Exposé

Katharine Conway is the pseudonym of a Vancouver lawyer who wishes to remain anonymous.

I have been a lawyer for nearly 10 years, and for the last six I have acted almost exclusively as a criminal defence counsel. I'll defend anyone who asks me for my help. The whole area of the "justice system" has been a hot topic lately - what with Paul Bernardo, O. J. Simpson, and all those "crazed juveniles" out there. I would like to give you an insider's perspective on a few of the things I deal with every day.

Perhaps you would like to know how your hard earned tax dollars are spent in the pursuit of justice. First you should be aware that police often come to court to testify on their days off, or before or after their shifts begin. In both cases, they get paid overtime for appearing in court. If they do come to court during their shift, one has to wonder who is patrolling the streets. When I briefly acted as a federal prosecutor in 1986, I was routinely asked by RCMP officers to schedule trials on their days off so they could get the overtime.

Many federal prosecutors (they are the ones who prosecute federal statutes such as the Narcotic Control Act, Food and Drug Act, Excise Act, Fisheries Act, Income Tax Act, etc.) are private lawyers paid under contract at very juicy hourly rates. (I know, I did it for one year.) They bill for every minute they spend on a file, including such things as traveling to and from the courthouse. They have little incentive to decline to prosecute cases which are unlikely to succeed or are just plain stupid.

For example, in New Westminster Provincial Court one day, I noticed two New West police officers had been sitting in the courtroom since 1:30 p.m. (it now being after 4:00 p.m.). I asked them what they were doing and they told me that they were waiting for the trial they were to testify in to start. They were there to testify against a young man for possession of one-tenth of a gram of marijuana - what is commonly called a roach (what is left after one has smoked a marijuana cigarette). The trial finally got started with less than 15 minutes of court time left. This meant that the trial had to be continued on another day, with two police officers either getting paid overtime or not patrolling your neighbourhood for another half day of court, a federal prosecutor getting paid handsomely by the hour, court staff, judge, sheriff, (you get the picture) - all over a piece of marijuana smaller than a pencil eraser.

I have also read enough police reports to tell you that it is very common for at least five police officers to be involved in the undercover purchase of a gram of marijuana, a quarter gram of cocaine or a tenth of a gram of heroin. I have seen up to eight police officers involved, but five is about the average.

The first officer will actually approach the seller (if it is a purchase on the street - not very common these days) or will make the call and arrange the meet (if it is a "dial-a-dope" purchase - where one simply orders one's narcotics over the phone and arranges for delivery like a pizza). There will be at least four other officers who make observations from every angle. This ensures two things: (1) that the accused will not escape after the sale; and (2) it maximizes the number of police officers

who get on the "overtime gravy-train". I have actually read police reports where it took three police officers (not including the one who made the drug purchase, nor the observers) to arrest and to search the vendor of one gram of marijuana. One officer arrested the accused and read him his rights, while one officer searched his right pockets to find the rest of the man's inventory of drugs, and another searched his left pockets to recover the "buy money" - a whopping ten dollars.

I forgot to tell you that these five to eight police officers start their twelve hour shift with a lengthy dinner in order to discuss their strategy. Only then do they go out and start making drug arrests. Most nights they will make one or , if really pushing it, two arrests. That means for those twelve hours, these officers are not walking a beat, or driving patrol in your neighbourhood, or available to answer a call for help to your home.

I recently attended the Libertarian Supper Club meetings at which Prof. Neil Boyd and Dr. Ronald Hamowy spoke in favour of abolishing our drug laws. I agree with them absolutely. I have often said, and so have many police officers and sheriffs to whom I have spoken "off the record", that if they ever legalize drugs we are all out of a job.

"Now the girls are not stupid. They want to make sure that these guys are not cops. The police officer has to allow the hooker to grab his crotch or he has to grab the hooker's breast."

Now, let me tell you about the vice squad. Not so much in the last year - the police have shifted their focus, as they do when pressured by various interest groups - but prior to that, all night, every night, police officers would go out and arrest street prostitutes. As you may know, prostitution is not illegal in Canada, only communicating for the purpose of prostitution in a public place is. (Does this strike anyone else as terribly 'Canadian' ? It's O.K. to sell sex for money, we just don't want to talk about it.) So, in order to arrest the hookers, officers drive around (in lovely brand new leased Jeep Cherokees or Jimmys) and pick them up.

Now the girls are not stupid. They want to make sure that these guys are not cops (they also operate under some weird notion that cops are not allowed to lie), so they ask for proof. The police officer either has to allow the hooker to grab his crotch or he has to grab (under the shirt) the hooker's breast. Aren't you proud these things are being done in your name and with your tax dollars?

In my experience the vast majority of crimes break

down into the following categories:

1) alcohol related offences

2) drug related offences

3) 'otherwise nice people' offences

4) 'true criminals' offences

5) offences committed by juveniles

There are, of course, the crimes of pure greed (e.g. stock fraud, large scale credit card fraud, counterfeiting, and the like), but these are either remarkably rare or surprisingly hard to catch.

"It is amazingly cheap to accommodate one's alcohol addiction. (But) let's face it. You better be doing something that is going to generate a fair bit of income if you're going to be a junkie."

Alcohol related offences encompass such things as the drunk stumbling and falling through a window (mischief), fights (assault), and shoplifting (theft either of food, because he's spent all his money already on alcohol, or of alcohol). These offences are committed by someone who is addicted to alcohol.

While someone may do lots of stupid things while he's drunk, many of those things really fall into category 3 or 4. I have often spoken on behalf of a client who is an alcoholic and I have never had to say that my client robbed a bank or convenience store, broke into someone's house or knocked someone down in the street for his wallet because he was an alcoholic. It is amazingly cheap to accommodate one's alcohol addiction, particularly if one is not too picky. You can be on welfare and be an alcoholic without having to resort to serious crime to supplement your income.

Drug related offences are robbery, breaking and entering, stealing purses and using the credit cards, selling drugs and prostitution. Let's face it. You better be doing something that is going to generate a fair bit of income if you're going to be a junkie. I have had clients who used up to $1200 per day of heroin. That is, however, the exception. It is more common to have heroin or cocaine users requiring something in the area of $100 to $300 per day. That's still a lot of money. When you figure out the discount on stolen property, you would have to steal anywhere from $200 to $1000 per day to keep up your habit. I have only ever had two clients who earned enough from their jobs to support their habits without resorting to crime. All the rest had to.

'Otherwise nice people' offences are such things as drunk driving (this may overlap with the alcohol related), and domestic abuse. These crimes cross all barriers - race, age, income, addictions, education. I don't want you to think that I think these offences aren't serious, but they really sometimes do happen to 'otherwise nice people'.

In my opinion, true criminal offences (the kinds of things committed by someone who is not doing it to support a drug habit and may actually be dangerous to you and me) are such things as planned murder and some sexual offences. The reason I say "some" is that under new legislation (thank you Kim Campbell!) I have had clients charged with sexual assault for patting a woman's behind. If you have sexual relations with someone whom the law deems is "incapable of consenting to the activity", as for example, after a few drinks, that's a sexual assault. No, I mean real sexual assault - the one that used to be called rape, or any sexual assault of children. These offences are relatively rare, although they get a disproportionate share of media attention.

When I was in high school if kids got into a fight, they were sent to the principal's office, their parents' were notified, and maybe, they were given detention or suspended for a week. Now they get charged with assault.

Offences committed by juveniles are generally car thefts (there is some organized, commercially oriented car theft, but the majority of car thefts are by kids), and shoplifting (most often done by teenage girls who usually steal cosmetics or small pieces of costume jewelry). The stuff that we are hearing about in the media - "roving gangs of crazed teenagers" stuff - is really unexplainable and not all that common. Maybe there is a breakdown in the morals of the family, or maybe they have lost hope for the future, or ... who knows.

What I can tell you is that the system that presently deals with kids committing crimes is seriously in need of an overhaul. At least in Vancouver, all eastside high schools have a full time police officer who is stationed in the school. If a fight breaks out in the schoolyard, it is referred to the police officer. When I was in high school if kids got into a fight, they were sent to the principal's office, their parents' were notified, and maybe, they were given detention or suspended for a week. Now they get charged with assault.

I had a client (14 years old) who was charged with robbery because he and his friend picked on the class nerd and told him if he didn't give his baseball hat to my client he "would be sorry". Then my client took the hat off the other kid's head. Technically it is a 'robbery' because any theft accompanied by a threat of violence is robbery. Another client was charged with breaking and entering when he (another dangerous 14 year old) crawled under a partially open garage door behind a corner grocery store and stole a case of 12 empty pop bottles, and then took them into the store to try to get the deposit money. Now, the judges on these cases, fortunately, saw these cases for what they were - cases that would, in years past, have been dealt with by the parents or the schools and not by the criminal justice system. These kids were all given slaps on the wrists.

The real harm in prosecuting these kids for such foolish acts is two fold: (1) the public simply hears about another breaking and entering or robbery, and not the facts of the cases, which further perpetuates the myth of "roving gangs of crazed teenagers"; and (2) the kids see only that they get virtually no punishment for crimes as serious as robbery, and breaking and entering. These young people learn from their experience with the criminal justice system that it's a joke - they charge you with really stupid things and you don't get punished very much.

Truly serious crimes should be dealt with appropriately, but the things that are basically just kids being kids (i.e. stupid) should be handled outside the criminal justice system.

In order to start addressing the threat to our society from true criminals, I think we have to get rid of the other ones. Once drugs are legal in this country, we can actually begin to assess how large our criminal problem is. Until then, we simply turn large numbers of people into criminals by artificially inflating the price of a substance without which those people do not think they can live. As far as they are concerned, they really don't see that they have much choice in the matter. Withdrawal from narcotics is not just going to be uncomfortable or make you kind of grouchy for a few days or weeks. It is a horrible, physically painful experience. My clients would pretty much do anything not to have to go through it.

Some people would argue that by sending addicts to jail we can give them the help they need to clean up. There are just two problems with that. First, no one cleans up until he's ready. A person may go through physical withdrawal, but without a very high level of commitment, which can only come from the person, he won't stay off drugs. Second, there are at least as many drugs in prison as outside. Recently Corrections Canada (the federal bureaucracy in charge of the prisons) put forward plans to supply inmates with bleach to clean their needles. It seems the rate of HIV infection is getting so high that the government felt it necessary to take this extreme step of blowing the cover off the great myth of rehabilitation in jail.

As a defence lawyer I stand up in front of judges every day and urge them not to send my client to jail. I do so because I see it as wrong to punish someone for a crime which would not have occurred but for the inane drug laws

Another problem that results from the criminalization of drugs is that the punishment for offences becomes distorted. As a defence lawyer I stand up in front of judges every day and urge them not to send my client to jail, or to send them for shorter periods of time than the public might think appropriate. I do so, in part because I don't believe anyone comes out of jail better than he went in, but largely because I see it as wrong to punish someone for a crime which would not have occurred but for the inane drug laws. I am often successful in making the judge see my client as someone who is sick and not as someone who is really bad.

The problem is that a person who robs banks should be punished. On the other hand, is it right to send someone away for something they did because they are addicted to a substance "society" has chosen to make artificially expensive? If drugs were legal and the excuse of drug addiction were not available to an accused, we could then seriously address the issue of what would be moral and proper penalties for offences. Until that happens, someone like me is going to try to convince a judge that it is wrong to treat my criminal clients like criminals.

Now I realize I am painting some very broad strokes here, but, the foregoing generally reflects my experience in the criminal courts. For me the bottom line is that if drugs were legalized (besides my having to line up with all the out of work prison guards, sheriffs, police and lawyers) we would all be a lot safer in our homes and walking our streets.

I would never have believed that I would see the fall of the Berlin Wall, and yet I did. I know that this is a fight we can win once people get over the hurdle of all the societal rhetoric and propaganda. When you actually talk to people about their fears and point out the real problems associated with the drug laws, many people are surprisingly receptive. We must keep the topic in people's faces and get them used to the idea. I would urge you to support in any way that you can the legalization of drugs.

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