Law and Psychiatry 5


I have been seeing a young  forensic psychology grad student for anxiety and  behavioural science tutoring.  A few months ago, in not one of his more stellar decision making moments, he and his buddies smoked a joint while parked in his car near the university.

Naturally the boys in blue show up and after rolling down the window observed a couple of young men happily travelling the red-eye express. My student friend who is prone to panic attacks which can lead to ataxia (lack of balance) was in the driver’s seat and was asked to perform a field sobriety test which he failed. He was hauled off  to the crowbar hotel by the local constabulary and ordered to provide a blood sample and was charged with both possession and driving while impaired, though the vehicle  was stationary.

When I next met with my young friend we did some research which demonstrated problems with the accuracy of a field sobriety test as applies to marijuana and a poor correlation with blood  levels unlike the case with alcohol. However he needed a good lawyer to cross-examine the arresting officer and argue this research finding in court.

Now acquiring an attorney to defend him proved to be surprisingly complicated. He did not qualify for legal aid as his family earned in excess of their rather austere $12,000 yearly limit. However as lower middle class they lacked the funds or assets to retain an attorney whose  costs  would be in excess of $10,000. In the USA he would be assigned a public defender, not so in Canada. There is no state obligation to fund an attorney. This brings us to an application for a court order for state funding known as a Rowbotham application.

Over the last number of years there has been a dramatic increase in the number of applications brought by individuals accused of serious criminal offences seeking court orders for government-funded legal counsel.  

The starting point in any discussion about legal funding is an accused person’s constitutional right to a fair trial.

Fairness is the foundation of our criminal justice system.  It is only through the operation of fairness that society can have full confidence in the justice system.  It is only when fairness is ensured that we can rest well knowing a conviction was just and proper.

Our legal system is adversarial.  The state is a well-funded legal machine comprised of skilled prosecutors, expert witnesses, and police investigators.  An unrepresented accused, lacking legal training, is in no position to defend themselves against such an adversary as it would be a unlevel playing field.

However at the Rowbotham hearing his application was denied because he was ostensibly educated enough in legal matters to adequately defend himself in a “uncomplex” criminal matter with low seriousness rating because jail was not going to be an outcome. In brief he was qualified to self represent.

Now my view is that this is ..


It difficult to understand why the government is working so hard to keep an accused person from having a lawyer when the Rowbotham case clearly and simply recognizes “the right of an accused charged with a serious offence who lacks the means to employ a lawyer to be provided with funded counsel at his or her trial,” Of course seriousness is open to interpretation when one considers the career consequences to my friend upon a conviction.

It appears that criminal trial fairness in Canada is available only to the very poor and those of means.

As it turns out the family of my client were able to secure a loan and fund a legal retainer.

The case is still before the courts and might take many months before it goes to trial.

Whatever one’s opinion on the subject, marijuana possession is going to be legal in Canada in under a year. My friend made a mistake in judgement. He should not have his life and career derailed over that before it gets off the ground, by virtue of non representation. It is the sad reality that in Canada you now often need a lawyer not only to defend your charges but also to fight for your right to even have a lawyer.








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4 Responses to “Law and Psychiatry 5”

  1. Kristina says:

    Why should not his life be ruined? The predictable consequence of his actons. It is illegal to possess and use marijuana in canada. Ao by possessing and using dope he knew what he was doing. Many life choices result in ugly lasting consequences……. unprotected sex leads to unwanted pregnancies and unwanted child care responsibilities.

  2. Claude Francis says:

    He might have made an error in judgement but it begs the question of whether he would have made the same error again had he not been caught. The safety of the public is what should be first and foremost here. The officer was doing his job by making sure he would not be driving and to discourage future errors in judgement. Chances are this won’t even go to trial and will be thrown out because of impending legalization.
    If I was him, I would have admitted guilt and asked for leniency from the judge and taken my lumps. It would save he and his family a lot of cash and the taxpayer the cost of a drawn out legal case where only the lawyers benefit.
    There has to be some kind of acceptance and ownership for risky and bad behaviour in my view. If you must partake, do your shit at home and stay away from the car.

  3. Allan Seltzer says:

    These are valid points. My focus however was not on the crime itself and its moral ramifications, but on the problem of funding a defence.
    It is agreed that smoking up in a car is bad judgement. It is up to a judge to balance sentencing principles to achieve a fair result, if found guilty. But you need a lawyer for these arguements.

  4. Carole Kocian says:

    Sounds like lawyers in Canada are as greedy as those in the US when there’s no money in the case. The pro bonos provided by the courts are largely uninterested in doing a quality job on any terms. They are on a rotating list of trial lawyers and it’s like anything else that’s free. It’s worth what is paid (nothing). The veracity of the field breath test, however, could be something to make a name for oneself if it were pursued and proven to be unreliable.

    We chose to have a personal liability insurance policy for our property in Canada. The Canadians said “Oh, they don’t do that here” i.e. sue for accidental injury on privately owned property but we had the feeling that it wouldn’t be long until it would be found to be a possible gold mine. In that case the attorney would get a hefty chunk of the payoff. Didn’t happen to us but we were prepared.

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