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dimanche 1 juin 2025

Il n’est pas idéal qu’un avocat qui gère un nombre important de dossiers ne rencontre ses clients qu’au palais de justice, immédiatement avant les audiences visant à enregistrer un plaidoyer de culpabilité

R v L.W., 2006 CanLII 7393 (ON CA)

Lien vers la décision


[46]         Mr. Burgess denied that he never told the appellant that he could receive a custodial sentence.  He also denied that his meetings with the appellant were no more than five minutes.  Unfortunately, there is very little documentation in the lawyer’s file concerning his discussions with his client.  On this issue there is very little, if anything, that is helpful.  What emerges from the record is that Mr. Burgess is an extremely busy criminal lawyer who testified in cross-examination that he handles as many as eight to ten cases a day in the Peterborough court.  He did not challenge the appellant’s assertion that all of their meetings were at the courthouse at times when the charges against the appellant were before the court to be spoken to. 

[47]         On the other hand, it is clear from the record that trial counsel believed, and rightly so, that there was no viable defence to the charges of making and distributing child pornography.  Counsel’s focus was on his attempt to negotiate a plea bargain, which would keep the appellant out of jail.  His discussions with the Crown attorney were directed towards either a conditional discharge or a conditional sentence.  A conditional discharge was out of the question.  He could not get the Crown to commit to any position on sentence until the Crown saw the presentence report.  In the result, if there was to be a plea it would take place before they knew the Crown’s position on sentence.

[48]         What appears to have happened is that both lawyer and client, in their discussions, were placing most of their attention on a conditional sentence with the result that jail was not uppermost in either person’s mind. The lawyer’s communication with his client could have been much better.  Brief meetings at the court house are not the most satisfactory way to communicate, particularly when counsel is handling as many as eight or ten cases a day.  Nevertheless, I am not persuaded that Mr. Burgess did not tell the appellant that there was a risk of his going to jail.  The onus is on the appellant in this respect. 

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