticized the manner in which the case was being conducted and threatened my discharge on several occasions. He was interested in only one thing - to get out quickly.
The task of making him understand that a hasty show cause hearing would lead to disastrous results was enormous. I needed his trust but it was not readily forthcoming. Hours and hours of communication, combining patience and understanding with persistence and firmness finally achieved the desired result.
- 14 -
The psychiatric assessment, while guarded, concluded that my client was treatable. Furthermore, at the show cause hearing, the consulting psychiatrist indicated a willingness on the part of the Clarke Institute to have my client return to that institution where he would remain as an in-patient until such time as it was felt appropriate to wean him slowly into the community. Bail was granted accordingly.
For reasons which need not be elaborated, a preliminary hearing was conducted wherein the Crown's evidence of penetration in one case proved to be weak and in the other, non-existent. As a result of this, as well as full disclosure to the Crown of the problems faced by my client and the remedial steps being taken, it was agreed that pleas of guilty to two counts of indecent assault and one count of possession of a weapon for a purpose dangerous to the public peace be accepted.
By the time of the sentence hearing, the programme of treatment was well underway. Psychiatric evidence was led indicating substantial progress to date and a very positive prognosis. While on bail, the client had obtained gainful employment and as well, had commenced a promising and stable relationship with a woman who was prepared to be completely supportive. The end result was a sentence of ten month's imprisonment to be followed by a lengthy term of probation. As well, the trial Judge recommended an immediate temporary absence programme.
The approach adopted in this case was by no means foolproof. When dealing with the lives of people, mathematical formulae leading to precise and certain results play no part. Do we not though, owe a responsibility both to our client and to society as a whole to at least try?
- 15 -
Handled differently, the same client would undoubtedly have been detained in custody where he would have languished until trial. Barring some form of miracle, he would have been convicted of at least two counts of attempt to commit rape. The trial Judge, faced with the task of imposing sentence, might well have inferentially concluded that he was dealing with a dangerous sexual psychopath, thereby justifying a lengthy term of imprisonment in the penitentiary. If able to survive the penitentiary, upon his release, society would have had on its hands a sick, untreated and potentially dangerous individual. In result, no one would have benefited.
The Client, His Family and Close Friends
The client who embarks upon a demanding programme of voluntarily. rehabilitation needs constant approval, reassurance and assistance, especially from those who are most concerned. One might expect such moral support to flow without intervention on the part of counsel. Such, however, is often not the case.
The criminal process, unchecked and unexplained, can be a devastating process not only to the offender but to his family and close associates. The individuals most directly affected often do not understand the psychological dynamics which emerge and begin to tear away at otherwise stable relationships.
- 16 -
Human beings tend to develop certain patterns of existence which include some degree of order, stability and certainty in their daily lives. For most individuals, emotional well-being is largely derived from feelings of physical, mental, social and economic security. The criminal process has a tendency to strip away some or all of these. Otherwise emotionally stable individuals begin to disintegrate under the enormous pressure and stresses which suddenly emerge. Life patterns become disoriented and disrupted. Security is replaced by uncertainty. Potential loss of freedom, family, friends, financial stability and social acceptance are but a few of the unknowns which the offender and his immediate family must live with. The psychological trauma affecting all concerned can lead to the disintegration of the family unit. It is suggested therefore, that the lawyer must not be complacent in his expectation that the needed moral support from immediate family and friends will be assured. Counsel owes an obligation to his client and family to discuss these matters; to bring them out into the open and wherever possible, lend support. Recognition of a problem is often the first step in the process of solution.
Other Persons in the Community
The manner and nature of assistance available from other persons in the community will depend upon the nature of the case and the needs of the individual offender.
- 17 -
The lawyer who fails to draw upon every potential source of assistance fails in his obligation to the client. Without in any way attempting to set out an exhaustive list, other members of the community whom the lawyer may look to are as follows:
(a) the client's immediate family;
(b) friends and other relatives;
(c) employers, employees, or business associates;
(d) school authorities, including principals, teachers and guidance counsellors;
(e) professional people from. all walks of life including general practitioners, psychiatrists, psychologists, drug addiction consultants,
social workers, marriage counsellors, probation officers, accountants, other lawyers, community service co-ordinators and others;
(f) prison authorities including jail superintendents, temporary absence programme co-ordinators, and medical staff;
(g) parole authorities.
Counsel, again, must be imaginative and resourceful in seeking out those individuals who may be helpful. It is neither feasible nor practicable to attempt to stereotype the roles which others might play. The youthful offender charged with armed robbery may suffer from emotional or psychological problems requiring a prolonged period of psychiatric treatment. On the other hand, the psychiatrist in this type of case may be looked to for an opinion that the offender is not abnormal or dangerous; that the offence was completely out of character and the chance of recurrence negligible. Nor should it be assumed that the role of the psychiatrist is essentially limited to crimes of violence. The offender who has embezzled his employer to support a compulsive gambling habit as well as the middle-aged businessman charged with shop-lifting may also require psychiatric assistance.
- 18 -
To take but another example, the accountant may be needed to assess the value of inventory lost or destroyed as a result of the crime for purposes of restitution. On the other hand, the offender who has perpetrated a fraud as a result of financial mismanagement may equally require the services of an accountant to assist in the re-organization of his financial affairs, in the hopes of removing the problem which led to the commission of the offence.
Another example involves the drug addiction consultant. This expert may be required to assess and treat the user-addict. Of equal importance, however, the consultant's expertise may be required on such matters as patterns of use; prevalence of the drug in the community; degree of potential harm arising from the drug; price range differentials and degrees of trafficking sophistication.
- 19 -
Without belabouring the point, counsel must be prepared to spend some time analyzing the case. Are there potential problem areas which may require the assistance of other people in the community and, if so, who are the most appropriate individuals? If approached in this manner, while counsel may not have all the answers upon entering the Courtroom, he will at least have the satisfaction of knowing that every conceivable effort has been made to assist both the Court and his client.
THE SENTENCE HEARING
Facts upon which Plea is Based
Assuming that a plea of guilty is entered Crown counsel will normally read into the record a synopsis of the facts substantiating the commission of the offence. In some cases, especially where the crime is serious or the fact situation complicated, viva voce evidence will be led to support the plea.
In either event, it is essential that defence counsel discuss beforehand the facts which the Crown intends to rely upon and wherever possible, work out an agreed statement of fact. Failure to do this may lead to a number of undesirable results. For example, the scope and nature of involvement which your client is prepared to admit to may differ substantially from the role described in the Crown brief. Degree of complicity may be a crucial element in arriving at the appropriate range of sentence. Efforts should therefore be made to obtain Crown approval of the defence version or at least, a compromise position which both sides can live with.
- 20 -
If unable to agree, the Crown will be required to call relevant and admissible evidence to support its theory beyond a reasonable doubt, thereby turning the sentence hearing into a trial. (2) In addition to being time consuming, the prejudicial effect of this upon the defence may substantially outweigh the potential advantages. This is not to say that facts should be agreed to for the sake of expediency, whether confirmed or not by the client. On the other hand, counsel should not be sufficiently naive to assume that the version of the offence as initially portrayed by the client is necessarily accurate. Where pre-sentence discussion with the Crown reveals a potential factual impasse of significance, counsel must thoroughly inquire into the contentious issue(s) as if preparing for trial. Investigation may either bear out the client or alternatively, reveal that, the Crown is unable to prove its position by relevant, admissible evidence beyond a reasonable doubt. On the other hand, it is not unheard of for the client to alter his rendition when confronted with uncontrovertible evidence available to the Crown.
In other cases, while the basic facts supportive of the plea are acceptable, the Crown brief may be littered with entraneous information highly prejudicial to the defence. Again, efforts should be made to excise these beforehand to avoid the possible ill-effects.
- 21 -
Presentation of the Facts by Defence Counsel
Great care must be taken by defence counsel in presenting the facts supporting the plea. Instinctively, we seek to portray the defendant's role in the most positive and favourable fashion. There is however, a fine line between that which is credible and that which defies even the most vivid imagination. In this regard, there are no substitutes for common sense and good judgment. Cautious reflection must be exercised lest counsel's submissions be viewed as an attempt to dupe or mislead the Court.
Defence Evidence
The nature and extent of defence evidence available at the sentence hearing will vary widely from case to case. Needless to say, counsel will endeavour to present the Court with all of the evidence supportive of the defence position. The trick lies not so much in the substance of the evidence to be lead but the manner of presentation. This is where the tactical skills and judgment of counsel come into focus. The packaging of a product may play a significant role in its overall appeal. Considerable thought must be afforded to the manner of presentation to ensure maximum effect. Care must be taken to adduce the evidence in the most convincing and compelling fashion. It is in this context that decisions must be made regarding such matters as: the number of witnesses to be called; the most appropriate witnesses relative to the subject matter of interest; the order of witnesses and the need to present a witness in lieu of or in addition to the mere filing of a letter of report. As with so many other features of the sentencing process, it is impossible to list a series of hard and fast rules capable of universal application.
- 22 -
Instead, one must again resort to common sense and good judgment (with a smidgen of “knowing your Judge” thrown in for good measure).
Character Witnesses
Evidence of prior good character is always a factor to be considered by the trial Judge and should be utilized whenever available. The weight ascribed to it will vary from case to case, depending upon the nature and gravity of the offence. For example, on a charge of breach of trust, Crown counsel will often submit that but for the offender's prior impeccable reputation, the offence would not have succeeded. In other situations, the gravity of the offence and the need for general deterrence will outweigh all other considerations, thereby diminishing the impact of character evidence. In all instances however, the trial Judge must be mindful of the offender's ultimate rehabilitation. It is in this regard that character evidence uniformly retains its probative value.
In many cases, the number of character witnesses available will be limited, thereby alleviating the need to determine the nature and number to be called. In those rare instances where counsel has the luxury of being able to choose from any number of witnesses, tactical decisions must be made. While it may indeed be impressive to lead evidence from a dozen leading citizens, other factors' such as time constraints and overkill must be borne in mind.
- 23 -
There are at least two different and equally effective approaches to the problem. Some counsel prefer to have all potential character witnesses present and available in the Courtroom. After leading evidence from four or five witnesses, counsel may simply point out to the trial Judge that many other respected citizens, present in the Courtroom, have come forward to lend their support to the offender. In some cases, with Crown approval, counsel may then proceed to highlight the nature of the evidence that would have been forthcoming from the remaining witnesses.
Other counsel adopt a somewhat different approach, designed to avoid the logistical problems arising from the task of preparing and co-ordinating a large number of witnesses. Instead, some time prior to the sentence hearing, character letters are obtained from every responsible member of the community prepared to be supportive. These letters are then copied and bound in an attractive brief which should contain an index page. When completed, the Crown should be provided with a copy and informed of the intention to file the brief with the trial Judge. In this way, if Crown counsel is not prepared to accept the letters at face value or wishes to cross-examine some of the individuals, the onus will rest upon the Crown to notify defence counsel prior to the hearing.
The format of these letters should, in general, follow along the same lines as if the evidence were being given viva voce, including the background and history of the writer; general knowledge of the offender and his family; specific knowledge of the offender; positive character traits and qualities observed over the years, and perhaps a personal opinion as to potential for recurrence.
- 24 -
One note of caution. Care must be taken to ensure that the over exuberant supporter does not suggest that the offender is not guilty and therefore ought not to be punished. Comments of this nature will not sit well with the trial Judge, especially in the face of an offender's unqualified plea of guilty.
Perhaps it goes without saying but it should be noted that the “character brief” approach does not preclude the calling of four or five of the most appropriate character witnesses at the sentence hearing. Nor should it be taken as precluding those persons who have written letters but wish, as well, to be in attendance at the hearing from doing so.
Before leaving this topic one further note of caution is warranted. If calling viva voce evidence it is essential that character witnesses be made aware of the offence committed and factual basis relied upon by the Crown to support the charge. Furthermore, if your client has a criminal record or if you are aware of conduct which might be considered evidence of bad character, make certain that the character witnesses are familiar with this. The value of this type of evidence will be diminished if cross-examination reveals that the witness either knows little or nothing about the charge or any prior misconduct.
- 25 -
If this occurs, they trial Judge might conclude that the character witnesses do not know the offender as intimately as professed.
Pre-sentence Reports
While the trial Judge has an overriding discretion to order the preparation of a pre-sentence report, the positions of Crown and Defence counsel will normally be sought and usually respected. Certainly, if defence counsel has moved for such a report, I am not aware of any case where the request has been denied.
In deciding to seek such a report, counsel must obviously weigh the pros and cons in an effort to pre-determine on balance whether the report will be positive or negative. Again, in this regard, there is no substitute for common sense.
The one area in which there seems to be a divergence of opinion arises in those cases where defence counsel has marshaled a substantial amount of positive and favourable evidence in support of the defence position. In this situation, some counsel decide against the report . Why take a chance with a good thing? Others prefer to request a report in the expectation that it will lend some objective credence to the defence cause. Generally speaking, it is suggested that the latter approach is preferable but only after defence counsel has carefully and cautiously determined that the case will stand up under objective scrutiny.
- 26 -
Once committed to a report, defence counsel may wish to communicate with the probation officer to offer assistance if requested and to ensure awareness of all potential sources of information requisite to the preparation of a full and complete report.
Once prepared, the report must be reviewed with the client regarding its accuracy. Matters of contention must be resolved in favour of the defence unless the Crown tenders relevant and admissible evidence to prove the contrary.
Case Law
The use of case law to support a proposition being advanced or to assist the trial Judge in arriving at the appropriate range of sentence is undisputed. However, care must be taken in the selection process to discover those cases most relevant and apposite to the proposition being advanced. No useful purpose is served by citing a case in which the only similarity with the case at bar is the charge. There is a tendency on the part of some counsel, especially those who have recently graduated, to feel only semi-clad upon entering
the Courtroom unsupported by a wide body of case law. A lengthy dissertation of irrelevant case law will accomplish nothing, other than to annoy the Judge. Case law must be kept in its proper perspective. Its structural strength depends upon the solidity of its factual foundation. Without the latter, it’s worth nothing.
- 27 -
Final Summation
The final summation will vary in length and complexity from case to case. Prior to the hearing, counsel should be aware of the factual basis upon which the plea is tendered; the evidence, if any, to be called by the Crown; the evidence on behalf of the defence, and the relevant case law. If properly prepared, surprises at the sentence hearing should rarely arise. In this context, it is recommended that counsel set aside some time to organize the final summation before the hearing. A plan of approach should be decided upon. Should the case law be discussed in isolation and, if so, at the beginning or end of the summation? Alternatively, would it be more effective to attempt to weave the law into the factual presentation. What are the strengths of the case and how may they be highlighted to obtain maximum impact? Perhaps more importantly, what are the weaknesses and how should they be dealt with to minimize the potential harm?
In addition to this type of organization, considerable thought should be given to the desired end result. Submissions in this regard should be reasonable, practicable and feasible. The counsel who either consciously or otherwise “low-balls” a Judge does a disservice both to himself and to his client.
- 28 -
Conclusion
It is appreciated that some of the approaches recommended in this paper will be neither feasible nor practicable in certain cases. It is further recognized that despite the best intentioned counsel, some clients are either beyond help or are not prepared to help themselves. All that we are capable of giving is sincere and honest effort - nothing more is expected. The next time, however, that we say to ourselves that "nothing could be done for that client", hopefully it will amount to more than our own rationalization for having done nothing.
notes
1. Throughout this paper the masculine gender has been utilized when of course, no single gender is meant to be implied.
2. See Regina V. Gardiner (1980), 52 C.C.C. (2d) 183 (Ont. C.A.) (Note: Leave to Appeal to the Supreme Court Canada granted
Dec. 3, 1979)
PLEEASSE SIGN OUR PETITION
It will make a difference!
Home Page - Main Table of Contents - Back up a page - Back to Top
|