I have known this lawyer since 1963, when we brought him home at the age of 11 weeks from a London County Council nursery, and began the process of adopting him. In all these years since, he has never ceased to surprise me. He began life as a slightly troubled kid, who, like many kids, had no interest in school. He wasn’t much helped by his parents’ somewhat disrespectful attitude towards the schools, and the constant changes he had to undergo as we moved from England to Montreal, to New Zealand, then back to Ottawa.
It was no great surprise that he dropped out of Grade 10, left school, seemed ready to drift, but somehow always rescued himself from that abyss, got himself together by going off to Winnipeg to live by himself, then, having sorted himself out, he qualified at Algonquin Community College as a social worker.
He was successful in that work, gaining plaudits from mothers for his sensitive handling of their retarded children. There were some remarkable signposts along the way: for instance, at 15, he crossed the entire country, without asking anyone for help, working his way across, an act of remarkable resource and courage. After some years of social work in northern Ontario, Halifax and Toronto he decided while walking along the street one day that he had always wanted to be a carpenter, so from that day on, he would be a carpenter. For the next 15 years or so he made his living as a renovation carpenter.
For some reason when well into his 40s he abandoned that craft to study law at Osgoode Hall, of York University, one of the best law schools in the country. He had no trouble passing: I read many of his student papers. Together they constituted a reasoned critique of Canadian society, seen from the point of view of its legal structure.
So here he was last week, barely started on his new profession, but already entrusted with the defence of a man who, it seems, had been in trouble with the law for many years, but had never before had a defence, simply because, when arrested for even minor offences, he always immediately pleaded guilty, just to get it over with.
His client in truth was a street person, a panhandler, one of those unfortunate people with mental problems who have been reduced in our cruel society to making their life as best they can in the streets.
He was accused of sexual assault and of uttering threats, and the Crown, having tired of his string of petty offences, was prepared to put him away for many years. Rob regarded that as an unjust attempt by the Crown, and was determined not to allow it to happen if he could help it.
The doubtful bona fides of the Crown were exposed immediately, when they delivered the accused man, who had been in jail without trial since his arrest eight months before, in an orange prison jump suit. When Rob objected the prosecutor told the court he should have seen to it in advance that the man had street clothes available to him. “I did,” said Rob, “I delivered them to the jail last Thursday. Where are they now? And why have they not been given to him?”
The jury was not yet empanelled by the beginning of the second day when the accused was again delivered in prison clothes. This time, the judge, Mme. Justice Nancy Backhouse, intervened, saying that if this happened on the third day, she would take action and make an order that the clothes be produced.
Meantime, an argument had been going on about the admissibility as evidence of a video taken by police when the accused made his first statement about the alleged offences. Evidence was heard from several police officers about this interview with the accused, and about the moment of his arrest in an apartment house corridor. They said he was told anything he said might be used in evidence against him, and that he had a right to a lawyer, but he said he didn’t want a lawyer, he just wanted to go home. My son argued that the videotape of the interview, in which his client was agitated, and in which he made a number of outbursts, was of little if any probative value in the way of evidence. The defence admitted certain facts, such as the accused had loose pants, but they opposed an effort by the Crown to introduce evidence of identity by police officers. His identity was admitted, in other words, and the defence argued that, if shown to the jury the video record was such as could prejudice his right to a fair trial. Rob never mentioned that his client was suffering from schizophrenia, but said one of the rules was that the accused must have “an operating mind”, which it was not clear his client had. He said, first, his client was not able to appreciate the caution given him, second, that the video would prejudice his client’s right to a fair trial, and third, if it was decided to show any of it, it could be edited, and an edited transcript be given to the jury.
The Crown argued the video contained immense probative evidence of importance to their case but the defence argued that the Crown had no interest in the admissions made by the defence or the stipulations made by the judge, since the prosecutor fought their admission, except by means of the video. But the next morning the judge found for the defence: the video was excluded as evidence admissible to the jury.
This was a major setback for the Crown case. The complainant, a young Jamaican woman with six children, the next day gave her evidence. She said she knew the accused from his hanging around the streets panhandling, she didn’t like him, was scared of him, and on the day in question in the coffee shop at 8 o’clock on a busy morning, he was dirty and in a dishevelled condition. Her evidence was that he asked her to buy him a coffee and she agreed. Then, as they were standing in line, she felt something rubbing across her shoulders, and when she turned around she saw his penis, which almost hit her in the forehead. She said the accused started to yell at her, swearing and threatening her with death.
Rob called only one witness, the manager of the coffee shop, who testified that she heard and saw nothing.
At this point, probably more influenced than I should be by TV courtroom drama, I felt Rob had missed his opportunity to destroy the complainant’s case: he could have ridiculed her ridiculous claim to have been touched across the shoulders by the man’s penis, but he did not make the point, thus, in my view, missing his best chance to win the case.
My view turned out to be incorrect. Without ever appearing to bully the young woman, he did, in his closing remarks to the jury, manage to pour some scorn on her testimony, and scored points by asking why the Crown had not produced any corroborating witnesses. No one, apparently, had seen or heard anything, although the complainant had claimed he was yelling and screaming at her and threatening her direly. He admitted the young woman had seen something, but the question was, what, exactly, had she seen? e admitted the yiung womazn had seen something, but the question was, what had she actually seen?He
I was not there for the closing arguments on Monday, but the jury, seized of the case, after both sides expounded on the evidence and the judge had instructed them on the law, apparently had a bite of lunch, and then within two hours returned with a verdict of not guilty on either count.
This was not only a remarkable victory for my son in his first case before a jury, but was even more remarkable in that it provided a stern and winning defence for a man who had never had a defence mounted on his behalf before. He was a poor, addled man, with mental problems, a panhandler and street person, and a black man to boot. And against all the odds, this rookie lawyer had snatched an acquittal from the very hands of the Crown. A remarkable success, which made me very proud.
The inhumane aspects of our legal system were indicated by the fact that the client, having served eight months in jail awaiting trial, was set free in the lobby of the court, with nothing but the clothes on his back. His wife, separated from him for many years, came and gave him bus fare and a coffee, but, Rob noted, the man’s stint in jail ”has for all intents and purposes left him homeless, with a loss of whatever supports he had before his arrest and no realistic chance of redress of any kind.”Canadian justice in all it's damnable glory…..