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Rosen: don't discount competent counsel


John Rosen
By AdvocateDaily Staff

An Ontario Court of Appeal judge “has a point” about the potentially coercive nature of plea bargaining, but “the problem is he discounts the role of competent and ethical defence counsel,” John Rosen tells AdvocateDaily.com.

Mr. Justice Marc Rosenberg, of the Ontario Court of Appeal, recently told a legal conference that plea bargaining is the result of “a big lie” and urged a thorough review of the process. (Read background story)

“There’s no doubt that Justice Rosenberg has a point about the potentially coercive nature of plea bargaining,” says Rosen, a Toronto criminal defence lawyer. “However, plea bargaining is an essential element of the system and I think what he may have downplayed is the ethical obligation of counsel to ensure that innocent clients don’t succumb to the lure of an offer ­– whether innocent, or having committed the offence that’s being proposed.”

Rosen says he believes what has prompted the comments is that “there have been a number of cases in which people have pled guilty to offences to which they’re not guilty and later on it’s been demonstrated that in fact they’re not guilty.

“He’s concerned about those cases, that counsel are saying, ‘Look if you go to trial even if you’re innocent you’re going to be convicted … Dr. Smith is going to testify this child died of trauma.’ Then, in fact, Dr. Smith turns out to be a fraud,” says Rosen.

“The problem is that he [Rosenberg] discounts the role of competent and ethical defence counsel,” says Rosen. “For example, in a Dr. Smith baby death kind of case, before you consider whether the pathology evidence has legs, you owe it to your client to get an independent assessment. When the client says, ‘I didn’t do this,’ and the child did not die from trauma, then you have an obligation to investigate the client’s position and to find evidence that supports it, rather than merely capitulate in the face of a strong witness.”

John Rosen is a Toronto criminal lawyer whose practice includes white collar matters. The senior partner at Rosen & Company, he can be reached at (416) 205-9700 or reception@rosenlaw.ca. Or, contact AdvocatePR at (416) 729-4043 or info@advocatepr.cange an interview.

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