In R. v. Brydges, the Canadian Supreme Court ruled that a temporary lawyer (Duty Counsel) shall be available 24 hours a day, 7 days a week, to any person detained by police.
Duty Counsel representation is minimal, and may be contrary to your interests (read commentary from Clarence Darrow in sidebar).
For legal advice as a case proceeds, a client must apply for, and quality for, Legal Aid in a specific province. At a Legal Aid Office, the lawyers are assigned on rotation, thus clients cannot exercise choice in which lawyer represents them.
A Legal Aid Office sometimes ‘farms out’ a case to a lawyer in private practice, for example when a conflict of interest is found, or during a period of strenuous workload.
Can you fire a Court-appointed attorney if you uncover a conflict of interest?
Yes, says Judge Barry Singer of Saskatoon Provincial Court.
When Legal Aid cannot accept a deserving case – say the workload is excessive, or a conflict of interest is apparent – then the Legal Aid Office may ‘farm out’ that case to a lawyer in private practice. Robert Borden was such a lawyer. But what happens when a conflict-of-interest emerges in reference to the private-practice lawyer?
In general, the Right to Counsel is defined as: The legal responsibility for the government to provide every defendant in a criminal action with legal representation that also must be deemed effective.
In Saskatchewan the precedent R. v. Hopfner SKQB circumscribes the right to counsel thus: “In cases not falling within provincial Legal Aid plans … the Charter requires funded counsel to be provided if the accused wishes counsel, but cannot pay for a lawyer, and representation of the accused by counsel is essential to a fair trial.”
Robert Borden worked in private practice at the two-man law firm Borden-Holgate in Saskatoon. For decades, Borden was available as a Court-Appointed Attorney for clients whose cases were ‘farmed-out’ by Legal Aid. The name Robert Borden appeared on the list of attorneys officially sanctioned by the Court. And indeed, many clients chose him, encouraged by the Star Phoenix newspaper reports he sought to trumpet his successes.
But in 2004 the news knocked us sideways. When the Klassen malicious-prosecution trial ended, the lead client Richard Klassen gave interviewers a behind-the-scenes look at the case. Klassen spoke bitterly of the extensive role reversal required to bring his lawsuit to safe harbor. Although Robert Borden was the attorney of record, that lawyer did little work; the client did it all. Other clients, I among them, who had recently retained Robert Borden for separate cases, absorbed this news and felt disquiet.
In 2006 one client fired Robert Borden as her Court-Appointed Attorney. The problems: Borden exploited the client's work ethic (which she accepted); Borden caused delays (for which the Crown blamed the client); and over a period of 2 years Borden entered into four separate agreements adverse to the client's interests. Borden was irredeemable; the client rang down the curtain. I can attest to this being a true case – it is my own. My substantive letter to the Court, and Judge Singer's reply, are below.
By 2011 the Law Society of Saskatchewan began to pay attention. As a first step, their disciplinary board revoked Robert Borden's licence to practice law. Whether through negotiation or command, Borden signed an Undertaking promising to cease practicing law from the date November 9, 2011. The Undertaking, the only public document from this early period, is short and gives no reason. The full text:
To: The Members of the Law Society of Saskatchewan
TAKE NOTICE that Robert Laird Borden of Saskatoon, in the Province of Saskatchewan, has provided an Undertaking not to practice law as of November 9, 2011. Signed: Law Society Executive Director
In July 2015 the Law Society published an Amended Formal Complaint in the Matter of Robert Laird Borden which itemized his misconduct. The document indirectly explains the revoked licence – the Law Society had at least two goals, namely (1) to prevent Borden from further raiding his trust accounts; and (2) to prevent Borden from further damaging the cases of his clients due to chronic inaction. This 2015 Amended Complaint is presumably final; no earlier version exists online.
In February 2016 Robert Borden faced a formal Hearing before the Conduct Investigation Committee of the Law Society. Borden was found guilty of stealing trust funds belonging to clients, diverting the funds to his firm's chequing account and then to his personal use, in breach of the Code of Professional Conduct.
In July 2016 the Inspector/Auditor of the Law Society published an in-depth analysis in the Agreed Statement of Facts and Admissions. This accompanied the Law Society's Decision and Reasons which said: “Robert Borden resigned his membership in the Law Society in the face of discipline, which is deemed equivalent to disbarment.” The process is covered in Rule 400(4) of the Law Society Rules.
The Law Society maintains a Special Fund to repay clients whose money is stolen by an attorney. This Fund paid out a total of $51,262.53 to Borden's clients. That amount, reported in 2016, is notably higher than the sums itemized in the 2015 Amended Formal Complaint, whose total ran to $40,908. Thus during the past one year, ten thousand dollars more was traced, which raises a conjecture: are we yet done?
As to Robert Borden's future: He can duck all financial obligations unless he decides to resume practicing law. If he does apply for re-admission to the bar, Borden must first make full restitution himself of the stolen trust funds. Borden must also provide a current assessment from a psychiatrist explaining the root causes of the personal issues that led to his misconduct.
In a July 2016 press release, Borden blamed his thefts on a gambling addiction. Public feedback has two focal points: people question the leniency of the Law Society decision, and they await from Borden a heartfelt apology – indeed, any apology at all.
|Saskatoon lawyer Robert Borden misappropriated from his trust account the sums at right:||2011 Sept 8||$4,200|
|2011 Sept 9||$3,000|
|For the clients listed at right, Robert Borden:||Client J.I.||$2,200|
|Client B.W.||$1,500 and $200|
Judge Barry Singer
PROVINCIAL COURT HOUSE
220 - 19th Street East
Saskatoon, SK S7K 0A2
Dear Judge Singer:
This letter confirms that on January 18/06 I terminated the services of my attorney Robert Borden. To the Court I state that this was my own decision, made with cause after months of contemplation.
In Jan/04 Judge Lavoie granted me the right to a publicly funded attorney, and provided me with a list of attorneys to choose from. I retained Robert Borden based on his recent experience with Dr. Yelland. Since then, I learned the reality behind the headlines: The Klassen case was not won by the Borden-Holgate firm; it was won by Richard Klassen.
Counsel is essential to my case because of my severe physical health status, and because my field is physics and not law. Post haste, I plan to retain a new attorney. I expect the transfer to be difficult due to the quantity of Disclosure.
R. v. Hopfner (1996) states: “In cases not falling within provincial legal aid plans … the Charter requires funded counsel to be provided if the accused wishes counsel, but cannot pay for a lawyer, and representation of the accused by counsel is essential to a fair trial.”
The remainder of my letter is factual, but here I allow one emotional comment: That after two years of open conflict-of-interest from Robert Borden, my sense of betrayal is so great that I no longer wish to be in the same room with him.
Early on, Robert Borden claimed rightly that he was limited by Legal-Aid tariffs. Low tariffs may explain the following:
The limits of Legal-Aid tariffs, however, do not explain any of the following:
The above is a sample. A multitude of other points exist.
There has been excessive delay in my Preliminary Hearing. Robert Borden has taken on several new clients – custody-cases, and cases slated for Queen's Bench Court – all of which “take precedence” over my own case. This pattern escalates: In accepting so many new clients, without hiring more staff, Mr. Borden cannot fulfill his duty to clients who retained him two years ago.
My Prelim sessions completed so far were held April 28/04, Aug 5/04. Nov 1-4/04, Feb 23/05, and May 10/05. The next scheduled date was Dec 7/05. Robert Borden adjourned this to March 28/06, but even that no longer stands. Today Robert Borden adjourned it to May 4 and May 11/06, without my consent. The accumulated delays create a full one-year gap between my last Prelim session and the next.
A table brings the point out clearly:
|2004||Apr 28||Prelim session completed.|
|2004||Aug 5||Prelim session completed.|
|2004||Nov 1 to 4||Prelim session completed.|
|2005||Feb 23||Prelim session completed.|
|2005||May 10||Prelim session completed.|
|2005||Dec 7||Prelim session adjourned by Robert Borden.|
|2006||Mar 28||Prelim session adjourned by Robert Borden again (this time without my knowledge or consent).|
|2006||May 4 & May 11||Next scheduled Prelim session. Consequence: The accumulated delays created a full one-year gap between my last actual Prelim session and the next.|
Georgena Sil, M.Sc., C.A.P.
|cc:||Judge Lavoie, Provincial Court|
|Linda Bogart, Court Services, Regina|
|Inez Cardinal, Crown Prosecutor|
|Registrar, Law Society of Saskatchewan|
|Robert Borden, Borden-Holgate Law Office|
Tuum Est - It Is Up To You
Pomodoro, United Nations, NYC
The puzzle is truth.
Each piece is a fragment of truth.
But truth is irreducible.
It cannot be broken into parts.
And therefore, if you have even
the smallest scrap of truth,
you have the entire thing.
The trick is being able to examine
those few shards that come your
way, and see in them what they
always were and always will be.
The puzzle is not the pieces;
the real and genuine puzzle is
the one and only way in which
they can be assembled.
State officials, or those chosen by the State, usually come to regard themselves as a part of the machinery of justice and to stand with the Prosecuting Attorney for conviction.
It will most likely be the same with State Defenders. No one who really would defend could be elected or could be appointed, and it would work out in really having two Prosecutors, one nominally representing the defense.
A defendant should be left to get any lawyer or any expert he wishes.
No one can be sure that the State expert will be better than the others. All one can say is that State experts may not be partisans, but, in effect, this would mean that they would not be partisans for the defendant.
The constant association with the Prosecutor, the officers of the jail, the public officials, and those charged with enforcing the law, would almost surely place them on the side of the State.
Such men must be elected or appointed by some tribunal. This brings them to the attention of the public and makes them dependent on the public.
The expert's interest will then be the same as the interest of the Prosecutor and the Judge.
American Civil Liberties lawyer and humanist Clarence Darrow made the observations above in Crime: Its Causes and Treatment.
When the Court granted me the right to a Court-Appointed attorney, I selected Robert Borden from the list — an obvious choice due to his ongoing experience with Dr. Yelland.
Two years on, my case contributions had gone from diligence to indentured servitude. My knowledge of the Disclosure, and my affinity with precedents, far exceeded the lawyer's.
Was a remedy possible? On the spectrum of representation, we have self-rep at the low end, and teams of multiple lawyers at the high end. Why not a hybrid? Why not a law team which includes the client?
I filed an Application at Saskatoon Provincial Court to ask this. The arguments of Judge Barry Singer are below.
Georgena Sil application to the Court: "My attorney would take a lead role, but I ask to speak directly to the court myself when necessary on a topic ₀ and to participate in the examination of witnesses. I would only step in when I have data or precedents to offer beyond what my attorney presents."
Attorney Robert Borden reply: "My client feels that I am not prepared enough or that I’ve got too many other things going on."
Georgena Sil: "Mr. Borden, you know that you haven't had time to be prepared."
Judge Singer: "I was told through your counsel last time that you no longer wanted him as your lawyer. Did I get that right?"
Georgena Sil: "It was one option. You had listed 3 options and I believe I said there was a fourth option. This (my application) is an attempt to continue with him as my attorney and yet solve the problem."
Judge Singer: "It's a novel attempt, but not one I can allow."
Sil Application to Judge Singer: "Canadian Statutes permit clients to (1) represent themselves in Court, or (2) hire legal advice (a solo lawyer or a law-team)."
"Merge those options. In Court, I ask for equal standing in the case as if I were self-represented. But I also know the wisdom of legal advice. What I suggest is that Robert Borden and I be perceived as a legal team."
Reason: Attorney Borden lacks dedication to the preparations. It was I who sorted the voluminous Disclosure, and wrote detailed answers to prepare for the Prelim."
This Application was formally discussed in Saskatoon Provincial Court on Aug 31, 2005 (see Transcript pages above).
The Saskatchewan Court publishes a list of private-practice attorneys who take cases farmed out by Legal Aid. These attorneys are paid at Legal Aid tariffs.
This annually updated list bears a title such as "Lawyers for Court-Appointed Counsel Matters." Robert Borden and his law partner Ed Holgate (of the two-man firm Borden-Holgate) were both fixtures on this list.
The three Memos below provide a glimpse into why Robert Borden was never prepared for his Court dates.
Copyright © 2008-2018 Georgena Sil. All Rights Reserved.