Nuanced. - 62. Nikos Harris: Crime, Law & Justice in Canada

Episode Date: June 28, 2022

Aaron Pete and Nikos Harris discuss criminal law, justice, mandatory minimum sentencing, Peter A. Allard School of Law, and education. Nikos Harris is an award-winning professor who also has extensive experience as appellate counsel. He has authored numerous articles on issues in criminal law and evidence, and his writing has been cited in a number of trial and appellate judgments. Nikos has served as a guest speaker for a number of organizations including Continuing Legal Education, the Trial Lawyers Association, and Crown Counsel of British Columbia. He is also is an advocacy advisor for the Supreme Court Advocacy Institute which assists counsel in preparing submissions for the Supreme Court of Canada. Nikos served as a judicial clerk at the British Columbia Court of Appeal and was a Raymond Herbert Award recipient.Send us a textSupport the shownuancedmedia.ca

My name is Nikos Harris. I am a professor at the Allard School of Law and have also been a lawyer for the past 25 years articleed with the Ministry of the Attorney General and have been working over the past 24 years at Peck & Company that is a small criminal law firm. Right. So how did you get started in law? What was your trajectory going maybe through high school and then kind of leading into a legal career? Yeah, no, that's a great question. I think like many people, I sensed even in high school that math and chemistry and sciences was not something I took naturally too. And of course, I think like many students today, law is always in the news. It is constant. If you look at almost any story, I would say half of them implicitly or explicitly involve some legal issue.

So it was sort of somewhat on my radar, though not that specifically. And I think like a lot of people, I did an undergrad at Simon Fraser University, which was a great, great place to do an undergrad. I did an undergrad in political science. And then there's a sort of what now? I did a great program, and by the way, I don't think it gets enough publicity. It's called the Parliamentary Internship Program. Again, you graduate in political science. You know, what are you going to sort of do next?

And a friend of mine said, hey, go look at the Bolton Board. There's something about this parliamentary internship program. It was a great program where you go to Ottawa and you have an orientation, and it's a program where you work on each side of the House of Commons. You work with an MP on the government side and then on the, the opposition side and you get to do a lot of traveling around to different countries to look at their political systems. I think as someone who enjoyed political science and travel, it was the ultimate dream. It wasn't paid much. It was sort of a stipend, but it was a great,

great experience. And I learned a lot from it. But one thing I learned from it was that careers in politics, even in the staff side of things, are pretty. short term. You could see people working in MP's offices. It was really interesting. They'd do it for a few years. And then their MP would be voted out or their MP would decide to do something else or go to cabinet and not take them along with them. And I sort of occurred to me that this is probably a shorter term environment. I need to get a skill. I need to get myself in a position where I've got some sort of more job-focused abilities. And it was really limited options.

And I thought, you know what, a law degree. And I think this turned out to be true, though a lot of ideas I had didn't, I thought, you know what, it's going to be quite interesting. I get the feeling of studying law is going to involve a lot of policy and politics and interesting issues. But it's also going to teach some tangible skills. And that really is something I learned being. on Parliament Hill for the year, if you don't have something, you can end up going into

long term, you can end up working in this EMP's office and get a contract here and maybe work for a lobbyist or so on and so forth. But to really develop your own career, you're going to have to get a more specialized skill. And I thought law school would be a good balance between sort of, you know, something interesting academically, but come out of it with some more job-focused skill that I didn't think I had just with the political science undergrad. Right. Was it intimidating? As a professor, you've talked about this feeling of imposter syndrome, and personally, I've felt that maybe I don't fit in with the peers at law school, that what their priorities are are somewhat different than my own and a sense of obligation to align my values

with whatever their values are. Was it a clear-cut journey into law school that you felt the confidence that you would be good at this, that this would be something you'd be capable of, Or was that an intimidating process to do the LSATs? Yeah, it was an intimidating process. One thing I have to say, and I guess people say this a lot when they get older, it was different when I was there. I don't think it was as intimidating a process. I knew it was going to be tough to get in.

But there wasn't the same whole industry around the LSAT. You basically bought a book to familiarize, familiarized yourself with it. you did a couple practice tests and I think that's what most people did and I think in that atmosphere it wasn't as hard to to do pretty well because you didn't have you weren't competing against people who were taking entire courses and studying for multiple years and so on and so um that process was definitely challenging but it it didn't feel as stressed you just I was in Ottawa because I was with the parliamentary internship program they told you to go to some classroom at university of Ottawa, and there's sort of a rag tag group there sitting in a classroom.

It didn't feel like I know the pressure people have today to be studying, taking courses, sometimes anticipating taking multiple LSATs. In terms of going into law school, you know, there is, you're constantly wondering whether you belong. And it's ironic. Sometimes the people you look at who see, oh, they're the most comfortable. They really do feel like you have a conversation. with them at some point and find out they're suffering from the same things.

I think what really helped me, and I actually advised people of this who are thinking about law school, the fact I had some background in political science. I was really lucky. I had been introduced to this thing called the charter. I had been introduced to the idea of a bill becoming law. I had been introduced to even some basic, a couple cases discussed. And I really don't think, some people approach me and say, what should I exactly take for law school? I think one of the great things about law school is the diversity of backgrounds people have, whether it's music and sciences or entertainment.

And of course, what's great about law, people don't always want to end up doing those things, but you can take those interests that you've developed in your pre-law school life and find a legal career in them. So I think that diversity is great. I just found, because law school is a really pressured environment, and I advise students of this, take one introduction to political science course, take a, you know, maybe an upper year Canadian political process or something. It just grounds you in the basics. And that's something as a professor I have to constantly remind myself of. I really try and put myself in the position of somebody who,

who's maybe taken sciences or music and didn't have access to sort of the political process and so on. But I'm always amazed halfway through the year, someone puts up their hand and says, you know, you keep talking about the bill becoming law and I haven't had the confidence to say you were making assumptions that I had some of that background and I don't. And it's something I constantly tell my students. It's amazing how often I get, this is probably a stupid question, and there really are no stupid questions. I am so happy when a student wants to engage, but usually that question is something that is on the minds of half the class, but people haven't had the confidence to put up their hands. But I think just the fact I had some grounding.

Sure, I was learning a lot of new things, but I felt like my undergrad gave me just some of the basic, building blocks that I felt like I wasn't behind as I was sitting there in the classroom. Right. And so going through law school, did you feel like you had a community? I know that previously law school was maybe more intense in the amount of readings that you had in the disconnect between professors and students. I think a lot of that has changed and perhaps for the better. But when people ask me about law school, like how many hours of reading, it was like, from my understanding of lawyers who went to law school 10 years ago, it was all like 24 hours a day kind of amount of work. Yeah, no, that's a really good issue. I have to say, I did find a

community and a couple of things. I really do believe that UBC law, Allard Law is excellent. It's obviously got a great reputation, one of the top schools in Canada and the world. But I think one of the great benefits, while people may have been internally competitive, it was not externally competitive. I really felt the class had a good vibe to it, a good engagement, quite a supportive group. And this is, I think, before the concept of wellness was really being explicitly advocated, I did feel it was a supportive class. Hey, someone's having a tough time. Let's help them out. I think it was also held, which we went away. from and we have come back to having that smaller group. It's such a stereotype, but it's true

that in law school they put you in first year and basically a group of 40 or 50 that you take most of your classes with. Those are lifelong connections. It really is true. There's a few people I've got to know outside of those groups, but mostly it was within that group. You know, finding a community was still a bit of a challenge. And I think I knew going to, in. I wasn't going to be part of a business law. I wasn't going to be part of a sort of a corporate law. I wasn't going to be trying to competing to get in big firms. I think they offer and I still think they offer great opportunities. I knew it wasn't for me. So finding a community was interesting. I think the place that really helped me find it, which is still going strong today,

the law students legal advice program. You know, this great program. And now we've got a lot more options and clinics and so on. Back when I was in school, we essentially had one criminal clinic that you could do for credit and the law students legal advice program you could volunteer at. And LSLAP is an amazing organization. It's essentially BC's second largest legal aid provider after legal aid BC, which is like a $100 million budget. And it's just based on a volunteer model, mostly first year students volunteering their time,

while they're in first year law school, which is the most intense thing, I'm always so petrified that there's going to be a first year class saying, we just can't do it anymore. But I think that people entering law school wanting to do justice, end up volunteering at it. In any case, clinics all over the city, including specialized clinics, I was at Carnegie Center right at Maine and Hastings and was going down, I think, every couple of weeks for a clinic and getting files. That gave me a community. People who were interested in things like access to justice, people that were maybe thinking about ideas of litigation and criminal law. I ended up serving on the executive. And I didn't feel law school was overall alienating because I thought it was fairly supportive. But there was a point

when I wasn't participating in sort of the programs to sort of get matched with a major firm. I think there would have been more of a chance of feeling a bit left out. The people that were involved in both volunteering and serving on the executive for Ellis Lap, we're often on a bit of a different career path. And I think that really helped provide a community. And I think as we've built up the clinics at Allard Law, it's got many benefits, but it's honed down that community. So I think of myself, I ended up getting really interested in criminal law. I was starting to get interested in as a student, but there probably wasn't an easy criminal law community to sort of identify. There may have been some people, as I say, involved in the El Slap.

Now with things like our Crim Clinic and the Innocence Project, what I see those students do is they have a strong, supportive community. And again, I think with a lot of almost every week, there's big firm events and so on, so that that has a very natural community. I think there's a real danger of students sort of feeling like I don't fit into that. Do I have to do all this on my own? I think the fact that there are specific clubs and clinics that focus on things like access to justice and criminal law gives students a group around them.

And not only is that important for engagement, they pass information around. So-and-so just lost their article student, apply there. there's a volunteer opportunity at this organization. Hey, there's this new case coming in. We should, you know, volunteer, you know, with the lawyers to do it. Just information sharing. Our careers offices has also been great in creating a lot more specific information about that. But I've noticed with my students, initial criminal law, I used to sort of advise them as, listen, I know there's nobody out there going to help you. So let me try and give you some tips. Now they're like, no, I'm part of the criminal law club. I'm doing the Innocence Project. I'm volunteering in an office, and I've got a criminal law articles lined up. So I think there's a lot more support than maybe there was at the time I was a student. Interesting. How did you determine criminal law was an area that pulled at you? I like the story in Harry Potter.

There's this idea of the golden snitch. And the golden snitch is like whatever inspires you that you chase forward. And it seems to, it seems like we don't understand where that comes from. what makes a person interested in art or a certain field of career. It's just, it's something that pulls at you. So I'm interested to know how did you know it wasn't business law? It wasn't corporate law. How did you know it was criminal law?

Yeah, that's a great question. And I think part of the beauty of law school, and some people have this, I didn't. I had no set thing that I thought I would be doing. And I actually encourage people, even if they come in with an interest and sometimes I follow it through, one of the reasons we take you through first year with a seven different areas of law, at least these days, is sparking some interest. I think what I had a sense of is that I was interested in litigation as a concept and probably just watching some TV shows and following cases. I also occasionally would actually go down, something I really

encourage people to do, go down, I would go down to the law courts and sometimes watch trials. And I thought, wow, there's nobody charging me admission at the door. This is fast. There was a case where the former Premier British Columbia was alleged to have made some illegal stock trade. And I went down to provincial court and watched some of the best counsel in BC at the time, you know, dealing with all kinds of interesting evidentiary issues. And I thought, you know, this is, this is even before I was in law school. This is just something interesting to sort of watch. And there's a lot of skill, there's a lot of drama. There's a lot of policy, a lot of interesting factual issues.

And so I had a sense I was interested in litigation. Can you describe litigation for people who might be? Sure. This is just, and it's ironic, a lot of lawyers think it's, they go into the profession thing. Litigation is simply being in a tribunal type setting, trying cases. Most law is actually practice outside of a tribunal, dealing with solicitors' work, dealing with advising work, dealing with a really complex.

issues of putting together agreements and so on and so forth. Litigation is simply when a dispute comes up, there is a forum and it could be a very informal tribunal to going to the Supreme Court of Canada to actually have a trial or after the trial and appeal a process where two sides go to a decision maker, we call the judge, to adjudicate disputes. And litigation is now an incredibly broad concept. I think, again, through TV, most people think of the traditional courtroom. Most litigation is practiced actually outside the courtroom in terms of alternate dispute resolution, where you have a more informal setting, often with a retired judge or a senior lawyer who says nobody can afford to be in a courtroom for two weeks,

let's pare down the issues, let's take away some of the formalities and get this done in two or three days. Also, you have just regulatory tribunals. Again, people think of court, you know, the liquor board and all kinds of boards that are making incredibly important. A lot of immigration is done before various boards. and so I had a sense that being a courtroom lawyer always like talking and so on and so forth might be a good option for me but you know what even though I had some advantages coming in

I had a sense of law I didn't know other lawyers and I didn't have anything specific I found my criminal law class just more tangible you know I found in contracts and property the concepts were a little more difficult, a little more esoteric some of them. I thought fascinating issues in criminal law, but it comes down to some basics. Who hit who first? And did you actually intend to do this or not? What I found in criminal law is I could sit down with people who weren't in law school and we could have great discussions about the issues because it related to a lot of societal realities

and people could have opinions without it having to be draped in legalese. And I did a couple criminal law cases with EL Slap, but I'll tell you, and this is many people's story, it can be a random event. I took advanced legal research, and I think I had figured out, which I still believe is true today. As a lawyer, you often will not know the specific answer. The issue will be, are you fairly adept at using different research tools to find the answer, which sometimes is picking up the phone. and avoiding other lawyers. Sometimes these days it's on canly playing around. So I took advanced legal research saying, you know, this will help me develop those skills to find answers to things I don't know. And we were in the class and it was a great adjunct professor and she said, listen,

we're going to be pairing you up with lawyers. I've got one criminal lawyer that's willing to work with somebody. Is anybody interested? And I could sort of feel that moment. And even though I was in upper year law school at this point. You know, I developed some confidence. I still felt, well, should I put up my hand and expose myself as the person who's interested in criminal law? No one else seems to be. Maybe I shouldn't be.

I put up the hand and that was really the start of something. I said, okay, you're going to be teamed up with Elizabeth Bennett, who's a partner at a criminal law firm called Pectam and Bennett. And, you know, I don't even. think we couldn't Google these days. I think I did do an embed of investigation. I found out she was actually a very senior crown appellate lawyer who had decided for a couple years to go into a private firm. She was still doing a lot of crown work, but was also doing some defense work. And I was paired with her to work on a criminal law problem. And that was the start of the journey

into criminal law because I did, and I sort of had a sense. I mean, I wasn't overly strategic in my, you know, what I did, but I sort of had a sense. She is incredibly connected into the criminal law community. This is a really good firm she's with. This is something maybe to put a little more time into the assignment I was doing with her. Didn't do a perfect job. She had to direct me as to some cases to find, but I think she could see, I was putting in a fair bit of effort.

And she said at the end of the assignment I was doing for her, so she had been sort of brought into the advanced legal research course. Listen, she says, I've got a lot of research help I could use at the firm. Would you like to do a summer in the firm? And I jumped at that. And again, this was a very random process. This was not set up. I hadn't set out a million resumes.

I had just formed a connection. and so, and again, I had not thought necessarily about criminal law as a career. I worked in the firm that summer, and it was fascinating. I did do some work for now Justice Bennett at the time. Again, she was a partner in the firm, but it was at a point where Rick Peck and Mike Tammond were working on something. There was something called the Dosage murder trial. was one of the first mega trials in British Columbia, where there had been sort of a gang war going on

and six people had been charged with multiple murders. And the BC court system was trying to find its way. How do we put six people on trial at once? In any case, that summer, they said, Nicos, we've got about 50 charter issues, start working them up. And so it was a great opportunity, to be involved with other, not just the great lawyers at Peck & Company, but other senior criminal

lawyers, and to work on really interesting issues, breaching solicitor client searches, wiretap, and so on and so forth. And that really piqued my interest. I thought, and I still believe this today, you're going to work really hard as a lawyer. Every day is not going to be wonderful. I think that's just an impossible standard that TV tries to teach us. Live every day as if it was your last, Well, a lot of days are just grinding it out. But I had a sense, this work is interesting. And I don't care if you're on the crown or the defense side. It is interesting work that impacts people's lives big time.

Also, there's fascinating, not just criminal justice, but societal issues involved. I think this could be really interesting work. And I also had a sense. I think a lot of people say, I want to practice constitutional law. I want to do charter-based stuff, which is great. I mean, that involves some of the biggest issues and the biggest policy. The bottom line is if you want to practice that work, criminal law is the best fit. You could have a theft under case with all kinds of charter issues.

You could be a first-year student in an LSLAP case saying, I think we have to challenge the legislation here. because there's a Section 7 issue. And so I had a sense this was going to be interesting work. And that sparked my interest in criminal law. And I think having the confidence of seeing the interesting work that Pectam and Bennett was doing, being around El Slap, where there was people interested in criminal law, that gave me a confidence to say, hey, I'm not going to do the huge job application.

I think this might be a good fit for me. Interesting. Did you have a professor at law school that you're a professor now? And I would argue one of the most well respected in terms of your ability to share information and bring a classroom to life. And that is, I would say, an art. And some are very good at delivering information, in fact. But to inspire a group of people, some people just don't have maybe that extra gear. And that's not a slight against them. It's just some people are able to go into a room and kind of ignite a fire under people of like, wow, like, this is why I came to law school. And I would say that you were one of very few that were able to take the whole room and captivate us. And I heard Andrew Huberman, who's a neuroscientist, explain that we're actually regularly in a hypnotic state, which is when you're watching a movie and you're, like, one of the heroes dies or the protagonist is injured, and you feel that like drop in your stomach of like, oh no, you're actually in a state because you didn't expect your body to do that.

You didn't react knowingly. And I would say that you're very good at captivating the room and letting us feel your passion in that room. Did you have someone who did that for you during your time at law school? Well, thanks very much for that. I'm definitely the loudest. So I think that's something I'll always, you know, but just on your first point, and I'm sure this was always true with, you know, newspapers or whatever,

but is even more true. with the computers in the classroom, I feel like you're competing. You're competing with, and competing a number of ways. And I'll tell you, I occasionally go to a lecture, which is great because I love to learn. And I love to also put myself in the place of the student.

You know, it's often easier to be up there just pontificating along along. Sometimes it's really hard to be sitting there for a long time. And so it's a really good reminder to me. You're competing with the phones and the computers. You're also competing with people mentally flying off to places. Did I pick up my dry cleaning? Have I renewed my insurance? There's a lot of competing things. So I really view the, it's really important in the classroom to be trying to always emphasize. And it could seem like a small point bringing out the significance of it.

And I think when you can tell people how significant this is, not just to this case, not just to our criminal justice system, but to our society, you may have a shot at breaking through all of those diversions. Yeah, I was really lucky. My criminal law professor was Don Eggleston. He was, and only now do I realize what a trailblazer he was. he was a teaching-based professor in an era that was not had almost all. Now there are a lot of teaching-based position, including the one I'm in. He was a very unique person they brought in. He was academically very strong in criminal law, but he brought in a lot of practical perspective. and that to me was really important. He was making it very understandable.

And I was getting a sense of, I know this guy practices, hey, this sounds really interesting and he seems like a really interesting individual. So he really had a big influence. You know, someone who I work with closely today, who I only knew of at the time,

but was also very intuble, was Isabel Grant. She was very clearly a top criminal law scholar, as she continues to be today, you know, she was writing really influential stuff at the time. But what was very interesting about it was it was also very tangible. I noted that the article she was writing had some very interesting academic aspects, but they were really saying these are some very practical things we need to do different with provocation and with sentencing. And it really, both of those professors honed into me, this is academically interesting, but the work is very tangible and important to real policy issues.

And that gave me an interest in that sort of balance. And I have to say that's one of the great things about Peck and Company. I was really lucky I landed there because I think a lot of traditional criminal law firms I would have struggled with very early on. it was apparent to me. Trial work was not for me. Hey, witness, you saw it this way. No, I didn't. Oh, okay.

You know, you really need to have one of these overbearing personalities that can sort of really always be testing things. People are saying I knew that wasn't my forte. But at Peck & Company, like my experience at the law school, yes, there was a lot of practical stuff, but there was the big picture always being emphasized. people were encouraged to write papers, people were encouraged to participate in continuing legal education. I was amazed that Rick Peck, who was then and still as a senior partner there, spends, I would say sometimes about half his time doing things other than working on individual files, putting conferences together, speaking at events, writing, doing a lot of pro bono work, writing papers that talk about, you know, an academic topic, but it's tangible things. So this gave me confidence. This was an

area of law that could kind of combine academic approaches and bringing that into real world situations. So what made you interested in sharing your passion for, like, what stood out to you about criminal law? What are some of the things that people might not know about, the complexities of our criminal justice system that you find interesting that have stood up. out to you over the years because we have this idea of like actus reus and mens rea and it's such a when we talk about indigenous issues we talk about decolonizing and one of the things I find interesting though is just how complex our legal system is and how sometimes we maybe overlook like I think innocent until proven guilty is one of the most unlikely things that a human being

would ever come up with ever because when you're mad at your friend and you think they said something bad about you, they're not innocent until proven guilty. They're guilty until they explain themselves. And so it's such a counterintuitive, maybe unhuman approach to the world that we have personally, yet we've managed to put these principles into place that I think just they kind of, I would say that that's where I'm the most maybe astonished is the way that we treat people that we want to be guilty, like the Robert Pickens of the world where we would feel much more comfortable if we just threw him in a hole,

locked him away, and then that angers a certain subset of the population that we don't just do that. And you'll see when a case comes out and somebody was found not guilty for something, we all feel that they did, like O.J. Simpson, we have this feeling like we know. And so

the justice system is so complicated to us because we want it to be simple sometimes. And so what has stood out to you over the years of looking at the criminal justice system, of our criminal law system, and maybe what have you admired about it? Yeah, no, those are great points. And, you know, in some ways it looks like we've created this crazy superstructure. And I think we've actually dismantled parts of that. But I had a really

interesting experience when I was an article student, and I was an article student with the Attorney General. It was incredible articles. Great for someone interested in litigation and criminal law. They rotated me through sort of the Main Street courthouse, the Criminal Appeals Division, and then some civil divisions. And then it administered a law division. And I said to something, I won't learn much in this. And it was actually fascinating. But there was a hearing I was brought to.

I don't think I was really participating much. That was one of the great things about the Attorney General's articles. It wasn't just, you know, you had to do a lot of work. But it was also thought, oh, this would be a good learning experience. Come watch an administrative tribunal. I think it was a hearing about whether somebody had improperly accessed income outside of welfare. And we were sitting in this hearing room and the decision makers were talking to the lawyers and the decision makers started saying, well, we're really concerned.

We've heard rumors that she's working part time and so on and so forth. And so we're going to cut her off until these things happen. And it was fascinating for me because suddenly some of the strictness of our rules suddenly made sense. I sort of said to myself, well, wait a minute, you've heard a rumor or someone's told you, well, is that accurate? And should we be relying on that? And is that really a basis to take away someone who's already marginalized, taking away the paltry sum that is just helping them survive.

And I reflected on that experience, because I was also starting to do some trial work and studying rules of evidence, I sort of said there are some rules that we need to simplify, but I now see the importance of some of these evidentiary rules to make sure we're having a reliable search for the truth. And, you know, you are so right in everyday life. I do it in my household all the time. I'm using propensity evidence. Hey, this, someone ate this.

Well, I know who that is. Somebody left this here. Often it's me and I've forgotten. So it's wrongful convictions all over the place. But it's amazing. We are using propensity evidence. We are using presumptions of guilt. We are using speculation, right?

and one interesting journey for me that's given me a certain level of respect for our criminal justice system and our rules of evidence is that a lot of it has been based on hard lessons of wrongful convictions and and not just a sense that somebody thinks it's wrongful no we've actually found the DNA to find that the person absolutely did not do it and one thing we have done in Canada, where we've had a lot of wrongful convictions is we've had, often had inquiries, how did we get there? And through those inquiries, we've actually found that the rule of evidence for experts was too flexible, that using propensity evidence that we all want to use is incredibly dangerous and often gets us to the wrong result. Relying on some confession that a person said,

oh, well, that's the end of the story. They said it on video. They must have done it. Well, no, you know, sometimes a quarter or half the time, it's a false confession. And so what I do teach my students and I say, folks, we need to absolutely be critical. We are doing nothing if we just say, well, that's the rule and that's the rule because it's the rule. So let's be critical. So let's be critical. But let's also, when we start off with some hearsay rule that has 50 steps and maybe there's ways to improve it, I say be open to the idea that there are complexities here, but necessary complexities. Even if we started from ground zero and we decided to build some rules of evidence, I think we would end up sometimes in a similar place where it does

have a main rule with seven exceptions. But the reason we have those is if we tried to have one or two exceptions or just a very general rule, it would be more likely to lead to injustice. And that's why I often tell my students that says something very important. If these are necessary complexities, then we really, and I think this is apparent to most people, but particularly when you say you can't get around the seven-step hearsay test, which is hard enough for professors and students and senior lawyers and judges, it's why turning our justice system over to self-represented persons is one of the greatest injustices we have currently in this country. And there's the whole issue of, you know, trying to find the time and the

stress of dealing with your own case. That's often a really good reason to have a lawyer involved when you're directly going through it you're not making rational decisions you're it's too stressful to deal with your own um interest in in a courtroom you're just not objective about it but it's we have necessary complexities we have certain rules that i just don't think we could make simpler and if we did we're going to be risking wrongful convictions and wrongful acquittals and so they are very complex and that's why i sometimes times tell my students, after we've done the expert evidence lecture or the hearsay lecture, and we've got this list of 10 things with a bunch of exceptions, I say, you know,

the law has built this way because we, there is not easy solutions to these things. I say you've just now had a lecture. Imagine you without ever having been to law school, maybe, you know, I've not had a chance to do any higher education, are suddenly in a position. of having to apply this rule in a courtroom. It's hard enough for senior lawyers who say I need a junior to work on this issue. And so that has given me a respect for parts of our criminal justice system because I think we have tried to simplify as much as possible. We've created certain flexibilities, which are great.

But in the end, they require representation. And just on your other note, you mentioned some of the decolonizing, One thing I've been incredibly encouraged by, and this is happening in all areas of law, is the extent to which Gladu principles are being applied in every area of criminal law. You know, Gladu started as this idea that in sentencing, we're going to have to take a different approach to indigenous issues. And it's, you know, it was a great development, but it was really, Sometimes we love to simplify law, which is, again, you know, gets back to this necessary

complexities. Oh, Gladu is for sentencing, indigenous person, you know, the effects of systemic discrimination on them and so on. No, Gladu was really about this systemic discrimination has impacted indigenous persons in every area of their life and every area of criminal law. And I have to say, we are now starting to see in ethics matters, in administrative law and civil law, Gladou principles. I think criminal law came around much more quickly than other areas saying if Gladu is about systemic discrimination, then we better look at that in terms of bail. We better look at that in terms of charge approval. We better look at that in terms of some of the evidentiary rule. rules were applying. And one thing I will give credit to the BC crown and the federal government,

I think it's always risky to leave it to some case law to say, hey, on bail, you should be looking at Gladdo issues and systemic discrimination in regard to indigenous persons. You know, I just don't trust that the lawyer is necessarily going to find that case. One thing we've done is, and the federal government, I think, has been fairly active on this, Put it right in the criminal code, right? Put it in the bail provision. And so anybody who may be, because we have a lot of people still representing themselves, they will go to that section and see it actually says we have to consider the impacts of systemic discrimination in bail decisions,

including the experiences of indigenous persons, right in the legislation, right in. And, you know, when I lecture to students at the indigenous community legal, clinic on some evidentiary issues, I say, you know, you're going to often have an instinct of being distrustful of institutions and there's great reasons for that. But look at, for instance, the BC charge approval policy, okay, no greater, I think, important area of criminal law than whether or not you're charged. Okay, I tell my students it's one of the most understudied, underanalyzed aspects of criminal law. We always start off with the charge. Well, you start off with the charge, you immediately have an incredible impact on the individual. Financial, immediately, thousands of dollars

going out the door. Reputationly, it's amazing today. The fact of a charge, don't come to our community meeting anymore. You know, we don't want you around other people and so on. People, as you have mentioned, are incredibly judgmental. Sure, there's a presumption of innocence. Often a lot of people will assume you're guilty and liberty restrictions. You may get bail. You have all kinds of restrictions on you. The decision whether or not to charge a person is one of the most important parts of our criminal justice system that does not involve a judge. This is a crown prosecutor making the momentous decision. Do I do a no charge here or do a charge a person and start the wheels of justice that could take years, hundreds of thousands of dollars, take your home, take your equity in a small

cabin someone left you, cash in your R.SPs, maybe be acquitted at the end of the day. Well, you've just gone through three years of liberty restrictions. You're bankrupt and you're socially isolated. So very important what the Crown Charge approval standards are. Again, through some opening of our society, you Google BC Crown Charge approval. They have substantial likelihood of conviction, a very high thing. And is it in the public interest? what is explicit mentioned numerous times in both of those things. Indigenous systemic discrimination that's both led to wrongful conviction and push people into the criminal justice system.

Again, Gladou principles we think is relevant to sentencing. No, incredibly relevant to fair non-discriminatory charge approval decisions, which is the ultimate result, often for a claim. client, right? Is that either telling the Crown the case is weak or even if the case is strong, there's not a public interest in going forward with the charge? Okay. The official policy used by Crown prosecutors that you're allowed to advocate and send them materials and send them a letter and send them submissions on why there should be a no charge mentioning Ladu principles. And you know, you mentioned what I find interesting

about criminal law and the work people doing it. At Peck & Company, they're very part-time, and they put me in a desk in the open area around the younger associates and students, which is actually great for me, very limited attention spans. So I love having this action. But I get to see them practicing everyday law,

because I'm often working on memos or factum writing and they're dealing with their, caseloads and I tell you I am fascinated how much time they spend on charge approval issues sending material to the crown this is the disadvantages this person is faced from day one of their life this is some weakness in the case what is the need to charge them with this mischief charge that is going to potentially burden them with a criminal record can affect them for the rest of their life. They are spending hours and hours negotiating with the crown, providing information that the charge approval standards set out that I think a lot of people don't read and realize how many

public interests, exceptions there are. And it's funny. You think of the criminal lawyer in the courtroom yelling for reasonable doubt? Well, that has sometimes happened. A lot of the most important work is gathering material, analyzing the case, making a strong pitch, but sometimes successful, sometimes not for the Crown to do a no charge or to drop the charge. And that can be based on both weakness of the case or broader societal issues about how this person has been pushed in the criminal justice system. Let's not apply Gle-Doo at a sentencing where we've disrupted someone's lie for three years, maybe let's do a no charge. Can you describe the Gladu decision for people who might not know what that decision was and what it meant?

Sure, and I probably won't do as good a job of it as many other people could do, but it was actually based in a one line in our criminal code. And it was about sentencing. And previous to around 1996, sentencing had been very much based on the common law, and this is just judge-made law that's not written down in a statute, that you would have all these common law factors, about sentencing a person.

And by the way, you talk to judges and they say sentencing, you think the trial was difficult. Sentencing is twice as difficult. You often have people who have done horrific things, but it was a very out-of-character thing, and they're a person who has not at all been predestined to do these types of things and is just in some situation often had very few options and so on. and ended up doing something.

They're a person who there's a lot of rehabilitative potential, but they've done something horrendous. And you're balancing the victim's perspective and the accused perspective. And so there's a lot of things for a trial judge to balance. What the federal government decided to do is let's not leave this to the common law. Let's create written criminal code provisions to give judges direction about sentencing. And there was a lot of changes. They specified a number of the objectives of sentencing. They actually gave judges a lot more non-jail options, something called conditional

sentences where you could be sentenced to jail, but you weren't deemed a risk to the community, so you would serve your jail sentence often under very restrictive conditions, but in the community, allowing the person to maintain social connections and their employment, which would actually really assist in the rehabilitation. But there was one line in the legislation that said in thinking about the options for sentencing, you should essentially think about using jail as a last resort with particular regard to the circumstances of indigenous persons. And there it was just a line in legislation.

718.2. You are far ahead. of me. You were clearly listening. You were an excellent student in my classes, and I'm glad that has that particular provision. Thank you for this specific part of it. And there it was. And essentially, there was two views developed around it. The first view, which may well have had a good chance of winning as sometimes happens, the government took a perspective. Well, it's obviously important. We've put it in there that, you know, use jail as a last resort with particular regard to the circumstances of indigenous persons. There was an argument. That was actually

the way we've always done things. That was the common law. And sometimes what a government will do in statute, it'll like the common law in an area and just put it in statute. So while there was intended to be some different approaches taken to the law with this big bunch of sentencing written laws that were passed, that was just merely made to reflect the common law. And so we should just, we always took into account the circumstances of an indigenous person before the legislation, we're just going to keep doing that. The case worked its way up to the Supreme Court of Canada and really did some work with him, an amazing appellate lawyer, Gil McKinnon, you know, was a very senior lawyer and was still

a senior lawyer at the time that he argued Gladu, he really challenged the Supreme Court of Canada. He said, listen, as soon as you say something like, you know, this is an important provision, but it's one of many things for a judge to consider and it actually reflected the common law, it's going to have no impact. Okay.

This was actually meant to change day-to-day sentencing of indigenous persons. It was meant to have a profound effect and you need to be clear in your decision. It was meant to change things. If you don't, it's going to have no impact because we'll just go back to the way things were before. What was challenging about it when that amendment was passed, very little was said about it. You didn't have an easy speech of the Minister of Justice. There was a few things, but there was nothing saying.

we view it as having supposed to have, you know, a massive change. What the Supreme Court of Canada did, which is quite logical, they said, okay, we didn't have a lot set in Parliament about the reasoning behind it, but we do have the societal context behind it. And that societal context was a growing recognition of the systemic discrimination against indigenous persons, which had manifested in all kinds of ways, but perhaps what in one of the greatest impacts of discrimination was in our criminal justice system, reflected in massive over-incarceration. And the Gladu decision itself is a fascinating one. I find myself, you know,

you talk about it and you actually go and read it again and you see the things that are in there. One thing they mentioned in that decision, the Supreme Court of Canada, they say, you know, Canada is leader in many fields in the world, including, unfortunately, in over-incarceration. And this is even before they got into the indigenous aspect. They said, while we're less than the United States, and we often think that, you know, we're less than the United States, we're much more progressive. Canada has and continues to has one of the highest incarceration rates in the world. and so the court pointed out there was already that problem of general over-incarceration. They then looked at the statistics for indigenous persons, and it was mind-blowing, essentially,

five, six, seven's time the proportion of the population, the proportion of the jail population. And, you know, what's fascinating about this that many scholars have said it keeps getting worse every year. They called it a crisis in Gladu. I don't know what word we can use now beyond crisis, but we've got to find some word, is that the rates have gone up significantly since Gladu, which was supposed to be part of a problem. In any case,

what the Supreme Court of Canada was able to say with massive over-incarceration, that reference, what's the section again? 718.2. I've got my ex-com. here. I'm supposed to be the excerpt in criminal law. They said that provision, though it just looks like a few words, was actually meant to start addressing this massive over-incarceration. And there was a complex formula behind it, you know, first of all, dealing with the ideas of wrongful conviction, which were addressed somewhat in some other cases, but also recognizing that Canada was the principal offender enforcing so many indigenous persons into circumstances that essentially push them into the criminal justice system. And that had to be recognized. And there needed to

be monumental changes taken in the sentencing approaches, recognizing the impact of systemic discrimination. And so that was thought, and we developed these Gladoo reports to help judges with understanding the systemic discrimination, to have sentences that reflected the huge culpability of Canadian society in so many individual circumstances of indigenous persons. But the real, and it's funny how in law we get very satisfied, oh, we know what to do with Gleu, I think, and this is where I really do believe the role for advocates beyond their individual cases, the rule for law professors to think beyond, you know, what the system is doing now, well, if Gladou is recognizing systemic discrimination and trying to address it in a

sentencing phase, why wouldn't we also be doing that with bail? Why wouldn't we also be doing that in charge approval? I mean, charge approval is so much more important than sentencing because we never have a sentence if we don't have a trial because we decided looking at Gladu principles to be able to not have a charge in the first place. And so what we have seen, and there's a lot more work to be done, an expansion of Gladoo principles to really every part of our criminal justice system, because every part of it is impacted by systemic discrimination. And, you know, it's amazing how many reports we've had.

But I still go back, there was a Manitoba injustice inquiry, you know, probably 25, 30 years old now that actually gave us all of this stuff that we're now trying to deal with. And it mentioned systemic discrimination against indigenous persons and it mentioned over incarceration and so on and so forth, but was really fascinating about that inquiry. I just think it gave us the answers at a time when people said, we still need to. do more studies. It looked at how many different areas of discrimination there were. It took similar situations, okay, so someone's alleged to have committed a certain act. Indigenous get charged with multiple and more serious offenses. Non-indigenous person only has now facing one or two summary charges. The indigenous person often getting less time with their lawyer, the indigenous person less likely to get bail than the non-indigenous. And you really see it's

not just what happens at sentencing. It starts right with assumptions that they did it. Assumptions of the court, you're a dangerous person, so we're not going to grant you bail. And suddenly, rather than facing what another person would bid one or two summary charges, facing five or six charges, two of them indictable that are going to lead to multiple years in jail, your lawyer's not spending much time with you. Hey, you must have done something. Let's plead you out to a couple of these things or, you know, you're going to risk jail and so on. And so it was so much more than sentencing and that Manitoba Justice Inquiry told us those things, but it's taken a long time to apply what was thought to be a sentencing principle to every step in our criminal justice

system. And we're still getting there. Um, but I think people now don't view that as doing something new or radical. This is standard black letter law. We've got to deal with Gladou principles at every stage of the criminal justice system. Yes, I have really enjoyed. So I attended the university of the Fraser Valley for criminology. And it was from there, I learned about the overrepresentation. And I wanted to figure out what could be done. because First Nations court is a proposed solution, but there was no evidence to support that it was going to make any change. The native court workers started nearly 50 years ago now. Its idea was to try and reduce the amount of it.

So to your point, there's been many kind of steps to try and reduce it. And so working as a native court worker, when we talk about systemic racism, there was like maybe this imagination in my head that I was going to find the person who was the racist, who was the hateful person. person who wanted the worst for people, and I never found that person. Crown Counsel was happy to work with me for those unrepresented clients where we could say, okay, this person's been through X, Y, and Z, their grandparents went to Indian residential school, their parents went through the 60s scoop, they were abused, so can we get this person enrolled in counseling? Can we get them enrolled in AA? Can we start to connect them with resources and look at alternative measures and not look at jail time or giving them a criminal record?

And they were open-minded. I'd have judges bugging me like, hey, we need you in the courtroom for this decision. And so it felt like there was a lot of desire to see a change within the system. And that gave me, it gave me a lot of hope because we do have these resources now where we can say, hey, this isn't just a nice thing to do. There is a court decision and there's a statute saying this. And so we're following the law. We're in line with all the values.

the concern, I guess, I had was particularly in regards to the resources I was sending clients to, particularly treatment or, like, addiction resources, because often those are run by people struggling with their own addictions. And that is where I saw a lot of drop off of them saying, like, well, like, I did relapse, but the person running the place was the one offering me to use these drugs. And so I was kind of caught in a bad circumstance. and yeah, maybe I just need to make better decisions and pull up my bootstraps, but I'm in this circumstance because I'm trying to get away from my addiction, and this person who I trusted was the exact wrong person to be talking to. But there felt like there was a lot of desire to see change.

And I think through my education, I've kind of landed on the idea that if we want to see that reduction, we need to go upstream from the criminal justice system, that if we're catching a client at that stage. And I would also say that like working with clients, one thing I think we forget to do when we're talking to them is say like, why would you want to go to treatment? Like what is your life going to be beyond drug use

and like reminding them that they have potential, reminding them that they could be a welder or a carpenter or a doctor or a lawyer or a judge? Like reminding them that they have some sort of value beyond, we just want you to sit at home and not do any drugs. And that would just make us all happy. Like, why are you living? And there's often a sense of despair when you're using drugs or struggling with

mental illness of why am I going to keep up on my medications? Why should I take care of myself? And I think we all struggle with that to a certain extent. Like there was a study that came out that said people are more likely to renew the medications for their pets than they are for themselves. And so there's this feeling that maybe we're not worth investing in or that we're a flawed person, so why bother? And so I think reinstilling that you have something to contribute to society. into yourself that will make your life meaningful and that's why you should go to treatment and counseling and try and better yourself. But my hope through kind of learning about the problems is to inspire the next generation because I think that's where you see the most dividends

paid off long term is having a generation of entrepreneurs or artists or creators so that that whole generation doesn't go down the same path as their children and grandchildren. Oh, you know, that is incredible. And I love like the positivity. Like we've got to deal with these situations and there's a lot of negativity and difficulties, but being inspiring, like you saying, I want to have some positive goals and positive perspectives on it. I think that's so incredibly important. And you're so right. You know, I think, you know, particularly that the provincial court is on the front lines of

society. I know people who have been appointed to the bench who, I think, you know, has had some life experience. They say, what I say. see every day is a marginalized accused, a marginalized victim, marginalized witnesses, and a marginalized community. And it really is an introduction to the depths of the problem. And I think you're right.

There is a real willingness and a lot more education about the solution is not going to be within a tight criminal justice model. It's actually one of the worst delivery systems for services, how people end up actually finally getting a medication because their doctor fought with, you know, the criminal lawyer and, you know, finally relented and so on that there was some treatment available. But, but absolutely right. And I guess it's just a priority with society. We, you often do get now a judge agreeing. There's actually parts of the criminal code saying maybe just delay the whole process and get them in treatment. Is it quality treatment? I think it's one, I think we're just so happy. We have. this alternative model, I think you will put the nail on the head, that is where actually the huge resources need to be. We've created the programs to put the person there. And of course, there's a milling waiting list and so when you get the person in. And I think just inevitably,

with provincial and federal budgets, what they are, they're going to have the bed, but it's not necessarily going to be that incredibly high quality holistic care. And of course, that's going to save incredible resources in the long run. Okay, it's, and I think people like, you know, Ben Perrin that have written about the horrors of the fentanyl crisis and put it in the public domain that this is not just some smaller legal issue and the lived experiences of people and the indigenous advocates have been saying, you know, you put resources in, it is going to save you so many human and fiscal resources in the long term.

And that is a huge, huge challenge. And I think not that criminal justice issues are ever usually too high in a political agenda, but I think these days you will get some mileage out of we're realizing that this is, you know, the sanction model is not working. We want to treat it more as a health issue. We want to treat it as more of a social issue. But not to the point of investing probably the hundreds of millions that need to be to

improve the delivery of the program. One other thing that you said that I think is really important. I think many people are trying to be progressive, are trying to be thinking about things different ways. It's the real risk of the subconscious discrimination. There's obviously a lot of people who are overtly discriminatory. The subconscious is probably the most dangerous, right? Because you have somebody, be they a juror, a judge or a witness who thinks, I'm not discriminatory.

The fact there's an indigenous accused, I am not going to be providing any biases. I'm a progressive person. They actually carry with them, which is often a high percentage of people have subconscious biases. But because they don't know about them, they don't act to try and put a limit on them. Okay, if someone knows, well, I kind of think this new generation is lazy, I'll try and, I know I have that tendency. I'm going to try in this trial of a young person to put those aside, and that's problematic enough. At least you're trying to keep an eye on. Somebody with subconscious racism, it is an incredibly difficult thing to detect often takes a lot of work to unpack the fact you were thought you were bringing this progressive perspective.

it actually had a lot of subconscious races a minute. And that's one of the big challenges is that the Supreme Court of Canada in a case called Williams said that the fact of systemic discrimination, again, taking glad due factors beyond gladdo, that when we choose jurors, given Canadian society the way it is, there's a high percentage you're going to have people biased against an indigenous accused. And we are going to, while it's usually discretionary, we're going to, we're going to, going to require there to be questioning of jurors, whether they be impacted by the fact there's an indigenous accused. We want to sort of test out whether they may have some biases.

Was this the Saskatchewan decision, like the one that took place in Saskatchewan? There was the Saskatchewan decision that was part of the legacy. This was a decision, actually, I think it was 1993 or so on, a long time ago, the Williams decision and the Saskatchewan decision involved a lot of issues around peremptory challenges and keeping indigenous persons off juries and so on. This decision was about discrimination where you have an indigenous accused. And there's, in our Canadian system, we've decided somewhat naively, we're going to assume that, well, jurors may be biased when they're told by the judge.

not to be biased, they'll be able to flick that switch. And so it's very rare in Canada to be able to question jurors about whether or not they may be bringing some biases into the case. The Supreme Court of Canada, based on a mountain of evidence of discrimination against indigenous persons and drawing on a Ontario Court of Appeal decision that said in the greater Toronto area, there was so much systemic discrimination against black accused, they needed to have in every case a questioning of jurors about whether they had biases against indigenous persons.

And in the Parks case in Ontario, they said for black accused, they have to have questions about whether they have biases against black persons. And what's very interesting in some of those hearings, you'll actually have a number of people say, yes, I think it would impact me if there was an indigenous accused. In the Williams case itself, there actually had been some questioning of jurors, and about a third of them said, yeah, I think I may be bringing some bias to this decision. And so the judge said, okay, I want to put you aside. What that doesn't cover, though, is the other jurors that come on there who have, they

didn't think, they don't think they're applying different standards with an indigenous accused, but subconsciously they are. But because they don't know they're doing that, they're not protection. against it. So one thing the Supreme Court of Canada said in a recent decision, and it's really a job for all of us in the criminal justice system, lawyers and advocates and people with lived experience and law professors, they said we need more questioning of jurors to try and get to that subconscious, to sort of unpack that subconscious, though we probably can't take them away to a retreat for seven days to work on that. We need some more.

questions. And so there's a challenge that the Supreme Court of Canada has recently given us is what further questions can we ask? Because let's go beyond, are you discriminatory? But we can't probably take jurors away for multiple days and take them through rigorous sort of training and questions. Is there a way we could try and uncover subconscious racism in some more limited time, but much more time than the two questions we're currently asking. Right. So the way that we tried to fix

this in the past was to have like 12 jurors. So that perhaps you have a representation of Canadians and all of them are flawed in their own ways subconsciously and overtly. So is the argument that maybe that's no longer sufficient that we need

a more thoughtful? Because maybe the way that, like our court system is set up is that you have a provincial court in your community and within your area. And I think that this is a brilliant design. And again, something I don't know if we acknowledge enough, which is you start in the provincial court in your community or the community over. And you try and make the best decision you can there. Then it works its way up to like the Supreme Court. And then it works up to the court of appeals. Then it works up. And so it works up kind of a chain of command where hopefully there's checks and balances at every step of the

way that's kind of removing mistakes and reviewing errors and viewpoints and missed evidence and missed information that the goal would be to have the representatives of those jurors within that community represent that community at the early phases so you're going to have all of the flaws and and misaligned views but that there's going to be real challenges in removing and getting like the goal is blind justice yeah but it's always a moving target because the flaws in human beings are are endless you know that's such a great point and it speaks to and you started with provincial court which is very interesting this is the court that is in the communities and the judge is dealing with people every day from that community and no juries in provincial

court i think we've actually made some really good headway with judge alone trial starting to deal with some systemic discrimination issues. First of all, we have a much more diverse bench that really helps when you have a bench that's much more reflective of the general population out there. Second of all, you, if you go to apply for the bench, there is a whole section on what your experience has been with diversity and with indigenous persons. And I can tell you, this is not just a check the box. I think many judicial applications get stopped at that. The person shows no insight, has not done work in this area, has not worked in that community, has not attempted to overcome some of their own issues, and it is now an incredibly important

part of the application. Second of all, there's mandatory training that judges used to be somewhat resistance to. I'm a judge. You can't tell me what to do. And judges very much came around to, we need this training. Sure, we've had some life experience. Do we fully understand poverty? Probably not. Do we fully understand racism? Probably not. Do we truly understand sexual orientation issues? Probably not. And so there is intensive training that is done and both before they even begin sitting and ongoing training. And I think judges now sitting on the front lines of society are also learning from the people before them. And finally, if you have a judge who's applying some biased perspectives, which still happens, they have to write reasons for judgment. And you have a shot at going to the appeal court and saying they're believing all these witnesses and not believing these witnesses.

And there's a clearly demarcations about the race or the sex of the witnesses and so on. you have a more objective standard that you can hold the person too. So we certainly have not eliminated anything close to biases in those areas, but we've made a lot of progress with judge alone. As you say, though, you go up to Supreme Court, not for all trials. You basically take people off the street. They don't give reasons. And in Canada, unlike the United States, you can't even talk about what was said.

in the jury room and and generally jury trials tend to be the most serious criminal cases including murder cases unless the crown agrees to judge alone have to be before a jury and that's where some of the progress we can make on education of judges and choosing judges who actually have demonstrated understanding equity and diversity issues um you can't do that Yeah, with the people you bring from the street. And then maybe with an indigenous accused, you can ask two questions about whether you're going to be explicitly biased based on this. It is why the ultimate solution, and, you know, we are, again, making some progress in this

area, if jurors are going to come from the general population, we better be teaching the general population. We see curriculums, not just at the hour of law school and undergrad and high school, starting to educate the population. You know, I think what the TRC did, I always reflect on the on, not just the recommendations, it's the consciousness of it. I think it is constantly a learning tool for people, which in the end is going to be our group of jurors. It's educating judges, but it's also educating potential jurors. But, you know, we often think of jurors as a more progressive involving the community.

I think because of the more limited tools we have to address systemic discrimination, we find many more accused people say, I don't trust judges necessarily, but I actually feel safer with someone who has to articulate reasons, someone who I know has had to go through a selection process where if you have a very limited view of society, you're probably not going to get even through the first stage of the digital application. I'm scared of going through a group of jurors I know nothing about.

Absolutely. I think judges, for the most part, the ones that I've dealt with, have been really inspirational because I think we do put them on a pedestal, and I think that there is value to that. I know some of my colleagues in law school complain about having to wear suits and ties and thinking that that's too formal. I don't think I agree. And as a native court worker, I always wore a suit. and it wasn't just to respect the judge.

It was to show respect to the client because they don't know me. And so if I go in in casual attire, they don't know that I'm competent, that I'm capable. And the suit doesn't fix that. But it gives a good indication that I am here as a serious individual to hear your story and that you, the suit is almost like a sign that they can trust you. In those early stages where you're like, hello, my name is Aaron, and they have no idea who the heck I am and why. they would trust something very personal to them, which is the criminal matters, with me. And so I see value in the professionalism, but I've seen people who've had terrible traumas to go to the Gladoo decision, heard.

And just hearing a judge validate what they've been through and what they've overcome, there was just one sentencing where the judge, it was like 3 p.m., everybody was gone, and it was just basically the judge, crown, defense counsel, me, and the client. And the judge was able to just basically talk to the person like they were a human being and say, you know what, if you look at all the things you've gone through, I don't know who would be still standing here today. So the fact that you're here today, we're all incredibly lucky. I hope that you're able to put these matters behind you and go and thrive

and reach whatever your full potential looks like. And both the judge and the client became very emotional. as did I think everyone in the room was feeling emotions towards the fact that it meant a great deal to have your story heard, to have someone have read a little bit about the things that you've been through beyond what the outcome of the decision was, we don't always get to hear what people have been through and slow things down and contextualize why this person is before us today or when you're dealing with like a rude customer in a store or when you're, get cut off in traffic you don't get to hear all the things that person went through that day maybe they just got diagnosed with cancer like we just we have no idea and yet there's a certain confidence that we have that oh that person's just being a jerk and just being in our way and so for all of the flaws that i think the criminal justice system has and the negative impacts i think there's an opportunity for for great um speaking and communication and and discuss of the human condition and I think that the one frustration I have as a native court worker is that I can't sit down with people like Crown Counsel or judges or these people who are making these decisions and I understand the arguments against it which is we need these people to remain somewhat anonymous somewhat ability to operate

without bias or if they say something wrong that they can't take that back and now they're representing the government I hear the arguments for that but we don't get to hear the probation officers who are going the extra mile or the judges who are going the extra mile, who are doing extra readings after work to try and understand an issue deeper, or the Crown Council who's trying to figure out a negotiation that will treat the person more fairly.

We don't get to hear that. What we often hear is the things we consider mistakes, which is they didn't charge this person or this person didn't go away for long enough, and then we're left because we talk about bringing the administration to disrepute. I would personally argue that not hearing from these people in certain appropriate circumstances does bring the administration into disrepute

because we hear only the bad. We think of only the worst kind of decisions that make us go, how could they come to such an unreasonable? And we don't get to sit down and go, okay, where were you coming from? And we don't get to benefit from the belief that the people behind the scenes aren't malevolent, that they aren't everything that we fear that they are when we think of the criminal justice system. You know, you should run the criminal justice system because you've really got it down. You know, first of all, just on your point, I really do believe, and I'm not a formal person,

and the professionalism is critical. And, you know, it's the client perspective. It's not the judge. And some people say, oh, there should be more humor in the courtroom and we should be joking. It's not funny to the person who's sitting there. It's not funny to the victim. It's not funny to the accused. there are incredibly life-altering things on the horizon here, including liberty, including, you know, someone having the restrictions of a criminal record. It's not a time for humor and a lot of informality. And it's about respect to, I think, the accused person, to the victim that this is a formal process. We are doing this carefully. This is not cavalier.

But you're exactly right. Professionalism does not have to mean robotic. And I'm amazed. Again, I have the benefit of seeing it, Peck and Company, the newer lawyers, the first thing they do, I don't care if it's going to be a client for 10 years or a month.

They take a very extensive backgrounder on the client. Basically, their life story to first of all get to know the client. it's also going to be incredibly relevant to any trial or sentencing process. You are so right. It really is about the person as a whole. And one thing that criminal law culpability starts becoming so random is you realize it is amazing. A judge will say, I can't believe you haven't been here more with what you have been put through. It's actually a testament to your perseverance, what you've been.

been able to do. And I would say, and it's not a cure-all, but these specialized courts, including the Gladu courts, including the drug courts and so on, it's exactly that approach you talk about. The charge is often held in abeyance. And it's even physically set up, you have the judge, the prosecutor, a parole person, and someone from social services, and defense and crown. at a table. Professional, like we're not just randomly saying things that we've got a process to follow, but exactly as you say, and these are often prosecutors and defense counsel that realize there's systemic issues.

And if you don't have housing and if you don't have employment and if you don't have addiction counseling, we're going to all be back here again at great expense and great cost to the accused in society. and they actually try and put together, and this just takes some resources that'll save resources later on, let's put together a plan. It's got to involve housing,

it's got to involve some job training, it's got to involve some support, it's got to involve engaging with the broader community. And what you have is a six or seven hearing process where the judge is getting updates on how the person is doing. And at the end,

and this is just, contrary to our whole sanction system, a graduation where the person has actually, and it could take eight months, and sometimes it doesn't work, sometimes it does, they're involved in a process of taking these rehabilitative steps and importantly educating the court about what they've overcome, which the judge, as you say, often says, you know, it's amazing that you've gotten to this point and yes there was this incident but my goodness look at this in the scope of things and now we've got you some support and you know i heard of someone say at a conference someone speaking about this process and i always view court as the worst thing on earth it was a battle and it was attempt to label

me a terrible person i went through one of these specialized court experiences and i was actually proud to be there at my graduation to speak about what I overcome. And I felt I had. It wasn't going to be easy. But there was actually some broader supports available that was not going to put me back in that position. I think that's the future, one of the big futures of criminal law. I agree. I have my hesitations, particularly with First Nations Court, because I don't, I, within my role as Native court worker, it was my job to make sure that clients were received those resources. And the goal in my mind was to make sure that they, when they did fall down, they wouldn't result back in court, that they know where those community resources are and they would

go to them rather than returning to me. And my only hesitation with First Nations court is people becoming used to the idea of being in a court system like that and then ending up returning there and having that kind of relationship built with the criminal justice system. So that is one of my only. sort of hesitation. You're absolutely right. It was never, the criminal justice system was never meant to be a services delivery system. And we often, because things have gotten to that point, you're exactly right. We shouldn't be associating a treatment and connecting with community with

criminal charges, right? It's such a bad association. And you're exactly right that it needs to be often. And that's where I think the one great, opportunity to not be rooting this necessarily through a court system is looking in charge approval, right? Where we haven't got the court system involved yet. Is there a program we can send this person that is not a court sanctioned program, but is a community program that is not going to have the stigma. You're under the umbrella of a potential criminal charge. Absolutely. And I would also say that I think there is value. One of the things I've tried to explain, I do some of these talks to court staff, and I've presented to Crown Council, is that there are distinctions with many people living on reserve.

The quality of life and the culture on reserves is drastically different than living in, I would say, Western culture. Like, for many of the reserves that I work with, many of the homes don't have washing machines, dryers, dishwashers, alarm clocks, calendars, calendars that they follow. regularly. And so when I've attended community gatherings, some of some people show up with a stain on their shirt. And they don't feel judged for that. And I think that that is one of the beautiful things about both the homeless community and individuals living on reserve, which is that you're not judged based on just your physical appearance. That in indigenous culture, we often ask, rather than what do you do for a living? It's who are you related to? And the goal is to try and see what your grandmother is and see if there was some sort of connection, whether or not they met someone.

And I think that that is something I think we could benefit from pulling from more so, which is just the idea that you aren't what you do for a living. You're a human being with a family and with passions and with hobbies and interests. And you've got this whole lived experience beyond just your career path or your education levels. And I think that is an excellent quality. but when I've seen clients come in and they have a stain on their shirt, or maybe they've been struggling with homelessness and they don't smell good, there's already the sense looking at court staff, the sheriffs, the judge, I don't fit in here and just get me the heck out of here.

And I contribute a lot of that to why indigenous people want to plead guilty earlier is because it's like, this is not my people. So let me get out of here. So I think one of my pitches is to have more of the art and the culture in those buildings. things because I think when we're talking about dressing up and looking appropriate, I think art is also a way people feel represented in places that isn't controversial or going to delegitimize the building. But when I've said that to certain court staff, there's like, no, but we don't want to show that we're on this side or that side. And it's like,

but like all you have is concrete walls. Like we could do something. Yeah, what side is that? That's the oppressive boring side. We don't want to support. You know, and you are so right. And I think of myself, I think a lot of what I've been understanding about indigenous person, indigenous culture is a lot more off reserve. And I think there is a deep lack of understanding, even among judges' crown. I don't know if you found that in defense, a lack of understanding of unreserved. I definitely feel that because it's hard to, particularly in Chilawak, we have one particular reserve that has most of the violent crime that has when somebody even a Caucasian commits a crime

this is the reserve that they know to go to because it is hospitable to their type of behavior and then that even more detrimentally impacts that community because then the good people who just want to calm normal life are not able to strive towards those things because it seems beyond beyond the reach and I think that that is something I try and share because the experience of homelessness, whether it's in the downtown east side or in any community, is relatively typical in that there's community resources that they're nearby, that they're trying to utilize to get back on their feet. On reserve, there's very few resources. And if there are resources, often the people who are filling those positions don't have the

educational attainments that we would hope for that would allow them to not be biased against someone like one of the people I worked with as a native court worker would get mad at the client, if they returned to the court system after they helped them because there's this sense of I put in 20 hours of work trying to get you set up with treatment trying to get you set up with this trying to help you with counseling and then you mucked it all up by being a flawed human being and what a like and I loved my manager Daryl Shackley from the court workers who's now the executive director because he always said like the goal isn't for this person never to enter the court system again if you've if you set that goal you're going to be disappointed

forget about it. The goal is to just create the spaces more and more over time. So first, it's a month of them not going into the criminal justice system. Then it's two months. Then it's four months. Then it's eight months. Then it's a year. Then they're 60 years old and they haven't been in court in 25 years. But that's the mindset that you need to go into this with, not with the mindset of if I help you, you better never end up here again or I'm going to be angry. Oh, and programs that have a one and done. So you can be in this program. If there's one, screw up then it's completely unrealistic and counterproductive. You need to incorporate, and there's a point at which it's just not going to work, but you need to incorporate relapses

and problems within it. I think that needs to be absolutely part of the plan. One area that you were really interested in, though, and I know you love them, is mandatory minimum sentencing. I know they're your favorite thing. Can you tell us about your work in regards to mandatory minimum sentencing and perhaps your philosophical views? Sure. And, you, You know, again, you go back to sentencing, I think, I've talked to judges and they say that everything's difficult because if it was a clear winner, the case probably would have settled. And so you're always in areas where it's a grayer area. It's a tough call. But I think they've said some of the most difficult thing is really complex.

Family law disputes that involve so many different issues often with both sides, unrepresented, dealing with one of the, some of the, some. of the most complex social and legal issues and sentencing and particularly sentencing where you have a serious crime but a person who has been trying to make strides in their life and has done something out of character how do you balance those things and judges have been traditionally given a really broad discretion to not give a random sentence but to balance a lot of factors? What are their prospects for rehabilitation? What was the actual impact on the victim and what is going to be the ongoing aspect? Do they have job prospects? What has been their family background? What does the Gle-Doo report tell us about systemic discrimination? And it's actually

a very complex thing that the judge has to balance to come up with the appropriate sentence. And if it's completely outside of what would be acceptable, the court of appeal could either lower or add to the sentence as need be. They're traditionally. Traditionally have been, I think, in most societies, certain crimes that attract a certain minimum penalty, a recognition that what you have done is so serious, we're going to create a floor from which you're going to have to be sentenced. And traditionally in Canada, we had sort of two areas, one being for murder where you actually intended to kill the person. It's a mandatory life sentence, but the minimum parole set at 10 years, and the judge has some flexibility to essentially between 10 and 25 years when you can start applying for parole. The other minimum sentences that were historically available in Canada, again, not without controversy, but were fairly narrow in their application where you did an offense with a firearm and a serious offense such as a robbery, or you were doing something improper with a firearm or someone got killed,

you didn't intend to murder and so on, those would sometimes attract a minimum sentence of two or five years because you were using the firearm in the course of another offense that resulted in some very serious situation. What happened when the Harper government came to power on a get tough on crime agenda, which I think, as we've discussed, would be addressing problems outside of the criminal justice system. That would really be getting tough on crime because we'd have a good shot of preventing the crime from happening. It wasn't the only sort of initiative they had within the criminal justice system.

It was creating more minimum sentences in so many different areas of the law. And these were not targeted in terms of a very specific offense. It was now not just using a firearm in the course of an offense. It was having an illegal firearm at all, and you got a minimum depending on the firearm of either two or five years. Oh, you're selling drugs? Well, you get a minimum of two years. Oh, you're selling a certain type of drug.

You get a minimum of five years. And I think what often comes to mind for people is the drug kingpin who's making a lot of money on these things, the person who's about to take a gun to use to shoot somebody who gets caught on the way, which is going to get, as the Supreme Court of Canada said, you do stuff like that, you're going to be getting five, ten years. What inevitably happens with minimum sentences is they cover so much territory, there will be factual circumstances within those that end up being, because the judge has no discretion, a completely unnecessarily unjust sentence. Okay, for instance, possession of a firearm, you know, again, we think that a legal firearm,

oh, it's the person off to go shoot somebody or rob a bank. Okay, it's the Supreme Court appointed out in the NER decision that I was co-counsel for the Canadian Bar Association on with Eric Katte. Examples the court said was, you have, you were a, you know, Olympic skeet shooter, okay? You have a license to have a certain firearm in Manitoba where you're on the skeet shooting team. There's a competition in Saskatchewan.

You bring that firearm across the border. You, even, maybe you even read the provision. You thought it applied across Canada. You didn't realize it was limited to Manitoba. you have an illegal firearm minimum two year or five year, depending on how they classify that firearm. There was a case in Ontario, somebody which wasn't a great thing,

picked up a firearm for a moment and took a selfie of themselves and then put it down. Well, you had possession of that firearm. I think that was a handgun, going to be potentially a five-year sentence with no discretion to the judge. the big problem the drug dealing

again we think you're a drug kingpin you're an addict and you know the power of opioids is almost unknown to humanity in terms of the level of addiction people so desperate the only way they could feed that addiction

was very through low level dealing of it to get the money to get their own fix and as someone who clearly needs, as we've discussed, you know, a treatment option, I'm sorry, you were trafficking in not just any drug, but something was laced with fentanyl, you're going to get two or five years automatic. And there was about 50 of these passed during the Harper government that were not super specific to a situation. It could involve something serious, but was something. that you could have all kinds of circumstances that would probably logically lead to any reasonable

person saying a non-jail sentence, the judge forced to give two and five years. And all the huge liberty and social consequences of this. And so what happened was there's a section of the charter, cruel and unusual punishment. People started bringing constitutional challenges. And again, as we discussed, this is not the greatest, most efficient way of dealing with this legislative issue. It takes an incredible amount. Often lawyers doing pro bono work, often working in conjunction with organizations such as the BC Civil Liberties Association, the Canadian Bar Association, pivot and so on, getting some of those institutions resources who are also having their own funding challenges to put together constitutional challenges.

and Noor was one of the first ones that got to the Supreme Court of Canada. This was on possession of firearms. And the position we took, which wasn't successful in that case, we did get it struck down as part of the group, but eventually the court adopted later on. Our view was, first of all, if there should be any mandatory minimums, they should be targeted historically to things like murder or using a firearm in the course of offense.

They're quite narrow offenses. that are inherently serious, and there's even questions about whether there should be mandatory minimums for those. If you want to target, and there's a lot of other ways to do it, but if you want to target certain other crimes in society, such as just possession of illegal handguns and so on, if you want to create minimums, they should be presumptive minimums, in that there should always be a safety valve for a judge to find exceptional circumstances. And this has the benefit if the government thinks there's some, you know, deterrence. The stats aren't great on this. But if they think there's

going to be some deterrence to thinking that there's large sentences associated with selling drugs and having firearms, you have the benefit of that usually being applied, but giving a judge a discretion. And, you know, so we were part of, and, you know, one thing you want to do is, an intervener in court, you just don't want to repeat the same submissions. Our pitch was, you should not only strike this down, you should actually tell Parliament, if you want to pass these things, they're not a good idea generally. I mean, think of it. You can't consider any Gladys submissions when you have to have a minimum sentence. You can't consider any vulnerabilities. You can't really look at personal rehabilitative prospects. You have a certain floor that you have to start in on.

is that you need to tell Parliament if they want to use these things, they have to have a safety valve. And you know, what's really important about that, there is actually a safety valve on mandatory minimums. It's an out-of-court safety valve. It's about going to the prosecutor and saying, listen,

you're going to charge them with this offense with the minimum. I've, you know, been well retained here. I've got a report. I've got this. I've got that. They've been in counseling. can you knock it over to some other offense that doesn't have a minimum? And you may find some crown open to that, some not.

The problem is it's an out-of-court process. And there's nothing wrong with that negotiation. But in the end, you may get a crown who says, no, I'm sorry, I'm not doing that. And you're like, but look at the circumstances of my client. No, I've taken it upstairs. I'm not going to do anything with that. What the safety valve does, if you have the legislation, in the end, you go to court, you get a judge on the record who says, you know what, I as a judge now have to hear

submissions on this. It's not just up to crown are these exceptional circumstances. And, you know, it's part of the long journey of this. Eric Garty, along with Mila Shaw, intervened in a subsequent case. So in Newark, the court knocked down the minimum. But, didn't rule on the safety valve issue. A couple years later, through another CBA intervention, and all the parties working on this, the Supreme Court of Canada finally said generally, because there's about 50 of these on the books, listen, unless they're very targeted, if they're fairly broad minimum sentences, and you don't have a safety valve, we're going to be striking them all down.

And, you know, the liberals came in with an idea of eliminating. They have eliminated some of them. I think there is still that we have a society that's much more open about criminal justice reform. There's still a thought. It's a vote loser to get rid of minimum sentences. They've been very slow in the process. What it's meant is it's been up to counsel often with very limited legal aid funding to be challenging every one of these. They've been slowly being knocked off the books.

the government has replaced some of them, but there's still a number out there, which are constitutionally questionable, because they just apply to so many circumstances, many that are appropriate, but a bunch of circumstances where the judge would give a sentence at one-tenth what the minimum requires, but has no discretion in the legislation. One question I have, and it's more broad, but when we talk about justice, we think of certain things. We think of crime. We think of fentanyl. We think of theft. We think we have certain associations with it. One of my challenges, one of the things that I can't seem to square is that there are certain crimes committed that it doesn't feel as bad, that we haven't associated it with

something that's harmful, even though it seems to have more cascading effects. So you steal something from your neighbor and it's a thousand dollars yes that absolutely impacts that neighbor and justice should be done on that but when you think of what happened in 2008 um the decisions that financial institutions you're making have broad harmful consequences for not just one person but for a whole society particularly it was larger in the u.s but it was taking place here and there's this feeling um i had darrell plekis on who was the house speaker for our bc legislature and he basically said that the BC liberals in British Columbia wanted to create contract for more power to be made and they made up a story that we were running low on power and that we needed

these new resources and that we needed to fund it and that they paid billions, I think he said billions, but it could be millions of dollars to private contractors for them to build new resources and he looked dead in the camera and said it was all corrupt. It wasn't true. And it was heinous to watch and so that never made it into a courtroom what happened in 2008 never made it into a courtroom yeah as somebody who's interested in the criminal law as someone who sees it we seem to catch people who are just getting by and really stomping on them but when it comes to larger more grand problems yeah we seem to not have maybe the best approach um i'm not saying that it's a completely flawed system, but it seems like everyday people I know feel like the

worst crimes that have the largest impacts don't seem to make news coverage or have any big reflections. But then when one person gets bail and they stole a chocolate bar, that makes it into our local newspapers and, oh, what is our justice system now? I'm just interested in, is that hard for you to square at all? You know, you bring up such a good point. And you talk to somebody who works in commercial crime, say that the crown has a specialized agency, and they do. They do go after a lot of big people, but they also

say it's fairly routine, somebody who was on welfare, who had a bit of side work, and in the end, it's such a simple case. Particularly in the past, the legislation said, you can't have any other income, we know, we've got some receipts that they were being paid to work part-time on Sundays, and it's a simple case, and we're going to bring it, and, you know,

it's going to have huge implications for the person. And, you know, first of all, There's a structural problem, and I think we're finally starting to realize that, not allowing people to do some part-time on work on welfare to sort of give them an effective ability to just rise above the minimum poverty and so on is a policy that sort of detracts from people trying to improve themselves than not. But it's a massive problem. And it goes back to that the criminal justice system that puts a premium on, you know, truth beyond a reasonable doubt. create certain challenges. And you're exactly right. We look at the 2,000 meltdown of trillions of dollars.

And you look at like a fraud case, someone telling you, this is a great car, and it turns out you know it's not a very good car and you sell it to them for 500 bucks and was actually worth $100. That's a fraud case. And those are often brought, you did this fraudulent transaction and it had this impact and you knew about it and so on. Okay, were these trillions in fraudulent transactions. where we seem to have a lot of evidence that people knew what was going on and were aware.

And the law of fraud is incredibly broad. But part of the challenge is the fact that we have these huge sentences and when we label someone an offender, you know, the criminal record follows them around. It brings with it certain protections, right? First of all, this incredibly high beyond a reasonable doubt. people that are well-resourced, hire a legal team bringing a ton of pretrial motions. There's special protections you get, which I don't think are irrational, but they make a case a lot tougher to prosecute. Is all the evidence found?

Did you follow the rules? Did you respect privacy? Did you get the search warrant? Are there other explanations that you didn't tell the court about and so on? It makes a lot of these prosecutions very difficult to bring, can be brought. But it's going to take multiple years. And sometimes you get to the court and they say, yeah, we think the person probably knew when they told everyone to buy this, that they had this knowledge and so on. But I've got a reasonable doubt.

So after this 10-year legacy, you get an acquittal. Or you get a conviction. And the judge may have a certain power to levy a fine that works its way back to some of the people, but not in a very direct route because that's not the focus of a criminal. prosecution. I think what a number of state agencies did for maybe good and maybe bad reasons is say, listen, there was a lot of ill-gotten gains here. We can go down certain criminal prosecutions. They brought some, but not many. It's going to take us eight years to litigate this. We're going to have the particular protections you get into criminal law setting. And we're going to maybe end up with certain convictions at the end of the day that will not bring justice

to the victims, or we can use non-criminal routes, civil and regulatory, bring cases that have much lower standards of proof, bring cases where the evidence is much more likely to be admissible, and what they did in many cases, and again, not without controversy, is they settled with multi-billion dollar settlements that certainly did not make people whole, but provided some money back to the government that had to backstop a lot of this and actually was able to not again make whole, make some ability to create a fund where many of the people who were bankrupted and lost their houses got some compensation. And so it's a really difficult call. I find a lot of calls are easier when you're a little bit far from it. I know some decision makers

who said, you know, I can get people 25 cents on the dollar if I settle this and you know it's going to take promising not to bring the criminal case to put you know the CEO and the board in jail I think I may have a case but that's going to take 10 years I don't know whether we'll ever get there and I'm not going to that 25 cents on the dollar is now going to be three cents by that time period so I think it's some really difficult calls but I'll tell you when you see the things like the law of fraud and how broad it is and how many cases, when you look at the cases, many of them are the hundreds, you know, hundreds of dollars, thousands of dollars, you ripped off this

person. Those cases are prosecuted. It is amazing to me, as you've mentioned, some of these cases that would seem to be the most blatant examples of fraud are not prosecuted that way. Sometimes for good reasons, I think also, and maybe this is what's happening in the United States. People keep waiting for people to bring a case against Trump and maybe there's reasons they don't. I think there's a certain fear of prosecutors that when someone is so litigious and is going to create a massive legal team on the other side to check every tiny thing you've done is a certain reluctance to bring the charge because then you expose yourself to did you cross every T and dot every eye? And that's a concern in

case where a person is highly resourced and litigious, I think there is sometimes a reluctance. And it's why, you know, the issue of charge approval is not just, oh, we need to be progressive about it, have as few charges as possible. As you mentioned, a problem in charge approval can be, do you have the courage to bring charges that are going to be vigorously defended? But at the end of the day, it's maybe some of the most serious crimes that are happening out there. They're going to be difficult. And you know what it is also? It's a little bit like we talked about in terms of, you know, making sure people have proper options that when you say, you know, we're going to give you some addiction care. It takes resources. You've got to have

top level investigators and prosecutors. And we're fortunate in BC have excellent, excellent prosecutors. But you may need to say, we're going to need five prosecutors on this. And that's a difficult decision within limited resources. Are you ready? And then you have this temptation. of a civil settlement that will bring some money over. No one goes to jail. I think concerns about deterrence about that, but that's often the types of things that decision maker, I think, is weighing.

I definitely agree. I think that the challenge for so many people, though, is, and you kind of alluded to this, which is that there's a David and Zelaya feeling for your petty person going up against crown or getting a charge against them, which is it's going to cost them so many resources, that those same people that are used to being Goliath and dealing with the Davids are not comfortable

then being the David against the Goliath of a big corporation. But I think that the question I guess I always feel left with is does this put our administration into disrepute where so many people feel like the government is only here to hammer on me. But when the rich get richer because they're not afraid of the consequences. then it emboldens them to believe that they can do the same thing again and not risk criminal liability that that emboldens them further or it certainly would uh if i'm being honest emboldened me to feel like we can do this again because what's the fine to whatever the profits were that we made and i think that that scares me because then people don't feel reflected in whatever we call

our justice system they don't feel like they're they'll get punished but people who commit far more far-reaching crimes won't be punished in the same way, like the money laundering that was going on in D.C. for a long period of time that wasn't really dealt with. That makes people feel like, well, I'm just average Joe and I'll get pulled over for a speeding ticket, but the people who commit larger crimes that cause my house to be skyrocketed or lose value significantly, those people, they can do whatever they like. You know, you're absolutely right. And one interesting thing. I've had a chance to work on some cases in larger legal teams and not just the great firm at Peck and company, but lawyers across the Canada and experts from different

jurisdictions. And we've sometimes had larger teams working on cases. And you always have in the back of their mind, you know, why is it that people that are better resourced often get better access to justice? And it really came home to me that the rules don't change. the judges don't change. You don't get any benefits in terms of all. We're going to lower the standard of proof. You just have an ability to look at every part of the case properly, to bring every challenge, not in a periphery way,

but in a really detailed way, or do the research and say, that's not going to, you know, to look at the facts. Often the crown's only collected limited stuff. It's a lot more work when the crown hasn't collected it to make a court application to get further resources. And what has amazed me is, in some of these cases, what is apparent, the case is incredibly weaker than was thought, often the Crown knew because we had the resources

to come up with further information. We were able to look at legal tests that the Crown thought was A and actually had a more difficult threshold as the new litigation had set out. there was nothing nefarious about what was done we were simply providing which is so rare full answer and defense had the time don't spend an hour researching it spend three days on it don't have one lawyer look at it have one lawyer and pass it to another lawyer to sort of read it over make a court application to get certain documents that you usually you know wouldn't get in your usual crown disclosure and the case became objective weaker, sometimes leading to dropping the case. And what struck me was, and I tell students, you know, in some countries, resources are very directly used, there's a bribe to the system and you get out of the case. Our system money means so much, okay, just in terms of your ability to actually make full

answer in defense. Now, I'm amazed a legal aid lawyer often being paid a few hundred dollars, spending thousands of dollars of their time, bringing full answer in defense. But there's just a point at which you can't get the best expert. You can't pay the private investigator another 100 hours to go and interview more witnesses. It's amazing how much you can gain by simply doing the job fully properly and expose flaws in a case. And that's what really concerns me about the reputation of our justice system. There's a line you see in many cases where someone says, my lawyer didn't do things properly or, you know, the charge of the jury had some problems.

And the courts say, we're not here to offer you a perfect case. And we're not here to offer you a Cadillac defense. And maybe in some ways we can't think of a perfection standard. But I often go back to what you said when we're talking about professionalism. When you're the accused sitting in the box, okay, and it's your. future on the line and your reputation on the line and someone saying that was good enough, right? That rings pretty hollow.

Oh, sure, we didn't get those extra documents that may have given you a lot better chance of showing you didn't know the details of what was going on, but it was good enough. And I think that's what can cause real loss of reputation for our justice system where you know, it's not just people who can afford to hire a lawyer. It's people who can afford to have not just a lawyer, but with extra resources, a lot better chance of showing that actually there's not a conviction threshold, not through some nefarious means, but by meticulously going through every aspect of the case. And that's a huge challenge in our society. And it's why I think we're very lucky that particularly in BC, most of our crown, prosecutors really do believe in that notion of they are not here just to get a conviction. They may well see a flawed case, but, you know, the person is representing themselves, taking it upon themselves to say, I can't let resources control this. I'm actually going to direct the cop to go and find some of this other evidence and maybe

drop the case at the end of the day. And what really, I think, speaks to the importance of that in B. see the crown prosecutors who get promoted to managerial roles and often end up on the bench are exactly those types of prosecutors who were the fairest who took the initiative when there was a lack of resources on the other side it's one thing to have that on the office wall that's our ethos i think what indicates um a commitment to that is promoting and then you know bar associations recommending people for the bench who lived those values. So you just landed on a really interesting distinction between the Canadian justice system

and the United States justice system, in my opinion, and one that makes it, I believe, more fair, based on my experience working with Crown, which is that they're a representative of the public at large, and they have the public at large as interested hard, not just prosecuting people and winning. or I think that that's kind of the culture within the U.S. is that the goal, if you're going to take something on, is to win and obliterate the other side, bend a little rule here and there

in order to get your prosecution so that you can climb up the ladder that way. But you're saying our ladder is somewhat different. Yes. And you're exactly right. And probably within those state bar associations and so on, there's also an ethos of prosecutors there as a minister of justice, but promotions and big money gigs at private.

private law firms are based on winning cases. And when that is the incentive, that's the result. You're not going to have necessarily full-scale corruption. It's pushing things because winning cases will get me somewhere. And I really have to say some of the most reasonable, fair-minded people you meet are senior crown. And not only that, they're in charge of an entire army of Crown lawyers, so they're the regional crown, they were promoted to that job because they are constantly questioning. They are constantly applying the appropriate criteria and not part of that when at all cost ethos. But I'll tell you something that's incredibly important. And I find the more I learn about criminal justice, the less I have hard views about things because I sort of, you think I

would get more confident in my views. I sort of say, oh, I can sort of see the other side. Part of it is what your charge approval standard is. I really believe that is absolutely critical to our system. Every province is allowed to create their own system. Some have reasonable prospect of conviction, which allows you as a crown to say, there's a chance of conviction, let's bring the case forward. I think that creates incredible injustice. You talk to any crown. they'll say a case will always look better on paper when you have the statements and the stuff and calling it in court. There's always some degradation by the time you get to court. So the case better look incredibly strong before you bring it. And as I tell my students, you unleash hell

on the person, not with the conviction, with the charge. That changes the person's life. And as you've said, now if we're even going to address it in a flexible way, it's all going to be through the lens of the criminal justice system. In BC, we have, we don't have a reasonable prospect. There was actually a thought to changing it to that. Okay, we have substantial likelihood of conviction. And our charge approval, which all crown need to follow, you've got to consider defenses, you've got to consider the admissibility of evidence.

Occasionally, you'll read a case from Ontario and the judge will be, of course I'm acquitting. it's one eyewitness with no confirmatory evidence. I never could have convicted, and we're four years into the system. You rarely see that in BC because of not only do our prosecutors take their role seriously, in the end, they have to have a very strong case to approve charges. And I realize that often frustrates victims of crime saying, you know,

this clearly was a wrong and Crown are saying, and there's ways of senior Crown can relook at the case and so on. but in the end, a high charge approval standard, I think, is critical. And it doesn't get much play. People think about the judge and reasonable doubt. A high charge approval standard, given what we unleash on people in the criminal justice system is critical. So along with that crown ethos, it has to reach a substantial likelihood.

And again, at Peck & Company, as I'm sitting there, people are writing up massive documents, not for the trial, but to send the crown a memo. I know you think your case is strong, and I told you not to approve charges, but you did. That was your choice. Here's my analysis of the law and the facts. This falls butlow substantial likelihood. Let's end the case here, and sometimes that's successful. That's a victory for everybody.

That was going to inevitably be an acquittal, but we would be two years in. Huge resources wasted the person with that reputational and liberty effects over time. So yes, it's about the ethos of your crown office, but critically it is the high charge approval standard. There was a thought years ago to switch it to a reasonable prospect and to have police officers do it and make the charge approval standard. And I really think the motivation was purely financial. We can have less crown prosecutors. Cops have to, they give a charge approval recommendation anyway. Let's just have them do it.

It'll be cheaper. And I have to say a lot of organizations stepped up. The Canadian Bar Association and other organizations that wrote reports to the government saying, it's going to cost you more. You're going to have a lot of terrible cases in the system. You've got 11B issues. You've only got so much time to get cases done. You don't want crappy cases in the system.

It's actually going to cost you more along with the social costs. and Jeff Cowper, who's a senior lawyer at Faskins, was contracted by the government to look at this. And he looked at the evidence from a very objective view and said, you know what, high charge approval? It has costs and benefits, but overall the benefits are much better than the cost. Interesting. You're also a professor at Allard. I'm interested, how did you get started in that? And what has that meant to you? Because as I said, I think you're one of the most inspirational, motivational, professors. You also wrote a paper on the consequences of technology and going low tech. I'm just interested what has that journey been like? Because from my understanding, you've received awards

multiple years in a row for your approach to experiential learning and supporting students. Within my group, we had you as a criminal law professor and you were by far the most talked about and the most admired educator. And I think that when I imagine going to law school, when I imagine, when I imagined the individuals I'd meet, it was people like yourself, where there's a passion, there's a deep understanding, and there's a dedication to sharing your passion with others. And I think sometimes within just the university structure generally, there's some people who are there more to do research, and then their job is to educate students. But for others, it's, no, these are the next generations of people who are going to be doing

our jobs. And so our job is to motivate them and to contribute to the research. And of course, there's a role for both. But at the end of the day, the person who impacts the students more, I would say, is people like yourself. So how did you get started that? And what has that journey been like? Well, and it's been a very unusual journey. I'm very much from an untraditional path. And let me just say, you know, I teaching, I sometimes have confidence, sometimes not. I have to say it's amazing. And I'll sometimes go and sit in on a colleague's lecture or I'll sit on a committee that has to look at what are my colleagues done. I'm actually amazed at the innovative, interesting things they're doing in their classrooms.

And a lot of them have about 40 at least, and it ends up being even more. they, as you say, they have to dedicate to incredibly complex research and are still doing a great job teaching. I have the benefit, first of all, being able to focus a lot more on teaching in my particular position. And I think things like criminal law and evidence, you always have really interesting facts to draw on. So I think that's a great advantage. No, I came by my teaching through a very unusual route. I think I always had an interest in teaching sort of as an idea, but, you know, you go into the profession, and that ends up being, you know, a lot of long days. But I was lucky at Peck & Company.

There was an ethos of, yes, you know, we're doing our individual cases, but we want to be involved in law reform. We want to be involved with greater organizations like continuing legal education, trial Lords Association, let's go to conferences, let's present, let's do pro bono work. And so it was sort of more than just the individual cases. And what happened for me, I started doing a lot of appellate work. And as many counsel doing accused side criminal appeals, losing lots of cases, not only losing the cases, but the judge just wouldn't even, they'd say, Mr. Harris argued this, nothing more need be said about it. I'm saying, wait a minute, there was a great argument here and they're not even, they're not even rejecting it in detail. And I essentially, you know, after I do big research on these topics, sometimes the court would rule on some other issue or they just summary reject.

And I say, but I think I've got some good ideas here. And it struck me, well, wait a minute. What is a course, really? It's about 13 topics you come and talk about. I think I've had about 13 losses on issues that I think I'm right. I'm going to take my case to the people, you know, and it was very informal. I wrote to the dean of the day who was still an incredible teacher. And by the way, people like Yos Blom and, um, um, um, um,

You know, there was just an incredible great set of teachers. And I wrote to him as dean and I said, hey, here's my idea for a course. Here's 13 topics and sort of advanced criminal evidence that I think would be interesting for students. And I have to say, he could have just cut it off right there and said, we really don't need that. Well, Yost being Yost looked into it. He consulted with the professors and says, hey, I think we could. put this forward. And there was definitely adjunct professors, I think, not as many as there is now. And he said, yeah, we'll put this in as a course on advanced evidence. And, you know,

and one of the great things as a professor is you get to create your course outline. All that case is too confusing. I'm not going to use that one. Oh, I like this topic. I'll put it in. Anyway, I created this sort of set of advanced evidence issues. I was petrified. No one would take it. Fortunately, I think about seven or eight students signed up just above the minimum needed to get in. I was so, even though I had done at this point a fair bit of court, I was so nervous coming into the classroom in that role. I remember, I don't know if it was actually in the mirror, but walking around my apartment, like providing the lecture to the air, just, again, I should have had some more confidence. Oh, I've been involved in a murder appeal or whatever. There was

something about facing students in a new environment. Anyway, I think it was a little bit hit or miss, but it sparked the interest in teaching. And what I really saw was this is a great balance between the academic and the practical. First of all, I have a freedom to talk about not just what the law is, but what it could be. I don't have a client saying, no, I can't pay for that. I don't have a court saying, no, we're not going to look at that. So I have some creative freedom here to be able to look at. at some topics in a way that are, you know, necessarily get each day in the courtroom.

But in the end, I want to make it somewhat practical. Okay. In the end, criminal law and evidence, a lot of it is dealt with in the courtroom. These are students. Some of them will go on to law, some not, but many will at least start in law. I need to be imparting this information. And I think because I started doing this not so far if I had been in practice, I think I really saw myself sitting there and that, yes, maybe I'll try and deliver some big ideas,

but it needs to be tangible. And I need to, for myself, simplify things and that will help them come along and be creative with it if they can understand the basics. So I taught that course for a number of semesters, really enjoyed it. It was such a weird feeling, you know, I'd teach it at night. And I'd come home half exhilarated, half exhausted, sort of this sort of, oh, I had a long day in the office and then taught the course at night, but I sort of feel a buzz from the students and just what they were giving back and we were discussing ideas without the confinement of what a client would pay for or what the judge said was relevant.

And that developed an interest in teaching more generally. And again, the firm was very supportive. There was a point, I think the big jump was, they said, okay, would you be interested in teaching a first-year criminal law course, but you can't teach that at night. you're going to have to come out to the school a couple days a week. The firm said that was okay. And then eventually I started very gradually moving a focus to the law school and limiting my practice. And the school was greatly supportive of it.

I didn't have advanced degrees. I was finding my way through it. And it just became something I did more and more. And then, you know, I was lucky that law school started. started viewing experiential education as more in vogue, and there was the idea of actually creating some positions for people that had some experience in practice who would be teaching focused. But the question you bring up about the technology is a fascinating one.

And it was a really interesting timing for me. Obviously, when I was in law school about 25 years ago, I think there was one student using a computer because his pan was broken so he could only type with limited fingers. he couldn't write things out. It was very exceptional. And when I started teaching, it was mostly students doing handnotes. And over the years, and there was a couple years, it massively switched to almost every student using a laptop. And part of me thought, well, this is the way things are now.

You know, it's kind of convenient and, you know, that's just the way things are. I did start noticing some changing. And it was very interesting because I taught for a number of years where it was mostly handwriting and then it was use of computers. I first of all notice much less engagement in the classroom. Boy, oh boy, pre-laptop. I'd throw out a topic. Hey, you know, you can buy 8,000 bottles of booze at the government liquor store,

but you're not allowed to have one joint, you know, this was before it was legalized. What do you guys? Oh, passionate debate. I always said, guys, we're out of time, you know. And I started knowing, seeing less debate generally, less passion, less interest in sort of having policy discussions. I also found, as I was marking exams, and it was quite ironic, because law school was getting harder and harder to get into, so these students were objectively the top of the top of the top, I was finding some of the basics weren't there anymore. You know, self-defense has three elements, the exam. it's got one element. It's got one and a half. And I sort of thought, maybe I didn't teach it right. And then I'd find like two exams that had the three elements. And I was sort of losing confidence. Maybe I'm not being as clear. Maybe I need to change my teaching. And so I started doing some research on this. And I really have to give credit to some American profs who had really done a lot of testing about this. And I'm sure there were parts about my teaching I needed to reform. But I didn't fully.

understand the impact of the laptop in the classroom and it really had there's a number of impacts but the research said there's two central problems one is the temptation which i can fully appreciate of multitasking and you don't even need to pull out the phone right you're sitting there looking like you're taking notes, but you're either exclusively on some social media feed or buying a microwave or whatever. That's actually a true story. I had some high school students come in and I was giving a lecture on Mr. Big, which is sort of a really interesting undercover cops pretending to be a criminal gang and they sat

in the back and they were diligently taking notes. Like, oh, what did you guys think in lecture? They go, well, it was interesting, but I don't think the other students found it because the person in front of me was buying a used microwave. and the other person buying a sweater, like not exceptionally, like most people. I thought, oh, man, this was the Mr. Big lecture. If there's one lecture that might be interesting, I thought that would be it. In any case, what I found out was, and again, Americans had studied this,

including in law classrooms, by putting people at the back who weren't supposed to lie about who they were, but didn't say exactly who they were, who monitored what was on the screens. what they found was at least half and sometimes up to three quarters of the time, students were on non-course stuff during that one or two-hour lecture. And it was worse in upper year than first year, but still most of the class on non-law stuff. And it was found to have spiked in two circumstances. and I had noticed both of these without knowing the research, oh, when you answer a student's question or there's a policy discussion, the few who had resisted going to social media would think this isn't part of course content, time to check my email and so on.

So it would go from 50% on social media to like 80 or 90%. And I can tell you, it woke me up as to why maybe there was less engaged. generally, but why, particularly as I wanted to get a policy discussion, or I'm answering, encouraging student questions, people were incredibly resistant to that because they viewed that as an extra opportunity if they had resisted getting on social media. The other thing the research said is the person who's using the laptop without the non-course, which is a big problem will sometimes start taking verbatim notes, which I couldn't, but many people more school than it can.

And what they found was that was actually a process that led to much worse learning outcomes because you end up with a transcript of what was said at the lecture that you haven't had time to put in your own words. you haven't had to convert that information. You know, you've showed great skill in writing everything down. And you end up with like 18 pages of notes that mean nothing to you. What I realized with the handwriters, which when that was the only option, they couldn't write down every word.

What they were writing down were the main points. So I talk about self-defense and then I'd say these are the, they would write, made sure they got those three steps, and they would probably put a little circle around it. Like, you know, and in the end, you can't expect students to remember every word you said, but the main point of the three steps, you hope they got that. I think for the few students who weren't on social media, they were taking verbatim notes and they were kind of missing, you know, the trees through the forest.

They had a lecture on self-defense that was just thousands of words, and I really wanted to take them up, a couple policy things and the three-part test. that was lost in the verbatim notes. And so what I decided to do, and, you know, I really don't think you can stop technology. I don't, there's some people that talked about banning laptops from the classroom. I actually, one of my original ideas was to put some jammer in the classroom. So you, because I was told, I said, listen, can we just shut down the Wi-Fi and the ability to do it? No, because 911 is through Wi-Fi and this and that.

And so I said, actually, so is how naive you can be. You think you know law. I said, oh, I'll just put a jammer in the classroom so you can only use your computer for computer stuff. Apparently, it's illegal, right? First of all, you may block someone who's having an emergency for being contacted. Second of all, apparently Rogers and people have all these rights to be using the airwaves. There was some Florida prof who did that, and he got like a cease and desist letter. So I said, okay, I can't do that. I can do two things. First of all, I can write this paper, which I did, and I give a presentation to the students each year.

And what I'm able to tell them is, first of all, it lessens learning outcomes, which as a first year law student, you may not be too worried about that in a generic sense. The research has shown it leads to lower grades. And again, I got to credit the Americans who did this. In fact, in one undergrad class, they actually had the students agree to have not personal to them, but to monitor how often they were on social media. And I think many of them forgot. They probably try in the first few lectures knowing there's being monitored. I think just the addiction being what it is, you start doing what usually do, they actually found, and they took into account everything, the other grades of the students, their SATs and so on, they found that high social media use led to lower grades. They also did these experiments in military schools where I think they have the advantage saying, you're handwriting, you're using this laptop that's going to have internet and you're not, you have no choice.

Anyway, they brought back the stat. It wasn't dramatic, like 20%. But, you know, in law school, two or three percent is a massive different in grade. They were able to demonstrate. So I wrote a paper and I tell students, hey, this can impact your learning and your grades. And also advising them, I'm not going to try and take away the laptop, but, you know, we're all addicted, put it on whatever, what's an airplane mode or whatever. and I'm sure there's a million ways of doing it. And try, even though you can take verbatim notes, try and summarize what was said because that's

much more important to learning. But even with all that, and I think this was always true, it's part of why I'm desperate to always make it meaningful for students. What's the broader significance? In the end, I can tell people not to go on social media, but in the end I'm competing with it. And so the more I can bring home, the importance of what looks like a silly rule and why it might result in someone spending the rest of their life in jail versus walking out of a courtroom free, if I can bring that home, I have a better chance

at the competition. But, you know, it's very interesting. I'm not, we're not going to get rid of it, but I really do feel the students are smarter, right? But, but, but, But I actually am finding that when people didn't have the option of writing everything down, there were sometimes were better answers I was seeing in exams, you know, 15, 20 years ago. That is so important. And I think that there's something admirable about the fact that you view it as a competition. I've had professors and educators basically go, I'm not going to compete with it. So if you're going to squander your education, then you're going to squander your education.

And you're going to waste the money that you're paying to be here. And I think that while I can sympathize with that perspective, it's almost a defeatist approach because we're, particularly as students, we're flawed. We don't recognize, I think, the gift of being where we are that for so many, like when I tell them that I've gone to Allard Law School, you see their eyes go, like, I could never do that. And it's like, well, you've never been, so you don't know that you couldn't do that. And I'm very protective of the idea that I have a different tool in my toolbox than other people, but that doesn't make me better than, smarter than, more than.

I actually think for law learning, when you're too creative, when you're, it actually can be an impediment, right? You're exactly right. It's a certain kind of application. I actually, I really do believe students get penalized to think too creatively, particularly early on. Yeah. I think that that's one of the challenges so many people face is when I do have professors like yourself on, so many people will reach out and go, I wasn't going to listen to that one because I thought it was going to be too intimidating or they were going to be a certain way. And I got like,

but I listened and it ended up being great because there's this feeling, particularly with academics, that they're going to expose maybe the flaws or their limited knowledge. And then we kind of shy away from wanting to have those limitations on what we understand exposed. And that's why I love sitting down with people who have dedicated themselves to something because it's humbling. It reminds you that you don't know everything. That there are complexities within our legal system or within our oceans or within our bees.

Like there's complexities everywhere. And we should be humble in that we know very little about the world and enjoy having people share their expertise in a certain area like yourself. Well, you know, and maybe it's because I have a mix of practice in the school. I really view it as my goal to get the students to understand it as much or better than I, do. I really don't think I have any huge insights. It's just through, I've read the case a few times. I've done some cases around it. I've done dealt with some clients or on the crown or defense side who are dealing with this. So maybe I can offer. But in the end, I think I'm hoping to impart information. Well, they'll come out with the same level of knowledge. And, you know, the students also keep me honest. I was teaching again summer evidence, which is four hours in a condensed thing. And, you know, I had just taught the course. And, and, you know, I had just taught the course. the spring so I'm ready to go I got the notes and whatever and boy oh boy you have to constantly be reviewing I had students putting up their hands I'd say well this fact and they go well and they're always very good about it no I think he did eventually come back later on and said you know what

I haven't re-reviewed the case I relied on I just taught this in the spring I'm ready to go it's constantly a process of putting in that time and I actually you know I have to check myself. I sometimes have the old notes and I'll look them over again. I'll read the case. But you know what I, and I say, you know, I wrote the stupid article. I should believe in it. And sometimes the page is falling apart anyway. I go and re-do the notes again. And you know what I realized is it's not so much a process of having the new notes. The process of creating those notes gave me a refresh knowledge that I actually didn't need to refer to them that much. Occasionally I might, and I'm always still amazed.

I've taught a long time. I get nervous and I feel these eyes on me. I'm like, I'm a disaster and I'm desperately looking and I, or there's a missing page from my notes, but I find, and I find this with the best lawyers do, they'll often do a prep where they'll actually have a speech kind of set out, but creating that speech gave them the freedom to articulate it. And that's what I tell students, take your own. notes. It's really tempting now. You get the slides, you got the old can't. Nothing wrong with those

things. Those are great. But the learning process, the studying process, the most important part of it is taking your own notes. That is starting to imprint it in your head. You're going to review those things, but it's amazing. People think, well, I can, I read the slide, agreed with it. So I just circled it and put a thumb up. Creating your own note actually creates a longer term. memory five months from the first lecture you're writing the exam when you took your own notes even with limited review you retain a lot of information i i couldn't agree more it's why i choose not to i could do the questions right when i reach out to a potential guest yeah but i know that the time in between whatever we schedule could be vast enough where i don't have all of those

kind of minute details in the front of my mind and so i want to make sure that when i do a conversation that there's some sort of logical path that it's going to follow and that those questions are fresh in my mind and that there's a genuine curiosity about asking the questions because a month goes by two months and we've scheduled something so far in advance, then that why I wanted to ask that question can get lost over time of like being, like I think listeners can hear whether or not you're genuinely curious or if you're checking a box. You know what? And this is tied together so many things.

Like we talked about professionalism but then leaving a flexibility. And that's exactly, so you would actually send me, these are some areas that we anticipate. And I thought, oh, I guess we'll go through them. No, you were doing your preparation like a proff should or a speaker should. This is kind of the plan. But let's not miss the event, right? And we'll take some tangents. We'll sort of find an area of interest.

And it's amazing how you've woven in some of the parts we thought we might go to in other areas. And that to me, and, you know, again, I have created. nothing. I'm the greatest borough on earth. When I write a memo, who can say it better than judge so-and-so? I love law because you cut and paste their analysis and everyone thinks you're brilliant. Well, I just set up the quote and maybe I added some underlined to show them the important parts, but there was a woman, I quote in my paper, who says, a lecture is actually a social. It's not one way. It's a social, you know, especially during COVID, I'd kind of look forward to the lecture, even if it was on screen, I'm going to have a group around me and we're going to talk.

it's a dynamic thing if you have too much of a plan have a plan but but that's where I find sometimes slide and slides can be great I just was actually watching a lecture that had slides and said I should maybe start using some because it helped organize my own thoughts but if there's too much of a plan you can't have deviation you got the professional part but you don't have the flexible part and I think in the end and I view this the same thing in the courtroom if it's wrote if it's, I've got seven points and here they are. Without engagement, you're not imprinting on the decision maker. I couldn't agree more. Nikos, this has been an absolute pleasure. I think the passion that you bring to a conversation is so unique. I know that it inspired

classmates of mine and it motivated them to pursue criminal law. And I think that you have that impact on so many people that you impact as a professor. But I also think that lawyers like yourself play a stewardship role for the rules and the regulations that we follow. You being willing to be an intervener is, in a way, acting as a steward for the future generations that are going to be impacted by decisions made by the Supreme Court of Canada. And I think that that is something we do a good job within the legal community of maybe acknowledging that, but outside of the legal community, I think that that's lost on people, that that plays an integral role of a perspective that needed to be heard.

And I think that that is something to be admired and keep in mind that we have these stewards in our community that are trying to protect our rights, that are trying to protect and make sure that we are accountable for our actions and looking at issues in a deeper, more philosophical way. So I appreciate you being willing to make the trip out and sharing such insights into our criminal justice system and the law more generally. Well, thank you. First of all, thank you for doing this. I'm always amazed at our graduates. We sort of have these preset ideas. And the things you've been doing, including this podcast, have been amazing. It was just featured on the Allard Law website as the creative thing our graduates are doing.

And thank you, the information you've imparted to me during this has been incredible. And, you know, as much as we try and get confident when I got the email, oh, would you come out to the podcast? I was like running around the house, right? Because that's the one thing they view as, you know, important of these podcasts. podcast. Someone wants me on a podcast. So it was an honor to come out. It was actually a beautiful drive. This is probably going to be one of my summer vacations. I actually got out of the city for a couple of hours. So it's been an absolute pleasure. Thank you for doing this. And you've got another regular listener here. Okay. Well, that's great to hear. And we just did two and a half hours.

Two and a half. I feel like it's been about 20 minutes. You know,