Judge-Led Intensive Case Management Court (JICMC) Certificate system
The “guilty plea certificate”
The CLA stands firmly against the new Judge-Led Intensive Case Management Court (JICMC) Certificate system designed to incentivize guilty pleas among unrepresented individuals. The CLA strongly urges its members to refuse to accept these “guilty plea certificates” out of concern for our members’ own professional liability, civil liability, and for ethical reasons.
The new certificates cover only those unrepresented accused whose matters are in the Judicial Case Management Courts and extends a $1,055 block fee for coverage only up to completing a JPT and/or pleading the client guilty. These certificates do not extend to representation at a trial or preliminary inquiry and are ineligible for any additional authorizations. They are therefore only “guilty plea certificates” as they offer no route to “not guilty” with legal representation.
Morality & the Legal Aid System Being for the Indigent
There is no financial eligibility requirement for these “guilty plea certificates”, meaning they will be offered to unrepresented individuals regardless of their financial means. While this new system permits a lawyer to accept the “guilty plea certificate” and then secure a private retainer for the trial, issuing certificates and subsidizing those few accused who can afford to hire counsel for trial simply depletes scarce legal aid resources that are badly needed for the vulnerable and indigent. Although nothing has been said by the government about this issue, as a matter of logic, these certificates will either be paid from existing, and long underfunded, legal aid coffers or through new earmarked allocations. The impact of taking money from Legal Aid’s meagre budget is self evident. If new funding is forthcoming, it is telling that the government has chosen to provide funding to coerce guilty pleas for those that may be able to afford counsel but no additional funding for trials for those in financial need in the already badly underfunded Legal Aid system. Either way, this new initiative will predictably lead to less funding being available in the short-term and in the long-term for the defence of truly indigent accused persons who genuinely cannot afford a lawyer and require a trial. This will have a disastrous and disproportionate impact on individuals from Indigenous and racialized communities, as well as those suffering from mental illness.
Professional & Civil Liability Issues
For the vast majority of unrepresented accused, this new certificate will create a coercive dynamic that incentivizes an accused to plead guilty by only offering legal representation on guilty pleas. If most of these accused persons really wanted to plead guilty, they surely would have already done so at an earlier stage with the assistance of duty counsel. The incentivization of pleas puts counsel who accept these “guilty plea certificates” in an impossible situation, which inevitably will lead to claims of coerced guilty pleas or ineffective assistance of counsel.
A criminal matter is not a series of stages where competent defence counsel can involve themselves in a piecemeal fashion. Consequently, the CLA also strongly cautions its members against accepting a “guilty plea certificate” and conducting a judicial pre-trial where counsel will not be trial counsel. In these circumstances, making admissions or agreeing to facts will also inevitably lead to unsatisfied unrepresented accused persons, and will, again, expose our members to potential lawsuits and claims of ineffective assistance.
The pandemic has already placed enormous pressure on accused persons and counsel – especially junior or less established lawyers. The CLA believes in protecting its members and urges its members to not accept these “guilty plea certificates”. The Crowns and Judges at these pre-trials will not be sued or face allegations of professional incompetence. It’s the defence bar that will bear the brunt of this ill-conceived initiative.
We Will Not be Complicit in Coerced Guilty Pleas
The government’s message is clear: They are not truly interested in helping the vulnerable or indigent. Instead, they seek to clear the current backlog of cases by coercing unrepresented accused, rather than through a proper re-evaluation of the public interest in continuing many of the prosecutions upon which the backlog is built. They want the CLA and the defence bar to be complicit in this coercion. We cannot ethically do so. We refuse.
The CLA Board & Executive