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In the name of justice

Winnipeg lawyers who go the extra mile

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Finding tales of misery, calamity and sadness in Manitoba's courtrooms, as we all know by now, isn't a challenge.

But if you take a step back from the doom, gloom and general awfulness of the facts of many criminal cases -- and the life stories of many who come into conflict with the law -- there are bright spots to admire and take some measure of comfort in.

Not the least of these is the sometimes-astonishing savvy and determination of the lawyers who do a lot of our justice system's heavy lifting.

Several times in recent months, I've caught myself admiring the bona fide advocacy lawyers bring to their cases.

They work on behalf of people, who, let's face it, are often among the most disadvantaged and voiceless in our society.

And no, I'm not forgetting many of their clients have committed horrible crimes that rightly deserve our condemnation.

But this can't be forgotten: The measure of a society is how it treats the most lowly of its members.

Everyone who is put before the justice system is entitled to the fullest defence and legal protections we can muster.

The following Manitoba advocates deserve our admiration for work they've done of late on behalf of clients and the general public.


JAY FUNKE -- defending the indefensible


EVERY junior law student wanting to do youth justice work should be required to take a class examining Jay Funke's defence of a Winnipeg teen who committed a truly shocking break-in, robbery and rape of a woman in Fort Richmond in July 2011.

Without a doubt, it was an atrocious crime committed by a severely damaged, gang-involved and impoverished offender who himself admits people cross the street to avoid him when they see him coming.

Despite this, Funke has battled passionately over the last 18 months to see this teen extended every consideration possible regarding his fate.

In a time where efforts to see violent youths sentenced as adults -- as was the case here -- are becoming more and more frequent (for good reason), Funke's defence proved to be a wake-up call about the process of getting to that point.

Funke's work in this case served as a reminder we must -- not should -- carefully consider every alternative available for sentencing and rehabilitating kids prior to thinking about punishments reserved for adults.

In painstaking fashion, Funke piled on requests for more information from doctors and probation officials in an effort to show the court it had to explore all options to an adult sentence in a federal prison.

He fought, but lost, for a rarely imposed punishment that would have seen the offender offered intensive and expensive support for a two-year period in custody followed by a gradual release into the community.

In the end, Judge Ray Wyant gave the rapist 10 years in prison. It was the right and just decision in my estimation.

But more importantly, Wyant was afforded the opportunity to reach his verdict without any doubts or guesswork.


WILLIAM MARKS -- pressing for progress


WHAT is Gladue and what are so-called Gladue principles meant to do, exactly?

Far from being a "race-based discount" offered to aboriginal offenders when it's time to hand down a sentence, Gladue is really meant to ensure courts get individualized information about a native offender, with the purpose of trying to find creative alternatives to prison when appropriate.

But the door to jail clanks shut for many aboriginal offenders at the moment they are arrested and the custody clock starts ticking.

Sometimes, the conditions courts have at hand to set bail releases -- even for non-violent offenders -- work against aboriginals due to social issues such as poverty, unemployment and mental-health concerns.

They wind up in jail and the cycle of over-incarceration of aboriginal people keeps on.

One might think the natural extension of Gladue would be to start applying it rigorously at bail hearings to prevent this.

Enter defence lawyer William Marks, who strove recently to make this point in the case of Christopher Ferland, a young and essentially homeless aboriginal man with a learning disability and no criminal record.

Arrested for an assault months after it happened, Ferland was released several times by police and the courts only to find himself rearrested over and over largely due to an inability to navigate the complexities of the court system or keep a stable address -- not because he presented a risk to public safety.

We're essentially criminalizing Ferland for the fact he's disadvantaged by factors beyond his control, Marks argued.

Marks advocated diligently, but lost, his bid to see Ferland's detention overturned in the Court of Queen's Bench on the basis Gladue isn't being applied at the bail stage -- as it likely should be -- and constitutes a legal error.

Because of his lack of record, he'll likely have built up more time in custody waiting to deal with his charges than the sentence he'll receive will be. It's illogical. Not to mention expensive.

It truly makes one wonder, were Manitoba to follow in Ontario's footsteps and establish a Gladue-specific court, if we might start to make headway on our shameful rate of aboriginals sitting on remand (more than 70 per cent).

The kicker: Ferland recently entered guilty pleas to a handful of his pending charges.

After doing so, he was released on bail pending the preparation of a Gladue report.


PAUL GIRDLESTONE -- giving voices

to victims of violence


IT'S easy to see how lawyers who handle domestic-violence cases could become jaded.

Crown attorney Paul Girdlestone clearly isn't one of them.

Domestic-related cases come with built-in pitfalls.

The pernicious cycle of domestic violence often means cases collapse when victims don't show up to testify.

Sometimes, they turn up and strangely don't remember anything that happened.

But those risks and challenges don't mean you don't still try your damnedest to bring offenders to justice.

Especially in Manitoba, where domestic violence really is an under-discussed but overwhelming concern.

In two recent cases, Girdlestone proved himself to be a cut above on the civil-service scale of determination and tenacity.

In one, he won a committal after a preliminary hearing in a simply awful-sounding sexual assault case.

The jury was picked and ready to go, as was Girdlestone, but it collapsed when the complainant's memory faltered.

The accused walked away with a year of jail and probation to follow for breaching a no-contact order.

I remember feeling aggrieved by how this case shook out. I can only imagine how Girdlestone felt.

In the second, the victim had died of unrelated causes and conviction against two men accused of brutally raping her was anything but certain.

All the evidence the Crown had was her videotaped statement, made in hospital days after she said she was attacked.

These hurdles didn't stop Girdlestone from trying to get the statement admitted as credible evidence against the two men.

He didn't win in the end and the charges were dismissed for want of evidence.

But the loss doesn't change a simple fact: Girdlestone still pressed on, even when the odds were clearly stacked against the Crown.

For that, we owe him our thanks. I certainly offer him my own.

Republished from the Winnipeg Free Press print edition October 27, 2013 A1

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