Reflections on Freedom

Imagine facing a significant penitentiary sentence one day, and then being completely free the next, as if nothing even happened.

A few weeks ago, a client with no criminal record came to my office. This person was facing very serious charges. One charge in particular was more serious than I was used to seeing, certainly this early in my career. I remember the client called me as soon as he was let out of custody, but at the time, I did not know the reason. I told him to schedule a consult with me by calling the office.

By the time the client arrived at my office, I realized he had seen several senior counsel, and with the charges he was facing, it was no wonder. I looked at his paperwork, surprised at the charge I was reading. I asked him who had referred him to me. It turns out it was a friend of his who is also a current client of ours. I took his friend on as a client when I was an articling student and have been working tirelessly on negotiating his file ever since, in part due to all the barriers that individual, also with no criminal record, is facing. “I never saw my friend smile after he was charged until he met with you.”

I put everything aside and just listened as the client detailed his story. He was almost kept in custody despite having no record. Once released from custody, strict and seemingly arbitrary and conflicting conditions were imposed. I explained my view on the matter, which was mostly that I was in disbelief over what was happening to him. He needed those charges gone. “I think I found my girl!”

Fast forward a few weeks after I got on record and the charges were withdrawn at the request of the Crown due to no reasonable prospect of conviction. Proper investigation, police work, and Crown discretion make all the difference—I will not take credit for those. I knew from the outset that this matter was either going to get withdrawn or entail a lengthy fight to the end, including a preliminary hearing (since the offence carried a maximum sentence of 14 years or more) and a trial in the Superior Court of Justice. This withdrawal, especially so early in the proceedings, was the best-case scenario and a HUGE weight off the client. “I have my life back!”

Imagine something as important as your freedom being partially determined by something, or several things, that are completely out of your control.

Had a different hand been dealt, however, the client could have been in jail for months or even years awaiting those proceedings. It is scary to think about. I have personally seen this before. Carolynn Conron, my partner in crime, ran a human trafficking trial where our client was acquitted after spending three years in custody awaiting her day in court. Changes of counsel, issues with disclosure, timing... Sometimes it comes down to the luck of the draw on the circumstances surrounding the case. Imagine something as important as your freedom being partially determined by something, or several things, that are completely out of your control.

What if the client had listened to the lawyer he spoke to at the time of arrest and kept silent instead of urging the detective to urgently look further into the evidence following the alleged events? What if the Justice of the Peace presiding over his bail had remanded him into custody, as he or she was originally going to do before the new evidence was disclosed in the nick of time by the detective? What if the Crown had not reviewed the file further after same? I shudder to think.

In some sense, nothing is different for this man now than it was a month ago—his freedom is no longer at risk of being taken away. He is free to go where he wants, when he wants, without worry. In other respects though, this man is now a different person, haunted by what could have been a very different ending.

Indeed, I just set another jury trial, where twelve individuals will decide the fate of another client with no record, based largely, if not entirely, on the oral testimony of different witnesses. When charges are too serious to resolve, but the Crown feels it needs to proceed, the matter has to be litigated.

I recently went to the Elgin-Middlesex Detention Centre (EMDC), a maximum-security jail in London notorious for overcrowding and a recent string of deaths. During this visit in particular, I saw that several inmates were playing “Telestrations” with a volunteer. This is the very same game I recently bought for my family after realizing how fun it was during a friend’s birthday party. Each player begins by sketching a depiction of a word dictated on a card by the roll of a die. All players then pass their sketch to the next player, who must guess what was drawn. Players then simultaneously pass their guess—which hopefully matches the original word (or does it??)—to the next player who must try to draw the word they see—and so on. I watched them enjoy every moment before it was time for the volunteer to exit the locked and constantly observed room within the unit.

Life on the other side. The same in some ways—same game, same silly pictures, same skewed answers, same laughing out loud—but it’s different when you don’t get to go home after to hug your loved ones or sleep safely and soundly in a comfortable bed.

I do what I do because I get to champion for freedom. I was crunching some numbers and realized 95% of my clients have no criminal records or any prior involvement with the police, and the very few that do have very dated records (10+ years). A large majority of them work good jobs and have strong support systems in place that allow them to pay the thousands of dollars it costs for me to advocate for the best results possible.

This was my first Legal Aid case. My portal was not even set up when the client met with me. I took the case on in principle, being paid a fraction of my usual hourly rate, and I am glad I did. It is perhaps lucky to have the type of clients that I do—along with the drive, dedication, passion, and resources to deliver the results they seek in the face of extremely high stakes—but this is precisely why I recently became empaneled with Legal Aid, because it serves a greater purpose: to ensure access to justice for all. Freedom should not cost a thing, but you cannot put a price on it once it is being taken away.

Life is not black and white, and there are always two sides to every story. Judges sometimes say the truth will usually fall somewhere in the middle, but most people who would have looked at this client’s charges would have thought that he should never see the light of day again. Therein lies the difficulty of being charged in the first place—accused persons are presumed innocent, but their names cannot actually be cleared in law until the charges are dropped or they are acquitted.

Now that the client’s charges have been formally withdrawn, he can resume his normal life. He still has no criminal record and he is free to go about life the way he chooses... But unlike many, he now knows how easily that can and did change.

What separates me from most of my clients?

Luck.

Sam Puchala is a criminal lawyer at Conron Law Professional Corporation. She focuses her practice almost exclusively on offences against the person, including all levels of assaults and sexual assaults. She is tenacious in her advocacy and negotiations, insisting on finding creative solutions to legal barriers in order to secure the best results for her clients. She offers a free 30-minute consult for those charged with crimes out of principle, as she feels nobody should have to pay to know and understand their most fundamental rights.

Thanks also to the Middlesex Law Association for publishing this piece in the March 2020 issue of the MLA Snail.