Summary Charges: a fast track to trial and conviction – access to justice irrelevant.

Charles LeBlanc has repeatedly asked the Fredericton court reporter, Don MacPherson, to write an article on the injustices of summary charge prosecutions. Charles has learned, the hard way, that summary charge process is little more than a fast track to trial and conviction – unless you know the law better than a lawyer. Even then judges argue on behalf of the Crown and protect dirty cops.

Just before his hearing, on 18th September, 2015, Charles asked MacPherson (yet again) to write an informative article on the disaster that is summary charge prosecution. In response the court reporter stormed out of the hearing, saying Charles obviously didn’t want him there. Nothing could have been farther from the truth.

Don MacPherson has said many times his job is only to report what he hears and sees; he does not investigate or pass opinion. The trouble is what he hears and sees is not always what is reported. MacPherson also lectures people for attacking his “journalistic integrity”. I think his article, published on 21 September, tells us exactly where his journalistic integrity lies. Even though he did not “see” or “hear” anything of Charles’s hearing (having left in a tantrum) he still wrote an article as the court reporter. His short article was full of errors and misinformation, including a false and defamatory headline, saying Charles was going to trial for assaulting a police officer. Better to write nothing at all than to misinform the public and defame someone.

The Irving press clearly has no interest in educating the public, exposing systemic abuse or improving quality of life in this province. It is actively suppressing systemic wrongdoing and the court reporter seems to be one of Irving’s instruments. Since the Irving press won’t write the article I will. The public needs to know.

There are two levels of criminal offence in Canada: summary and indictable. Summary is less serious and the chosen route for most complaints. Depending on the offence, a summary conviction can result in up to 6 – 18 months incarceration and/or fines up to $5,000. It is still a very serious matter, negatively impacting reputations as well as Charter rights to liberty, security and equality – sometimes even life, as we saw with the tragic outcome of RCMP Corporal Ron Francis’s ridiculous charges and prosecution.

Under the Criminal Code of Canada the Federal Government has set up a two-tier system for laying, prosecuting and trying the two levels of charge. The differences create a huge disconnect for access to justice. Those charged with indictable offences have far more access to court process that may prevent a charge from proceeding to trial, assuming the accused know their rights, or have a competent lawyer (both of which are rare as the yeti).

Both types of charge are usually laid in provincial court by police officers who swear an “Information” before a judge. However, for more serious indictable offences, the Crown can prefer an indictment, submitted directly to the Superior court, which is not so common.

What are the big differences between summary and indictable criminal process? When indictable charges are presented to a court the judge is required to review the grounds and evidence before accepting it. This may require a hearing, held without the public or accused allowed, so I doubt that happens very often.

After entering a plea those accused of indictable offences can choose to be tried by one of the following: a provincial court judge; a Superior Court judge; a Superior Court judge and jury. The defence can also request a preliminary inquiry, which is a hearing to decide if there is enough evidence to proceed to trial. There are no such luxuries provided for summary offence prosecutions.

When a summary charge is laid judges are under no obligation to review any evidence or grounds. There is no right to a preliminary inquiry and no right to elect if the trial will be in provincial or superior court, or by judge and jury.

The Criminal Code also does not allow appeals from interim judicial decisions – however appalling – until the accused has been convicted and/or sentenced. In short, the criminal justice system is designed to fail defendants. There seems to be a nationwide agenda to use summary charges to fast-track people to trial, which almost always results in the Crown winning a conviction, based on little to no evidence and police officers “testilying”. (“Testilying” is the act of police lying on the witness stand – yes, it is so common it even has a name.

As we all now know, Legal Aid Services New Brunswick is withdrawing even basic services. Many people facing jail for a summary charge are not represented. Summary trials seem designed to convict people as quickly as possible. I heard a Fredericton Provincial Court judge say her trials average 30 minutes.

So, why is our criminal justice system such a disaster? First, I think this province has very few real jobs. Zero growth in business and industry and a contracting job market means the government has to preserve a facade that we need lots of police, judges, sheriffs, court staff, jails and their employees and Crown prosecutors. Without those jobs this province would be in an even bigger economic crisis than it is already in.
And let’s not forget the other winners in a prosecution: defence lawyers. Prosecutions create jobs and income for them. Private defence counsel costs up to $500 an hour. Even if you can pay that your lawyer will be working to clock up the hours, not to acquit or terminate the proceedings in favour of the client.

We don’t have speed dating in New Brunswick – we have speed prosecuting.