Access to justice must start during first contact with police

For better or worse, I often view the world through the lens of my criminal clients. The majority of my clients at my office in northwestern Ontario are Aboriginal. Most have not had a fair shake at life. Access to justice does not start by providing them with a lawyer at their first appearance. Access to justice is critical well before they reach court: at detention, arrest and charge.

It is our sad state of the union to report that year after year, Aboriginal peoples are over-represented in our justice system. Access to justice implies procedural justice. Our system is set up to deal with those accused of committing crimes. As obvious as it is, but worth drawing one’s attention to, a lot of evidence is gathered from the moment they come into contact with a police officer. This is a terrifying experience for anyone. It only makes sense that the playing field should be balanced.

One size does not fit all when dealing with accused persons. The Charter is a reactionary tool. We need proactive steps designed to increase access to justice at this consequential point of our system.

Short of drafting policy, a starting point is to examine the feasibility of: Tailoring police practices to the jurisdiction; having an interpreter on call; ongoing training for officers to deal with mental health issues; funding for Aboriginal legal services to identify groups that require additional explanation; review what is already available such as the additional steps in the YCJA [Youth Criminal Justice Act] when dealing with the arrest/detention of young people; and lastly, provide confidential calls to duty counsel for those facing criminal jeopardy. An exception to the last suggestion would be of course if they’ve already spoken to counsel of choice.

This recommendation has an added benefit: As counsel receiving calls from the detachment I always ask to speak to an officer. Knowing that they may have to speak to counsel adds a layer of accountability. It is entirely possible that the last suggestion may be a double-edged sword for defence counsel and cumbersome for police. Something to ponder at my imaginary focus group.

The police have a tremendous amount of power. It is an alarming experience to be confronted by officers and then detained. As an accused with possible cognitive impairment and language issues, there is a baked-in disadvantage to add to this experience.

Access to justice is a requirement at the critical stage when an accused first comes into contact with the police.

Originally published in the Lawyer’s Daily October 23rd, 2018:

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