The Lawyers Weekly - July 16, 2010

Devost
Continued From Page 2
ogy. I say this having regard to
the unchallenged evidence with
respect to her inexperience in
criminal law matters. It was
unreasonable to reject the
explanation based on a critical
parsing of parts of that explana-
tion, without affording the appel-
lant an opportunity to address
the specific concerns that the
judge had.”
Devost’s appellate counsel
Marie Henein of Toronto’s
Henein & Associates told The
Lawyers Weekly she doesn’t see
the case as a cautionary tale
about dabbling in unfamiliar
areas of prac-
tice.

excellent generalists, but certainly I have committed my entire career and ongoing effort to be on top of everything [in my practice area],” said Henein, a criminal law specialist.

Henein said the case under-
scores that lawyers faced with
unfamiliar situations should stop
and take advice, notwithstanding
professional pressures to act on
their own. “I would caution young
lawyers who are inexperienced in
the field in which they are
appearing to be extremely care-
ful, and to ensure that they have
proper guidance,” she advised.

Quicklaw®

Research Solutions

To know is essential.

To Know More is powerful.

LexisNexis® Quicklaw®

SME Business Essentials

Get the Halsbury’s ® Laws of Canada, Butterworths® Texts and Treatises, Forms & Precedents, The Canada Digest

and other exclusive online content.

FOR A FREE TRIAL call 1-800-255-5174 or visit www.lexisnexis.ca/freetrial

colleague to step in to plead his client guilty and do a joint sentencing submission with the Crown before Justice Fraser. Devost asked the judge to give her client credit for the pre-sentence custody he served in Ontario. Because credit for pre-sentence custody is not available if an offender is already serving a sentence for another crime — that would be “double-dipping” — Justice Fraser naturally assumed when she asked for the pre-sentence custody credit that Devost’s client was not in custody on any other matter.

But Devost had been informed by the client before the hearing that he had actually started serving a two-year sentence imposed a week earlier in Quebec for an unrelated matter. He asked her if it was true that his sentence would be concurrent to any other sentence being served unless the judge specified the sentence to be “consecutive.” Before she went into court, Devost spoke with a lawyer who affirmed that if the judge did not say “consecutive” the sentence would be served concurrently.

However, because Justice Fraser didn’t know about the Quebec sentence, he did not consider, or say anything about, the sentence being consecutive.

He only became alive to the issue when correctional officials later asked for clarification because they would normally treat the Ontario sentence as running concurrently. The judge then amended his warrant of committal to indicate that the entire 12 months’ sentence should run consecutively.

He also demanded that Devost, who was called to the Bar in 2000, explain why she shouldn’t be convicted of contempt. She wrote to the judge explaining that she was unaware of the “double-dipping” sentencing issue when she routinely asked for credit for pre-sentence custody. She said she did so inadvertently because of her inexperience and lack of expertise in criminal law. However Justice Fraser rejected her explanation for what he described as her “deliberate actions” and “indifference to her duties” that interfered with the administration of justice. He cited her for contempt because Devost’s credit for pre-sentence custody submission left him with the false impression that the offender was not in custody on any other matter, with the result that the question of whether the sentence should be consecutive did not arise. ;

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Butterworths and Halsbury’s are registered trademarks of Reed Elsevier (U.K.) Limited and its affiliated companies. Quicklaw is a registered