NOVEMBER REVIEW
Calgary Criminal Defence Lawyers Association (CDLA) Practice and Procedure Committee Update Submitted by Michael Dinkel, Chairman – November 27, 2008
Highlights:
· Formation of the Practice and Procedure Committee.
· Meetings with Assistant Chief Judge (ACJ) Wilkins.
· The Court Case Management Project (CCM) and The Provincial.
· Implementation Committee (PIC)
Formation of the Practice and Procedure Committee.
It has been approximately five months since the CDLA was formed. At a meeting on September 9, 2008 the membership voted to form a Practice and Procedure Committee. The members elected to the Committee were Allan Fay, Mitch Stephensen and myself, Mike Dinkel. It was determined that Mike Dinkel, would chair the Committee and Charlie Stewart, President of the CDLA, would be an Ad Hoc Member.
It was hoped that the Committee would meet with Assistant Chief Judge (ACJ) Wilkins prior to the next CDLA meeting on October 14, 2008 to discuss a variety of concerns arising out of the recently issued Practice Notes and general practice in Provincial Court in Calgary. Unfortunately, due to scheduling conflicts and ACJ Wilkins’ absence due to surgery, the Committee was unable to meet with ACJ Wilkins prior to the October 14, 2008 CDLA meeting.
The first contact with ACJ Wilkins was on October 16, 2008. At that time Charlie Stewart and Mike Dinkel met briefly with ACJ Wilkins to outline our areas of concern and set up a further meeting date with the full Practice and Procedure Committee. In addition, Deputy Chief Judge (DCJ) Lefever also attended a portion of the meeting to discuss his address to the membership later that day on the topic of the Court Case Management (CCM) Project.
On October 16, 2008 at 12:30 p.m. ACJ Lefever and ACJ Wilkins attended the Board Room in the Lawyer’s Lounge to discuss the status of the CCM Project and encourage defence counsel to become involved by forming a new Sub-Committee on the Provincial Implementation Committee (PIC). The meeting was extremely well attended by the membership and there were a number of positive comments from ACJ Wilkins and DCJ Lefever about our organization.
One week later on October 23, 2008, the entire Practice and Procedure Committee, including ad hoc member Charlie Stewart, met to formalize how to proceed with the Committee’s mandate. It was determined at that time that Al Fay, Mitch Stephensen and Mike Dinkel would arrange to meet with ACJ Wilkins, while Al Fay would meet with the incoming Chief Crown Lloyd Robertson and Mitch Stephensen would meet with Duty Counsel. The intent of meeting with each stakeholder separately was to review specific concerns that they would be able to address directly. It was also agreed that the Committee would put forth Mike Dinkel as the defence bar representative for PIC Sub-Committee.
With respect to meeting with ACJ Wilkins, the Committee determined that there were four issues that should be addressed at the first meeting. They were as follows:
1. Clarifying the 508 bail procedure, including the accessibility to JP Bail on Tuesdays and Thursdays; and
2. “Speedy” guilty pleas in courtroom 305 where there will be joint submissions for one day; and
3. Access to clients in Remand via phone messages and via CCTV on non-court days; and
4. Internet access for counsel in the Lawyer’s Lounge.
Al Fay was to meet with Lloyd Robertson to discuss the following:
1. Earlier Crown arrival time in all courts, but specifically 306;
2. Making sure all trial time estimates are on file at the Trial Co-Coordinator’s Office to facilitate pre-booking;
3. The possibility of accessing Crown diaries via computer to speed the pre-booking process;
4. Ensuring assigned Crown attend Pre-Trial Conferences; and
5. Starting trial courts at 9:30 a.m. and 2:00 p.m., as scheduled, to avoid delay (as per your most recent Practice Note).
Mitch Stephensen was to meet with Duty Counsel to determine what changes to court room scheduling may benefit them.
Finally, it was also agreed by the Committee that it was appropriate to address our own membership with respect to the efficient running of our courts. The issues to be discussed were identified as follows:
1. Making sure all counsel are aware that adjournments should be dealt with first in Docket, Disposition and Trial Courts; and
2. That, subject to readiness and a bit of common sense, senior counsel should be allowed to go first in Docket and Disposition Courts.
To date, I can report the that Mitch Stephensen has met with Duty Counsel, Al Fay’s meeting with Lloyd Robertson had to be re-scheduled to December 9, 2008 and the membership was addressed regarding proper court decorum at the November 12, 2008. There was also an update given at that time by myself with respect to our meetings with ACJ Wilkins and CCM Project.
On November 19, 2008 there was a further meeting with ACJ Wilkins specifically regarding the procedure in courtroom 508. It was attended by Sheena Cunningham of the Crown, Basem Hage of Court Services, Mitch Stephensen and Mike Dinkel. As a result of that meeting some progress was made on the issue of having bail every day of the week in 508 rather than just Monday, Wednesday and Friday. Shortly thereafter, a memo was produced by Mitch Stephensen about the changes that had been agreed upon for 508 and it was posted in the Lawyer’s Lounge on November 24, 2008. I received an electronic copy of that memo on November 26, 2008 and I will re-produce it in full later in this update.
Meetings with Assistant Chief Judge (ACJ) Wilkins
As previously mentioned, meetings have taken place with ACJ Wilkins on October 16, 2008, October 29, 2008 and November 12, 2008. As a result of the October 29, 2008 meeting ACJ Wilkins agreed to send a memo to all the Calgary Provincial Court Judges reminding them that, pursuant to the Practice Notes, “speedy” guilty pleas in courtroom 305, where there was a joint submission for one day, were appropriate. A copy of that memo has been posted in the Lawyer’s Lounge. The intent is to save the time and trouble of transferring simple matters to 306 for guilty plea when they can be easily disposed of in 305. In addition, Basem Hage agreed to make efforts to see that high-speed internet access was made available in the cubicles in the Lawyer’s Lounge. This was done on almost an immediate basis. The internet is now up and running and Joel Livergant has agreed to obtain a router to allow for wireless connectivity as well. David Chow has also volunteered to donate a computer in the near future. In the meantime, members are invited to bring their own laptops to the Lawyer’s Lounge should they wish to connect to the internet. It is anticipated that eventually password access to the wireless internet connection will be required. It was also agreed at the October 29th meeting that the best approach to resolving the issue of accessing clients at the Remand Center by phone or video would be to have the Committee members attend at the Remand Center with ACJ Wilkins and Basem Hage to view the facilities first hand and voice our concerns directly to those in charge of the facilities. I am disappointed to report that numerous meetings have been scheduled and cancelled because one group or anther has been unavailable. We are currently discussing meeting in January at Remand. However, as I see this as a pressing issue, I have asked Basem Hage at Court Services to try and arrange an initial meeting with the various stakeholders at the courthouse. Hopefully, something can be arranged prior to Christmas. I think it is fair to say that some progress has been made on each of the above-mentioned issues, but there is more work to do on accessing clients at Remand. ACJ Wilkins and Basem Hage were alive to all of these issues and their assistance in addressing them is greatly appreciated. It is hoped that a Town Hall Meeting will be held in the new year to discuss all of the recent changes in Provincial Court.
Clearly, the greatest concern being voiced by defence counsel at this time is the current bail procedure in courtroom 508. The Committee’s intention was to see access to bail on Tuesdays and Thursdays was restored in some fashion. It is my understanding that access to bail in 508 was removed on Tuesdays and Thursdays so as to make more time available for Domestic Violence trials. The hope was that Domestic Violence cases could be heard in 90 days or less. Numerous alternatives have been discussed and for the moment the only viable one appears to be that which is set out below in Mitch Stephensen’s memo. The general intent of the practice being suggested is to allow bail matters to be adjourned to Tuesdays or Thursdays where exceptional or emergency circumstances exist. However, the Crown must still consent to this and it is understood that the Crown’s consent should not be unreasonably withheld. Unfortunately, there is a somewhat complex procedure for getting matters that are before a Justice of the Peace on Mondays or Wednesdays, in front of a Judge on Tuesdays or Thursdays. That procedure is also set out in Mitch Stephensen’s memo. The good news is that there is a procedure in place to do bail hearings in 508 on Tuesdays and Thursdays. The bad news is that it is not a return to the system that existed before the release of the 508 Practice Note. It is my hope that further progress can be made on this issue, but only time will tell. Unfortunately, the progress made to date may not be sufficient for certain members of the defence bar. As a result, a meeting of the Executive has now been scheduled for December 2, 2008 to address this issue. At that time, the Executive will determine how best to proceed. I think it is fair to say that in the course of all discussions with ACJ Wilkins that the position of the CDLA as a whole was made clear and it was understood. The intent of the Committee is to vigorously represent all of the members of the CDLA and not favour one position over another. I firmly believe that has been done. I strongly believe ACJ Wilkins has come to the table in good faith and is prepared to work with defence counsel in creating a more efficient system in the Calgary Provincial Court.
Mitch Stephensen’s memo is re-produced below:
ATTENTION CDLA MEMBERS RE: SHOW CAUSE HEARINGS IN 508
On November 19th, 2008, Mr. Mike DINKEL and Mr. Mitch STEPHENSEN met with the Honourable Judge R.J. WILKINS, Ms. Basem HAGE, Court Administrator, and Ms. Sheena CUNNINGHAM, Crown Prosecutor in charge of 508. No formal change in the current policy was achieved, but it was agreed in principle that, if Defence Counsel can persuade the Crown that “exceptional or emergency circumstances” exist, the Court will agree to hear a Show Cause in 508 on a Tuesday or a Thursday.
The logistics of obtaining such an “override” of the current policy still requires that the matter be on the docket, and that the Crown have their file. Since the Justice of the Peace will be instructed to only adjourn matters to Monday, Wednesday or Friday in 508, Defence Counsel or Duty Counsel will have to appear that day to request the Court and Crown agree to hear the matter on a Tuesday or Thursday as an “override,” so the Crown will have their file there.
Making sure the Crown has a file there can also be accomplished by Defence Counsel contacting the Justice of the Peace by phone, or by the Accused asking the Justice of the Peace himself at the request of Defence Counsel, to adjourn the matter directly to a Tuesday or Thursday, so an “override” request can at least be made. It is expected that the Justice of the Peace will be sympathetic to such a request, particularly in situations where a holiday falls on a Monday, or a Wednesday. For example, when an Accused is arrested on a Friday, and Monday is a holiday, the Accused should not have to wait until Wednesday for a Show Cause Hearing in Provincial Court where “exceptional circumstances” exist.
All Defence Counsel are reminded Accused persons are still entitled to a Show Cause Hearing in front of the Justice of the Peace, and Defence Counsel are permitted to make representations on release by telephone. Accused persons are not necessarily entitled to choose the timing of their Show Cause in Provincial Court, if they adjourn in front of the Justice of the Peace, as the Crown is also entitled to an adjournment of the Show Cause Hearing according to the Criminal Code.
Defence Counsel are also encouraged to advise Accused persons appearing before the Justice of the Peace to simply ask the Presenting Officer if their release is being opposed just prior to appearing in front of the Justice of the Peace, as often the Presenting Officer is only seeking some cash bail and/or conditions, not detention. In those circumstances, the Accused may be well advised to proceed, rather than to adjourn. Later, it will be easier to obtain Crown consent to a bail variation, than to conduct a full-blown Show Cause Hearing.
The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
As many of you know, DCJ Lefever met with the CDLA on October 16, 2008 to discuss the CCM Project. I say many of you because the meeting was extremely well attended with approximately 50 CDLA members present. In the course of his presentation, DCJ Lefever laid out the framework for the CCM Project. In its simplest form, the CCM Project is designed to make the day to day operation of the Provincial Courts in Calgary and Edmonton more efficient by introducing, among other things, the practice of Crown File Ownership and new technology (JIMS or Justice Information Management System). How this changes your practice as a defence lawyer is yet to be determined, but a number of possible benefits for defence have been identified. They include the following:
· Access to the Assigned Crown at an early stage to make arrangements to either agree to a client’s release or set up a bail application
· Dealing with a single Crown from start to finish and eliminating last minute changes to the Crown schedule, thereby making a single Crown accountable
· Reducing time spent in Docket Courts
· Allowing Justices of the Peace to deal with non-contentious or administrative matters
· Being able to access Assigned Crown to resolve Disclosure issues and discuss possible resolution early on in the process
· Using JIMS for remote booking to save time in booking any court related matters including bail, guilty pleas, trial and sentencing
· Using JIMS to access client information such as trial dates and criminal records previously inaccessible to counsel via JOIN
· Obtaining earlier trial dates for clients both in and out of custody, thereby maximizing the use of available court time
· Generally making more efficient and effective use of the current resources available including: Crown, Court Services, Remand and the Sheriff
It is my understanding that this all began in 2006 when the Provincial Crown took notice of what has been described as the Manitoba Front-End Project where “file ownership” was the key. The Crown decided to review this Project with the intention of possibly adopting file ownership in both Edmonton and Calgary. A report on the Manitoba Project was completed on May 28, 2007. In August of 2007, Alberta Justice decided to proceed with their own “File Ownership Project.” From December 2007 to March 2008 Alberta Justice met with various interest groups (including defence counsel) and eventually prepared a report in June 2008. Along the way Alberta Justice realized that there could be no implementation of the project unless Court Services and the Judiciary were in agreement and willing to support any changes. As a result a steering group was created involving the various stakeholders in February 2008. Eventually, the Crown File Ownership and Court Case Management Project Report was completed in June 2008. One of the key findings of this report was to create a Provincial Implementation Committee. The Provincial Implementation Committee was created with DCJ Lefever as the Chair. Initially, there were just three Sub-Committees: Criminal Justice (Greg Lepp), Court Services (Barb Hookenson) and the Judiciary (ACJ Wilkins). Eventually Justice Information Systems or JIMS (Stephen Bull) was added. JIMS is the technology side of the CCM Project. In the fall of 2008, defence counsel in Calgary and Edmonton were approached in the hope that a representative could be appointed to chair a fifth Sub-Committee. At the October 23, 2008 meeting of the CDLA Practice and Procedure Committee it was agreed that Mike Dinkel would be recommended as the defence bar representative. After further consultation with Brian Hurley of the Edmonton CTLA, it was agreed Mike Dinkel would Chair the defence bar Sub-Committee on behalf of both Edmonton and Calgary. Since that time, Brian Hurley has agreed to accept the position of Subject Matter Expert (SME) and will attend bi-weekly meetings in Edmonton. As Chair of the Committee, I attended my first PIC meeting on October 28, 2008. It was clear to me from the subject matter of that meeting that the implementation portion of the project has just begun. The meetings so far have been more organizational than substantive. PIC has agreed to meet every second Wednesday. Since most of the committee members reside in Edmonton, ACJ Wilkins and I typically join the meetings by way of teleconference from Judge’s Chambers.
I firmly believe that we are in on the ground floor of this stage of the project. I also firmly believe that it is in our best interests to maintain our position at that table so that we can contribute to the discussion and monitor the progress that is being made. Some defence counsel feel that we should not participate in these discussions as policy and procedure decisions will be made regardless of our input and when the Case Management Project proceeds in a certain manner they can say that we participated in the discussions and therefore have no right to complain about the final outcome. Although I understand the scepticism of some defence counsel, with the greatest of respect, I disagree. I feel it is better to be at the table providing our input, then not at all. Should the CDLA membership have a strong feeling about this one way or another, then it may require further consideration. I intend to raise the issue at the December 2, 2008 Executive meeting. I know that ACJ Wilkins went to great lengths to see that we had a seat at the PIC table and I believe our inclusion in the process is based on good faith. I would encourage the CDLA membership to allow it to continue.
It should be noted that there is a JIMS Workshop scheduled for Wednesday, December 3, 2008 from 12:30 p.m. to 1:30 p.m. in the courthouse cafeteria. Food will be served, so an RSVP is requested. Please contact to Penny Benedict at penny.benedict@gov.ab.ca to confirm your attendance.
That’s it for now. Without hesitation I can tell you that a great deal of time and effort is being expended by a number of parties to try and make the system better for all involved. Progress has been made. It is my desire to see that this progress continues at a diplomatic level. I am a firm believer that by bringing all parties to the table we can bring about positive change and continue to enjoy what I believe is a positive relationship with both the Crown and the Judiciary. However, I do understand and appreciate the alternative point of view held by many members of the CDLA. I trust all members will give the contents of this Practice and Procedure Committee Update careful consideration. I invite all of you to offer your feedback to the members of this Committee (Allan Fay, Mitch Stephensen and Mike Dinkel, Chair) or the CDLA Executive (President Charlie Stewart, Vice-President Allan Fay, Vice-President David Chow, Secretary Alan Pearse and Treasurer Mike Dinkel).
Michael C. Dinkel, Barrister and Solicitor dinkel@platinum.ca .
Submitted by: Michael Dinkel
CASE BRIEFS by Alan Pearse
R. v. Hunt 2008 CarswellAlta 1738
Facts: Accused charged with impaired operation and over "08." Accused found in passenger seat. Accused forced to move to driver seat to converse with officer. The vehicle was Ford F150 with bench seat. Officers notes were sparse.
Ratio: Accused acquitted. Crown cannot rely on presumption. Care and control not made out.
Analysis: Crown attempted to argue that defense lack of cross-examination on this issue was fatal. Specifically, Crown argued that failure to cross examine as to how and when the vehicle arrived at the residence goes to accused credibility. Crown cites Browne v. Dunne. Court disagreed. See paragraph 44.
R. v. Jefferson 2008 CarswellAlta 1675
Facts: Accused convicted of sexual assault with a weapon. Crown asks Alberta Court of Appeal to set new starting point case. Accused given six and half years after guilty plea. Main charges were sexual assault with a weapon, death threat, unlawful confinement. Over an eight week period, accused essentially kidnapped and forcibly raped two women. There was an attempt on the third woman, but it was not successful. Crown sought 10 years. Accused sought 6 1/2.
Ratio: Court of Appeal refuses to set new starting point case. Crown appeal dismissed.
Analysis: Argued by Allias Anders. Nice quote here showing how starting point cases should not simply be a form of tariff. Sentencing is an individual process in the trial judge's decision should be given deference. The majority holds at paragraph 17:
The appellate imposition of a "starting point", without more, does nothing to inform the range of sentences. In fact, in our opinion, it sacrifices deference on the altar of parity. It pays lip service to the individualized process of sentencing as "the bedrock for the principle of deference in appellate review" (R. v. Point, supra, at para. 11) while severely constraining the exercise of sound discretion by sentencing judges who are entitled to "tremendous deference" (R. v. W.G., [1999] 3 S.C.R. 597 at para. 18 and R. v. D.M.F., 2000 ABCA 244at para. 8.). It offends the principles so carefully enunciated by the Court in R. v. Proulx, supra; R. v. McDonnell and R. v. Stone, supra.
A "starting point" that fails to delineate the range with clarity is no guideline at all.
R. v. Tse 2008 CarswellBC 2247
Facts: Accused charged with kidnapping unlawful confinement extortion and assault. Main issue was admissibility of undercover officer's testimony while accused were detained.
Ratio: Evidence not admissible. Police notes testimony very vague. Audio recording failed. During formal interview accused repeatedly asserting right to silence.
Analysis: A lengthy but well-written decision. Worth a read if you're running an "undercover confession" type file.
R. v. Jevons 2008 CarswellOnt 6598
Facts: Accused kept in custody from August 3 to August 9 due to limited court resources. Accused made an application to have the charges stayed. Accused charged with unlawfully entering a dwelling house, possession of break and enter tools, assault and criminal harassment. Accused argue breach of section 7, section 9, and section 11(e) of the Charter.
Ratio: The court dismissed the charges because of the six-day delay in a bail
Analysis: This case is quite topical given the recent developments in courtroom 508. The court holds that the primary breach is via section 7 and section 11(e). The Main analysis starts at paragraph 32. Anyone attempting to challenge Calgary's current bail rules is strongly encouraged to read this case.
Submitted by: Alan Pearse
Sunday, November 30, 2008
Monday, November 3, 2008
CDLA Newsletter - November 1st, 2008 -- Issue #5
OCTOBER REVIEW
On October 16th, 2008, the CDLA welcomed Deputy Chief Judge Lefever to Calgary to discuss the Province-Wide Case Management Project. This gathering was impressively attended by almost the entire CDLA membership along with a small contingent of other defence lawyers. Though there was much talk about what may or may not be implemented and much uncertainty about things such as “when” and “how” things will occur, all defence counsel should know, to an absolute certainty that the project has commenced to the extent of the creation of four committees: Crown, Judiciary, Court Staff and JIMMS. For anybody scratching their noggin wondering, what is “JIMMS”; this is an acronym for some kind of “justice information management system” which will supposedly work to streamline the court process. Initiatives to streamline the process include, crown file ownership, triage courts and more.
Apparently Red Deer has already implemented a “crown team ownership” system. Arguably, a Calgary version of “crown file ownership” already exists in the form of assigned files and Special Prosecution files. By way of a preliminary comment, simply reflect on how difficult it is to schedule bail hearings with some assigned crowns and then imagine this problem exists for all of your cases. Moreover, imagine having a literal battery of assigned prosecutors impatiently awaiting your attendance in the various docket courts as you attempt to navigate through the superstructure known as the Calgary Court’s Centre? Though crown file ownership may not be a horrible thing, it presents with difficulties. Alas, I digress….
Defence counsel has been invited – better late than never – to participate in the Province-Wide Case Management Project. To borrow a rather apt comment from a defence lawyer (who shall remain nameless), the train has already left the station and defence counsel is not onboard. For whatever it is worth, the CDLA wishes to use this recently acquired ticket to board the train at the next stop. What difference can we really make? I guess that depends upon whether anybody is really listening or whether we are simply being asked to participate so a future claim can be made that implementations were created with the input of defence counsel. Sound familiar?
BLAME THE DEFENCE!
Perhaps more than any other month in recent memory, defence lawyers were criticized for their role in the criminal justice system. In Ontario, defence lawyers were berated for “the spread of costly, runaway trials”. The word “inept” crept into an article which criticized “…nobody is riding hard on the small coterie of defence lawyers - some of whom may be long on years, but short on sound judgment and experience with complex proceedings - who elongate trials with endless motions and no-hope legal strategies”.
http://www.theglobeandmail.com/servlet/story/RTGAM.20081029.wcourts29/BNStory/National/home
This rather unflattering characterization of defence counsel in Ontario was opportunistically followed in Alberta, when Minister of Justice, Ms. Alison Redford blamed Alberta’s criminal justice backlog “…not on overtaxed courts but on defence lawyers who…exploit procedural redundancies in the Criminal Code to delay trials”.
http://www.canada.com/edmontonjournal/columnists/story.html?id=644893cd-a3f9-4d67-95ee-5159decc8b45
Though I am quite certain the Crown Attorney’s Association in Alberta is sensitive to Ms. Redford’s public gaffe that the “courts are well resourced” – apparently meaning there are enough judges, crowns and court staff – I am equally certain that many defence lawyers are sensitive to the kind of quasi-witch hunt perpetrated in the media by Alison Redford and others.
To this end, let me be clear, defence lawyers in Alberta are an under resourced, hard-working bunch; who attempt on a quotidian basis to balance an unpredictable schedule in an unwavering – though apparently unappreciated – attempt to ensure that the rights of citizens are protected. A newsflash to all of you so-called justice pundits: the rights of all citizens are protected through the prosecution and proper defence of alleged criminals. To effectively suggest that defence counsel should “try less hard” for the sake of expediency is to undermine our judicial system.
TARDINESS NOT TOLERATED
On October 24th, 2008, Assistant Chief Judge Wilkins released a “Notice to the Profession” reminding all lawyers to be present and prepared to proceed at the scheduled court commencement time. Though being in court “on-time” and ready to proceed is patently obvious, his Honour cannot be blamed for reminding all lawyers of this requirement.
Having said this, though all lawyers are encouraged to be timely, not tardy, the CDLA recognizes certain inherent practical realities affecting defence counsel’s ability to be “on time” in each courtroom. From my discussion with various lawyers, the list can be summarized as follows:
1. Overlapping scheduled start times for various courtrooms. For example, trial courts, Thursday pre-preliminary inquiry courts, disposition courts and Friday criminal appearance court all commence at the same time. Defence counsel cannot be two places at once.
2. First appearances. Unpredictable first appearances necessarily cause unpredictability for defence counsel in scheduling bail hearings. Defence counsel has no control over when clients are charged or when they make their first court appearance. Accordingly, defence counsel has little control over their availability for bail hearings. Regardless, show cause hearings must be scheduled in a timely manner, often overlapping with trials.
3. Bureaucratization of defence counsel. Despite best efforts to participate in facilitating the administration of justice, through pre-booking and scheduling dates, often defence counsel is asked to re-attend the trial coordinator’s office because no time estimates have been provided or the assigned crown schedule has not been consulted. This causes delays.
4. Loss of two days of docket court in Courtrooms 505and 508. The loss of two docket court dates creates bottlenecks in the defence lawyers schedule on Monday, Wednesday and Friday. This reduction in court time also subtracts two days per week in which defence counsel could do bail hearings on domestic and drug matters. The net effect is added pressure on Monday, Wednesday and Friday.
5. Scheduling show cause hearings. Bail hearings in 306 commence at 12:30 p.m.. In courtroom 505 and 508 they commence at 11:00 a.m.. The commencement of bail hearings in 505 and 508 commence mid-way through the morning trial session. Sometimes bail hearings in 306 go beyond 2:00 p.m, which interferes with the commencement of afternoon trial sessions.
6. Pre-trial conferences (commencing at 1:30 p.m.), often interfere with the timing of bail hearings and cause lateness in attending 2:00 court sittings.
7. Problems in courtroom 306. In order to conduct guilty pleas in courtroom 306, defence counsel must have their matter moved into the disposition court and be waiting “in line” waiting to consult with the disposition crown. This must be done to ensure the matter proceeds. To do so, defence counsel must be in the courtroom by 9:15 a.m. to speak with the prosecutor who usually arrives between 9:20 and 9:25 a.m.. Court does not open until 9:30 a.m., which interferes with scheduled start times for trial.
8. Courtroom 505 inefficiency. Need I say more?
9. Navigating the Calgary Court Centre. It is not unusual for defence counsel to be in a minimum of 5 courtrooms during a morning session. Navigating between the four docket courts and 14 floors where other matters are scheduled creates inherent problems.
10. CCTV Interviews. Given there are only three CCTV interview booths, it is not unusual to have lineups of defence counsel waiting to speak with clients.
11. Changing courtrooms. Defence counsel seldom, if ever, receives notice that a trial has been moved from one courtroom to another. As such, it is not unusual for defence counsel to attend court where trial is expected to commence, only to find it is not there. The lawyer must then make efforts to locate the trial.
12. Security. It is not unusual for defence counsel to be awaiting their client for a variety of reasons, including delay at the main floor security counter.
13. Prisoner transport throughout the facility. Oftentimes it is necessary for defence lawyers to receive last minute instructions from clients. Inherent delays caused in transporting prisoners to the courtroom or interviewing them in the basement cells can cause delay.
Indeed, despite the best efforts of defence counsel, there are undoubtedly unavoidable practical difficulties to being ready to commence court “on time”. The only stakeholder in the process encumbered by these practical difficulties is defence counsel. The CDLA will work to bring awareness of these issues to the various participants in the criminal justice system. The CDLA encourages members to communicate any practical difficulties in this regard to the CDLA Executive so that issues may be addressed in the future.
POST REMEMBRANCE DAY MEETING: WEDNESDAY NOVEMBER 12TH, 2008
The next CDLA general meeting is scheduled on Wednesday, November 12th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. The meeting has been rescheduled due to Remembrance Day.
On that note, the CDLA reminds all members to take time to reflect and remember Canada’s fallen heroes.
Submitted by: David G. Chow
Fagan & Chow
http://www.faganandchow.com/
CASE BRIEFS by Alan Pearse
R v Blacklock 2008 CarswellOnt 2163
Facts: Accused convicted of impaired/08 at trial. Unexplained 32 minute delay between 1st and 2nd breath sample.
Ratio: Acquittal. Where crown does not explain delay, no evidence to support statement that 2nd test taken “as soon as practicable.”
Comment: Not totally clear from either the appeal or trial decisions, but a fair reading is that the defence didn’t even cross-examine on this point (“The facts were not in dispute”).
For a similar analysis, see R v Partnoy 2008 CarswellOnt 2192
Also see R v Ellwood 2008 CarswellOnt 4169, where a 10 minute delay so the officer could go on an “errand” resulted in an acquittal.
R v Maghdoori 2008 CarswellOnt 1666
Facts: Accused charged impaired/08. Officer observed indicia of impairment, but made no notes on evening in question. On arrest, accused advised that police had security tape, and that same was kept for only 60 days. Video tape likely of little relevance, as only in “freeze frame” captures. Accused retained lawyer outside 60 day period, and tape no longer available.
Ratio: Stay of proceedings for lost evidence. Retention policy was arbitrary, unjustified and frustrated disclosure process.
Comment: The court is very, very critical of this policy. The stay here has very little to do with a tangible breach of the CRF 7 right to make full answer and defence. In fact, it is quite clear that the lost video would have been of almost no benefit to the accused. Generally, the court (after reviewing similar decisions) is prepared to “punish” the crown so that they will change their policy.
R v Charette 2008 CarswellOnt 1431
Facts: Accused convicted of impaired/08. Accused argued that police did not have RPG, but did not make CRF 8 application.
Ratio: Appeal allowed. Lack of RPG does not render certificate inadmissible, but does prevent the crown from relying on the presumption back. Matter sent back for trial.
Comment: If you’ve ever found yourself in a trial with a weak RPG, but didn’t send over a Charter notice, then this is the case for you. Generally, the authorities on this issue are divided, with some saying you have to do this as a CRF 8 argument, and others saying it’s part of the crown’s case.
The main difference is that, with a CRF 8 application, you have to send over notice, the crown gets to use the “balance of probabilities” burden (i.e. via warrantless search and seizure of the breath sample), and you have to deal with remedy under CRF 24(2). On the other hand, if RPG is part of the crown’s case, they have to prove it beyond a reasonable doubt, there is no notice, and there is no remedy argument, all of which benefit the defence.
Most of the “non-charter” cases in this area simply rely on Bernshaw and Woods to state that RPG is part of the crown’s case. This case is interesting because it specifically rejects this argument, but then goes on to state that the now admissible certificate cannot be used to support the presumption back (i.e. the crown must call an expert). In Alberta, the experts all reside in Edmonton, and are not commonly called out unless there is an “impaired causing” charge.
R v McKelvey 2008 CarswellAlta 1121
Facts: Accused acquitted of impaired driving. Trial Judge found crown had proved beyond reasonable doubt that accused operate vehicle while impaired. However, evidence of impairment excluded via CRF 9, because initial detention not supported by evidence. Further, even if original detention reasonable, no need to keep accused for over 10 hours.
Ratio: Accused arbitrarily detained. However, because evidence came from civilians, CRF 24(2) not appropriate remedy. Appropriate remedy was judicial stay. Acquittal upheld.
Comment: Interesting because, notwithstanding the fact that the accused was clearly guilty, and same could be proven by civilian evidence, the court is still willing to grant a remedy. Again, we see a willingness to essentially “punish” inappropriate police behaviour.
R v Hey 2008 CarswellAlta 383
Facts: Accused charged impaired/08. Accused advised officer that had one (1) beer five (5) hours ago. Accused smelled of alcohol, had red, glassy eyes. Failed ASD.
Ratio: Accused acquitted. Crown cannot prove RPG for 254(2) demand met. Specifically, smell of alcohol came from vehicle, not accused, and admission of consumption would mean that no alcohol left in system.
Comment: Argued by Ian MacKay, before the Honourable Judge Barley. Judge Barley reviews the relevant authority, and correctly applies same. However, also of note is the fact that this seems to follow the R v Woods analysis of not requiring RPG to be done as a CRF 8 argument (this was discussed above in more detail).
R v White 2008 CarswellAlta 1331
Comment: The accused is sentenced to a CSO for a “major sexual assault,” and the ACA upholds it. This case will be of limited application given the changes brought in December, 2007 and July, 2008. However, there is a good quote on how to properly interpret “starting point cases.” Essentially, the ACA points out that the “starting point case” is only the “mid-range” or “average” of the sentences available. For example, a “three year” starting point might in fact mean that the appropriate range is between one (1) to four (4) years.
Sandercock, in our view, failed to provide the requisite "clarity ... in setting ranges for offences" of sexual assault. A starting point simpliciter is not a range. McLachlin, J., (as she then was), speaking for the dissenting judges in McDonnell, emphasized that "the 'starting point' is not a principle of law, but rather a tool to determine the proper range of sentence for a certain type of offence." (at para. 109)
28 That being so, how does one go about determining a "starting point"? McLachlin, J. explained that the first step is to ascertain "the range of sentence for a typical case". Importantly, she added:
... The starting point may be viewed as the mid-point in the traditional range of sentences for a particular sort of crime.
R v Wolbeck 2008 CarswellAlta 1366
Facts: Accused is convicted at trial of impaired/08. Main issue was fact that police had dialed phone numbers so that the accused could contact counsel. Therefore, police may have interfered with his choice of counsel.
Ratio: Conviction overturned. Acquittal entered.
Comment: This is another case dealing with the “Rath-Akot” issue. Essentially, the argument is that the police should not be participating in the accused’s choice of counsel at all. The police should give the accused the books, lists, and then leave him alone. If the police deviate from this, the certificate is excluded.
The reported cases from the provincial courts, especially in Calgary, were overwhelmingly in favor of this argument. However, last year there were a couple of cases from QB that seemed to put the law in flux.
This case is important because it is very recent (October 7, 2008) and more or less applies the “stricter” approach of the provincial courts.
R v Berquist 2008 CarswellAlta 1186
Facts: Impaired driving/08. Main issue is care and control.
Ratio: After rebutting the presumption, the court holds that the accused is not in care and control.
Comment: Argued in Airdrie by Tim Foster in front of Judge Barley. Apart from the fact that by coming to Airdrie Mr. Foster is clearly horning in on my (Alan Pearse’s) racket, this case is also note worthy for the following passage:
18 In my opinion, the location of the gear shift behind the steering wheel negates the possibility of accidentally putting the motor vehicle in gear. A lurching drunk might accidentally put his foot on the brake, but it is difficult to see how he might accidentally reach around the steering wheel and pull the gear shift toward him.
R v Goss 2008 CarswellAlta 145
Facts: Impaired/08. Officer spent 20 minutes obtaining accused’s personal information and making notes before taking him to check stop bus. Accused argue samples not taken “as soon as practicable.”
Ratio: Acquittal. Samples not taken “as soon as practicable.”
Comments: Argued by Ian MacKay in front of the Honourable Judge Ogle. Main analysis starts at para 57. In response to the officer’s testimony, Judge Ogle notes:
a. The fact that the officer wanted to make his notes “as soon as practicable” is not a reasonable delay. It is the samples that have to be taken “as soon as practicable.”
b. The fact that the officer wanted to make his notes in a “controlled” environment is also not a reasonable delay. The bus would be just as “controlled.”
Submitted by: Alan Pearse
On October 16th, 2008, the CDLA welcomed Deputy Chief Judge Lefever to Calgary to discuss the Province-Wide Case Management Project. This gathering was impressively attended by almost the entire CDLA membership along with a small contingent of other defence lawyers. Though there was much talk about what may or may not be implemented and much uncertainty about things such as “when” and “how” things will occur, all defence counsel should know, to an absolute certainty that the project has commenced to the extent of the creation of four committees: Crown, Judiciary, Court Staff and JIMMS. For anybody scratching their noggin wondering, what is “JIMMS”; this is an acronym for some kind of “justice information management system” which will supposedly work to streamline the court process. Initiatives to streamline the process include, crown file ownership, triage courts and more.
Apparently Red Deer has already implemented a “crown team ownership” system. Arguably, a Calgary version of “crown file ownership” already exists in the form of assigned files and Special Prosecution files. By way of a preliminary comment, simply reflect on how difficult it is to schedule bail hearings with some assigned crowns and then imagine this problem exists for all of your cases. Moreover, imagine having a literal battery of assigned prosecutors impatiently awaiting your attendance in the various docket courts as you attempt to navigate through the superstructure known as the Calgary Court’s Centre? Though crown file ownership may not be a horrible thing, it presents with difficulties. Alas, I digress….
Defence counsel has been invited – better late than never – to participate in the Province-Wide Case Management Project. To borrow a rather apt comment from a defence lawyer (who shall remain nameless), the train has already left the station and defence counsel is not onboard. For whatever it is worth, the CDLA wishes to use this recently acquired ticket to board the train at the next stop. What difference can we really make? I guess that depends upon whether anybody is really listening or whether we are simply being asked to participate so a future claim can be made that implementations were created with the input of defence counsel. Sound familiar?
BLAME THE DEFENCE!
Perhaps more than any other month in recent memory, defence lawyers were criticized for their role in the criminal justice system. In Ontario, defence lawyers were berated for “the spread of costly, runaway trials”. The word “inept” crept into an article which criticized “…nobody is riding hard on the small coterie of defence lawyers - some of whom may be long on years, but short on sound judgment and experience with complex proceedings - who elongate trials with endless motions and no-hope legal strategies”.
http://www.theglobeandmail.com/servlet/story/RTGAM.20081029.wcourts29/BNStory/National/home
This rather unflattering characterization of defence counsel in Ontario was opportunistically followed in Alberta, when Minister of Justice, Ms. Alison Redford blamed Alberta’s criminal justice backlog “…not on overtaxed courts but on defence lawyers who…exploit procedural redundancies in the Criminal Code to delay trials”.
http://www.canada.com/edmontonjournal/columnists/story.html?id=644893cd-a3f9-4d67-95ee-5159decc8b45
Though I am quite certain the Crown Attorney’s Association in Alberta is sensitive to Ms. Redford’s public gaffe that the “courts are well resourced” – apparently meaning there are enough judges, crowns and court staff – I am equally certain that many defence lawyers are sensitive to the kind of quasi-witch hunt perpetrated in the media by Alison Redford and others.
To this end, let me be clear, defence lawyers in Alberta are an under resourced, hard-working bunch; who attempt on a quotidian basis to balance an unpredictable schedule in an unwavering – though apparently unappreciated – attempt to ensure that the rights of citizens are protected. A newsflash to all of you so-called justice pundits: the rights of all citizens are protected through the prosecution and proper defence of alleged criminals. To effectively suggest that defence counsel should “try less hard” for the sake of expediency is to undermine our judicial system.
TARDINESS NOT TOLERATED
On October 24th, 2008, Assistant Chief Judge Wilkins released a “Notice to the Profession” reminding all lawyers to be present and prepared to proceed at the scheduled court commencement time. Though being in court “on-time” and ready to proceed is patently obvious, his Honour cannot be blamed for reminding all lawyers of this requirement.
Having said this, though all lawyers are encouraged to be timely, not tardy, the CDLA recognizes certain inherent practical realities affecting defence counsel’s ability to be “on time” in each courtroom. From my discussion with various lawyers, the list can be summarized as follows:
1. Overlapping scheduled start times for various courtrooms. For example, trial courts, Thursday pre-preliminary inquiry courts, disposition courts and Friday criminal appearance court all commence at the same time. Defence counsel cannot be two places at once.
2. First appearances. Unpredictable first appearances necessarily cause unpredictability for defence counsel in scheduling bail hearings. Defence counsel has no control over when clients are charged or when they make their first court appearance. Accordingly, defence counsel has little control over their availability for bail hearings. Regardless, show cause hearings must be scheduled in a timely manner, often overlapping with trials.
3. Bureaucratization of defence counsel. Despite best efforts to participate in facilitating the administration of justice, through pre-booking and scheduling dates, often defence counsel is asked to re-attend the trial coordinator’s office because no time estimates have been provided or the assigned crown schedule has not been consulted. This causes delays.
4. Loss of two days of docket court in Courtrooms 505and 508. The loss of two docket court dates creates bottlenecks in the defence lawyers schedule on Monday, Wednesday and Friday. This reduction in court time also subtracts two days per week in which defence counsel could do bail hearings on domestic and drug matters. The net effect is added pressure on Monday, Wednesday and Friday.
5. Scheduling show cause hearings. Bail hearings in 306 commence at 12:30 p.m.. In courtroom 505 and 508 they commence at 11:00 a.m.. The commencement of bail hearings in 505 and 508 commence mid-way through the morning trial session. Sometimes bail hearings in 306 go beyond 2:00 p.m, which interferes with the commencement of afternoon trial sessions.
6. Pre-trial conferences (commencing at 1:30 p.m.), often interfere with the timing of bail hearings and cause lateness in attending 2:00 court sittings.
7. Problems in courtroom 306. In order to conduct guilty pleas in courtroom 306, defence counsel must have their matter moved into the disposition court and be waiting “in line” waiting to consult with the disposition crown. This must be done to ensure the matter proceeds. To do so, defence counsel must be in the courtroom by 9:15 a.m. to speak with the prosecutor who usually arrives between 9:20 and 9:25 a.m.. Court does not open until 9:30 a.m., which interferes with scheduled start times for trial.
8. Courtroom 505 inefficiency. Need I say more?
9. Navigating the Calgary Court Centre. It is not unusual for defence counsel to be in a minimum of 5 courtrooms during a morning session. Navigating between the four docket courts and 14 floors where other matters are scheduled creates inherent problems.
10. CCTV Interviews. Given there are only three CCTV interview booths, it is not unusual to have lineups of defence counsel waiting to speak with clients.
11. Changing courtrooms. Defence counsel seldom, if ever, receives notice that a trial has been moved from one courtroom to another. As such, it is not unusual for defence counsel to attend court where trial is expected to commence, only to find it is not there. The lawyer must then make efforts to locate the trial.
12. Security. It is not unusual for defence counsel to be awaiting their client for a variety of reasons, including delay at the main floor security counter.
13. Prisoner transport throughout the facility. Oftentimes it is necessary for defence lawyers to receive last minute instructions from clients. Inherent delays caused in transporting prisoners to the courtroom or interviewing them in the basement cells can cause delay.
Indeed, despite the best efforts of defence counsel, there are undoubtedly unavoidable practical difficulties to being ready to commence court “on time”. The only stakeholder in the process encumbered by these practical difficulties is defence counsel. The CDLA will work to bring awareness of these issues to the various participants in the criminal justice system. The CDLA encourages members to communicate any practical difficulties in this regard to the CDLA Executive so that issues may be addressed in the future.
POST REMEMBRANCE DAY MEETING: WEDNESDAY NOVEMBER 12TH, 2008
The next CDLA general meeting is scheduled on Wednesday, November 12th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. The meeting has been rescheduled due to Remembrance Day.
On that note, the CDLA reminds all members to take time to reflect and remember Canada’s fallen heroes.
Submitted by: David G. Chow
Fagan & Chow
http://www.faganandchow.com/
CASE BRIEFS by Alan Pearse
R v Blacklock 2008 CarswellOnt 2163
Facts: Accused convicted of impaired/08 at trial. Unexplained 32 minute delay between 1st and 2nd breath sample.
Ratio: Acquittal. Where crown does not explain delay, no evidence to support statement that 2nd test taken “as soon as practicable.”
Comment: Not totally clear from either the appeal or trial decisions, but a fair reading is that the defence didn’t even cross-examine on this point (“The facts were not in dispute”).
For a similar analysis, see R v Partnoy 2008 CarswellOnt 2192
Also see R v Ellwood 2008 CarswellOnt 4169, where a 10 minute delay so the officer could go on an “errand” resulted in an acquittal.
R v Maghdoori 2008 CarswellOnt 1666
Facts: Accused charged impaired/08. Officer observed indicia of impairment, but made no notes on evening in question. On arrest, accused advised that police had security tape, and that same was kept for only 60 days. Video tape likely of little relevance, as only in “freeze frame” captures. Accused retained lawyer outside 60 day period, and tape no longer available.
Ratio: Stay of proceedings for lost evidence. Retention policy was arbitrary, unjustified and frustrated disclosure process.
Comment: The court is very, very critical of this policy. The stay here has very little to do with a tangible breach of the CRF 7 right to make full answer and defence. In fact, it is quite clear that the lost video would have been of almost no benefit to the accused. Generally, the court (after reviewing similar decisions) is prepared to “punish” the crown so that they will change their policy.
R v Charette 2008 CarswellOnt 1431
Facts: Accused convicted of impaired/08. Accused argued that police did not have RPG, but did not make CRF 8 application.
Ratio: Appeal allowed. Lack of RPG does not render certificate inadmissible, but does prevent the crown from relying on the presumption back. Matter sent back for trial.
Comment: If you’ve ever found yourself in a trial with a weak RPG, but didn’t send over a Charter notice, then this is the case for you. Generally, the authorities on this issue are divided, with some saying you have to do this as a CRF 8 argument, and others saying it’s part of the crown’s case.
The main difference is that, with a CRF 8 application, you have to send over notice, the crown gets to use the “balance of probabilities” burden (i.e. via warrantless search and seizure of the breath sample), and you have to deal with remedy under CRF 24(2). On the other hand, if RPG is part of the crown’s case, they have to prove it beyond a reasonable doubt, there is no notice, and there is no remedy argument, all of which benefit the defence.
Most of the “non-charter” cases in this area simply rely on Bernshaw and Woods to state that RPG is part of the crown’s case. This case is interesting because it specifically rejects this argument, but then goes on to state that the now admissible certificate cannot be used to support the presumption back (i.e. the crown must call an expert). In Alberta, the experts all reside in Edmonton, and are not commonly called out unless there is an “impaired causing” charge.
R v McKelvey 2008 CarswellAlta 1121
Facts: Accused acquitted of impaired driving. Trial Judge found crown had proved beyond reasonable doubt that accused operate vehicle while impaired. However, evidence of impairment excluded via CRF 9, because initial detention not supported by evidence. Further, even if original detention reasonable, no need to keep accused for over 10 hours.
Ratio: Accused arbitrarily detained. However, because evidence came from civilians, CRF 24(2) not appropriate remedy. Appropriate remedy was judicial stay. Acquittal upheld.
Comment: Interesting because, notwithstanding the fact that the accused was clearly guilty, and same could be proven by civilian evidence, the court is still willing to grant a remedy. Again, we see a willingness to essentially “punish” inappropriate police behaviour.
R v Hey 2008 CarswellAlta 383
Facts: Accused charged impaired/08. Accused advised officer that had one (1) beer five (5) hours ago. Accused smelled of alcohol, had red, glassy eyes. Failed ASD.
Ratio: Accused acquitted. Crown cannot prove RPG for 254(2) demand met. Specifically, smell of alcohol came from vehicle, not accused, and admission of consumption would mean that no alcohol left in system.
Comment: Argued by Ian MacKay, before the Honourable Judge Barley. Judge Barley reviews the relevant authority, and correctly applies same. However, also of note is the fact that this seems to follow the R v Woods analysis of not requiring RPG to be done as a CRF 8 argument (this was discussed above in more detail).
R v White 2008 CarswellAlta 1331
Comment: The accused is sentenced to a CSO for a “major sexual assault,” and the ACA upholds it. This case will be of limited application given the changes brought in December, 2007 and July, 2008. However, there is a good quote on how to properly interpret “starting point cases.” Essentially, the ACA points out that the “starting point case” is only the “mid-range” or “average” of the sentences available. For example, a “three year” starting point might in fact mean that the appropriate range is between one (1) to four (4) years.
Sandercock, in our view, failed to provide the requisite "clarity ... in setting ranges for offences" of sexual assault. A starting point simpliciter is not a range. McLachlin, J., (as she then was), speaking for the dissenting judges in McDonnell, emphasized that "the 'starting point' is not a principle of law, but rather a tool to determine the proper range of sentence for a certain type of offence." (at para. 109)
28 That being so, how does one go about determining a "starting point"? McLachlin, J. explained that the first step is to ascertain "the range of sentence for a typical case". Importantly, she added:
... The starting point may be viewed as the mid-point in the traditional range of sentences for a particular sort of crime.
R v Wolbeck 2008 CarswellAlta 1366
Facts: Accused is convicted at trial of impaired/08. Main issue was fact that police had dialed phone numbers so that the accused could contact counsel. Therefore, police may have interfered with his choice of counsel.
Ratio: Conviction overturned. Acquittal entered.
Comment: This is another case dealing with the “Rath-Akot” issue. Essentially, the argument is that the police should not be participating in the accused’s choice of counsel at all. The police should give the accused the books, lists, and then leave him alone. If the police deviate from this, the certificate is excluded.
The reported cases from the provincial courts, especially in Calgary, were overwhelmingly in favor of this argument. However, last year there were a couple of cases from QB that seemed to put the law in flux.
This case is important because it is very recent (October 7, 2008) and more or less applies the “stricter” approach of the provincial courts.
R v Berquist 2008 CarswellAlta 1186
Facts: Impaired driving/08. Main issue is care and control.
Ratio: After rebutting the presumption, the court holds that the accused is not in care and control.
Comment: Argued in Airdrie by Tim Foster in front of Judge Barley. Apart from the fact that by coming to Airdrie Mr. Foster is clearly horning in on my (Alan Pearse’s) racket, this case is also note worthy for the following passage:
18 In my opinion, the location of the gear shift behind the steering wheel negates the possibility of accidentally putting the motor vehicle in gear. A lurching drunk might accidentally put his foot on the brake, but it is difficult to see how he might accidentally reach around the steering wheel and pull the gear shift toward him.
R v Goss 2008 CarswellAlta 145
Facts: Impaired/08. Officer spent 20 minutes obtaining accused’s personal information and making notes before taking him to check stop bus. Accused argue samples not taken “as soon as practicable.”
Ratio: Acquittal. Samples not taken “as soon as practicable.”
Comments: Argued by Ian MacKay in front of the Honourable Judge Ogle. Main analysis starts at para 57. In response to the officer’s testimony, Judge Ogle notes:
a. The fact that the officer wanted to make his notes “as soon as practicable” is not a reasonable delay. It is the samples that have to be taken “as soon as practicable.”
b. The fact that the officer wanted to make his notes in a “controlled” environment is also not a reasonable delay. The bus would be just as “controlled.”
Submitted by: Alan Pearse
Sunday, October 5, 2008
CDLA Newsletter - October 1st, 2008 - Issue #4
SEPTEMBER REVIEW
Calgary’s Criminal Defence Lawyer’s Association had its largest turnout – 40 lawyers – for the September 9th, 2008 meeting. Several issues were discussed, including the CDLA’s participation in LESA’s continuing education program and of course practice implementations. Committees were created to address each of these areas. Jim Lutz, Joel Livergant and Rebecca Snukal volunteered to spearhead continuing education programs; while Mitch Stephensen, Mike Dinkel and Allan Fay were tasked with the responsibility of liaising with Judge Wilkins regarding the various practice implementations. CDLA President Charlie Stewart sits on all committees. Additionally, Margaret Keelaghan and Nancy Cush offered to liaise with the Edmonton Trial Lawyer’s Association in an effort to create some synchronicity between our association and our more experienced colleagues up north.
The CDLA Website continued to grow. Access to the Member’s Only section was opened to all defence lawyers. This section of the Website includes legal resources, such as briefs, memorandums and a wealth of other useful information designed to assist members with the day to day practice of law. Resources on these pages are only as good as the contributions made from members of the criminal defence bar, and as such, we encourage everybody to contribute on a regular basis. We are indebted to John Hooker for his valuable contributions. Members are encouraged to forward legal briefs, arguments, factums or other submissions to admin@ccdla.ca . All contributions are welcome and will be posted in the Private Member’s Section.
Additionally, the CDLA has created an “online calendar”. Invitations to join the Online Calendar were forwarded to all lawyers. The Online Calendar is a useful resource for locating defence counsel travelling to the various circuit points and other jurisdictions. Like all of the resources on this site, the online calendar only properly functions with the participation of all defence counsel.
In addition to research and other information contained within the Member’s Only section, the CDLA Website also offers a private “member’s only” chat page (the CDLA Rant) and the CDLA Forum. The CDLA Forum is designed to promote more scholarly contributions. All members are welcome to submit contributions to the CDLA Forum at cdlaforum@ccdla.ca . Should anybody have any suggestions for the CDLA Website, or wish to contribute to the Website (with research ect.) please send comments to admin@ccdla.ca or post your thoughts on the CDLA Rant. A number of suggestions have been made by various members – such as posting minutes of each meeting on the Website. These implementations will be made in due course.
Finally, annual membership fees for the CDLA are due. Please submit membership fees in trust to CDLA Treasurer Mike Dinkel as soon as possible.
MEETING: OCTOBER 14TH, 2008
The next CDLA general meeting is scheduled on Tuesday, October 14th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. Again, we welcome and encourage active participation by all members of the defence bar (including members of the Youth Criminal Defence Office and Duty Counsel). So we can properly address issues, we invite every member to email concerns to the executive so that issues may be tabled at the upcoming meeting. The proposed agenda includes progress updates from the various committees and continued discussion on strategies to deal with practice implementations. Perhaps most importantly, however, CDLA President Charlie Stewart and Treasurer Mike Dinkel will speak to the group about a Province-Wide Case Management Project.
PROVINCE-WIDE CASE MANAGEMENT PROJECT
Deputy Chief Judge Lefever contacted the CDLA in September to advise that a Province-Wide Case Management Initiative has been in the works for sometime. Should it come to fruition, the new Case Management regime could result in dramatic changes to the practice of criminal law in this jurisdiction. Deputy Chief Judge Lefever has graciously offered to speak to the Calgary defence bar about this initiative on THURSDAY, OCTOBER 16TH, 2008 at 12:30 p.m. in the Barrister’s Lounge Boardroom. Given the importance of this information session, we request and encourage all members of the CDLA to attend. Also, should anybody wish to familiarize themselves with the initiative, please visit http://www.albertacourts.ca/ . An “Executive Summary” of the project is readily available to all viewers at:
http://www.albertacourts.ca/LinkClick.aspx?fileticket=X3VS1VYdqOo%3d&tabid=52&mid=533 .
Though the case management initiative includes a number of proposals, Crown file ownership is at the forefront of the agenda. Also included within the agenda are proposals such as: an electronic court booking system, augmented utilization of the Justice of the Peace for administrative matters and the use by the Crown of paralegals and legal assistants in docket courts rather than lawyers. This is by no means an exhaustive list.
The Calgary criminal defence bar has hitherto been absent from discussions regarding this project. Bottom line: to protect the rights of the accused and the interests of independent practitioners at the criminal defence bar, we must get involved.
Submitted by: David G. Chow
Fagan & Chow
BRIEF ON PROPOSED CHANGES by Alan Pearse
This is a brief on the proposed changes to the Provincial Court of Alberta, Criminal Division.
The document reviewed is approximately six (6) pages long. It contains many meaningless “mom and apple pie” statements. It also contains practical changes to the court.
From a practical standpoint, there are several changes of note:
a.) The entire division of labor at the crown’s office is going to be overhauled. Specifically:
i. There will be a “file ownership” policy.
ii. Crown will be assigned to a file very early on.
iii. There will be less real prosecutors and judges in court for non-contentious matters. Crown will use “paralegals,” and the court will use a “Justice of the Peace.”
b. Unless your matter is complex, or unless there is a Charter argument, you will no longer have an assigned trial courtroom. On the day of trial, all matters will be placed into an “assignment court.” Witnesses, defense and crown will all report to this court. Within this courtroom a determination will be made as to where the matter will proceed. For example, if it is to proceed to trial, the case is moved to a trial court. If the case is to be adjourned, then it will be done in the assignment court. If the case is to be resolved, then it goes to a resolution court.
c. Technology will be used to handle this system. Defence counsel are expected to interact with the new technology.
Ultimately, since this new system will save time, more specialized courts will be created.
Submitted by: Alan Pearse
Calgary’s Criminal Defence Lawyer’s Association had its largest turnout – 40 lawyers – for the September 9th, 2008 meeting. Several issues were discussed, including the CDLA’s participation in LESA’s continuing education program and of course practice implementations. Committees were created to address each of these areas. Jim Lutz, Joel Livergant and Rebecca Snukal volunteered to spearhead continuing education programs; while Mitch Stephensen, Mike Dinkel and Allan Fay were tasked with the responsibility of liaising with Judge Wilkins regarding the various practice implementations. CDLA President Charlie Stewart sits on all committees. Additionally, Margaret Keelaghan and Nancy Cush offered to liaise with the Edmonton Trial Lawyer’s Association in an effort to create some synchronicity between our association and our more experienced colleagues up north.
The CDLA Website continued to grow. Access to the Member’s Only section was opened to all defence lawyers. This section of the Website includes legal resources, such as briefs, memorandums and a wealth of other useful information designed to assist members with the day to day practice of law. Resources on these pages are only as good as the contributions made from members of the criminal defence bar, and as such, we encourage everybody to contribute on a regular basis. We are indebted to John Hooker for his valuable contributions. Members are encouraged to forward legal briefs, arguments, factums or other submissions to admin@ccdla.ca . All contributions are welcome and will be posted in the Private Member’s Section.
Additionally, the CDLA has created an “online calendar”. Invitations to join the Online Calendar were forwarded to all lawyers. The Online Calendar is a useful resource for locating defence counsel travelling to the various circuit points and other jurisdictions. Like all of the resources on this site, the online calendar only properly functions with the participation of all defence counsel.
In addition to research and other information contained within the Member’s Only section, the CDLA Website also offers a private “member’s only” chat page (the CDLA Rant) and the CDLA Forum. The CDLA Forum is designed to promote more scholarly contributions. All members are welcome to submit contributions to the CDLA Forum at cdlaforum@ccdla.ca . Should anybody have any suggestions for the CDLA Website, or wish to contribute to the Website (with research ect.) please send comments to admin@ccdla.ca or post your thoughts on the CDLA Rant. A number of suggestions have been made by various members – such as posting minutes of each meeting on the Website. These implementations will be made in due course.
Finally, annual membership fees for the CDLA are due. Please submit membership fees in trust to CDLA Treasurer Mike Dinkel as soon as possible.
MEETING: OCTOBER 14TH, 2008
The next CDLA general meeting is scheduled on Tuesday, October 14th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. Again, we welcome and encourage active participation by all members of the defence bar (including members of the Youth Criminal Defence Office and Duty Counsel). So we can properly address issues, we invite every member to email concerns to the executive so that issues may be tabled at the upcoming meeting. The proposed agenda includes progress updates from the various committees and continued discussion on strategies to deal with practice implementations. Perhaps most importantly, however, CDLA President Charlie Stewart and Treasurer Mike Dinkel will speak to the group about a Province-Wide Case Management Project.
PROVINCE-WIDE CASE MANAGEMENT PROJECT
Deputy Chief Judge Lefever contacted the CDLA in September to advise that a Province-Wide Case Management Initiative has been in the works for sometime. Should it come to fruition, the new Case Management regime could result in dramatic changes to the practice of criminal law in this jurisdiction. Deputy Chief Judge Lefever has graciously offered to speak to the Calgary defence bar about this initiative on THURSDAY, OCTOBER 16TH, 2008 at 12:30 p.m. in the Barrister’s Lounge Boardroom. Given the importance of this information session, we request and encourage all members of the CDLA to attend. Also, should anybody wish to familiarize themselves with the initiative, please visit http://www.albertacourts.ca/ . An “Executive Summary” of the project is readily available to all viewers at:
http://www.albertacourts.ca/LinkClick.aspx?fileticket=X3VS1VYdqOo%3d&tabid=52&mid=533 .
Though the case management initiative includes a number of proposals, Crown file ownership is at the forefront of the agenda. Also included within the agenda are proposals such as: an electronic court booking system, augmented utilization of the Justice of the Peace for administrative matters and the use by the Crown of paralegals and legal assistants in docket courts rather than lawyers. This is by no means an exhaustive list.
The Calgary criminal defence bar has hitherto been absent from discussions regarding this project. Bottom line: to protect the rights of the accused and the interests of independent practitioners at the criminal defence bar, we must get involved.
Submitted by: David G. Chow
Fagan & Chow
BRIEF ON PROPOSED CHANGES by Alan Pearse
This is a brief on the proposed changes to the Provincial Court of Alberta, Criminal Division.
The document reviewed is approximately six (6) pages long. It contains many meaningless “mom and apple pie” statements. It also contains practical changes to the court.
From a practical standpoint, there are several changes of note:
a.) The entire division of labor at the crown’s office is going to be overhauled. Specifically:
i. There will be a “file ownership” policy.
ii. Crown will be assigned to a file very early on.
iii. There will be less real prosecutors and judges in court for non-contentious matters. Crown will use “paralegals,” and the court will use a “Justice of the Peace.”
b. Unless your matter is complex, or unless there is a Charter argument, you will no longer have an assigned trial courtroom. On the day of trial, all matters will be placed into an “assignment court.” Witnesses, defense and crown will all report to this court. Within this courtroom a determination will be made as to where the matter will proceed. For example, if it is to proceed to trial, the case is moved to a trial court. If the case is to be adjourned, then it will be done in the assignment court. If the case is to be resolved, then it goes to a resolution court.
c. Technology will be used to handle this system. Defence counsel are expected to interact with the new technology.
Ultimately, since this new system will save time, more specialized courts will be created.
Submitted by: Alan Pearse
Tuesday, September 2, 2008
CDLA Newsletter - September 3rd, 2008 - Issue #3
AUGUST REVIEW
The Criminal Defence Lawyer’s Association continued to make strides in the month of August. CDLA President Charlie Stewart officially introduced the association to Assistant Chief Judge Wilkins and was assured that the Association will be consulted on future practice issues and included in future practice committee meetings. Though the CDLA Executive is pleased to be recognized for the purpose of representing its membership, it acknowledges that efforts must still be made to address issues in the present. Accordingly, the CDLA continues to work towards the implementation of an effective, legal, responsive and fair action plan that appropriately balances the interests of all stakeholders in the criminal justice system. The CDLA continues to have significant concerns over recent practice implementations in Courtroom 505 and 508.
The CDLA recognizes the diversity in practice amongst the defence bar. As such, it will endeavor to communicate the content of any practice committee proposals to all defence lawyers, including CDLA members, in a timely manner. Given the diversity in practice, it is important for all defence counsel to actively participate in discussions about procedure and practice in the Calgary Court’s Centre. Suffice it to say, practice implementations having little or no impact on some lawyers may have great impact on others. To fully appreciate these realities, feedback from all lawyers on any practice issue is critical.
Development of the CDLA Website continued, culminating with the launch of the Private Member’s Section. The first rounds of ccdla.ca email accounts, passwords and discussion forum accounts were distributed on August 28th, 2008, with the remainder to be distributed to members over the next few weeks. Members are encouraged to visit and contribute to discussion on our private message board on a regular basis. This discussion board, titled the CDLA Rant, is accessible, usable and viewable only by CDLA members. The CDLA Rant provides a medium for members to express themselves freely and privately on any issue in criminal justice or otherwise.
To promote the educational component of the Website, the CDLA Executive is accepting contributions from all members. Members are encouraged to forward legal briefs, arguments, factums or other submissions to admin@ccdla.ca . All contributions are welcome and will be posted in the Private Member’s Section.
MEETING: SEPTEMBER 9TH, 2008
The next CDLA general meeting is scheduled on Tuesday, September 9th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. With most lawyers returning from summer holidays, we hope to have a large turnout for this gathering.
Again, we welcome and encourage active participation by all members of the defence bar (including members of the Youth Criminal Defence Office and Duty Counsel). So we can properly address issues, we invite every member to email concerns to the executive so that issues may be tabled at the upcoming meeting.
Topics for consideration include the upcoming Courtroom 505 Practice Note, duty counsel issues in Courtrooms 306 and 308, legal aid and perhaps most importantly, the development of strategies to address existing practice concerns in the Calgary Courts Centre. We look forward to seeing all of you.
David G. Chow
CASE BRIEFS – by Alan Pearse
R v Chorney 2008 ABPC 206, 2008 CarswellAlta 967
Facts: A charged impaired/08. A drive somewhat erratically. Strong smell of alcohol from vehicle, which had several occupants. A said had three drinks. Cop make no inquiry as to over how long a period drinks consumed. A had glazed eyes and slurred speech. Cop formed RPG for demand after one (1) minute. A stumble to police car. Cop noticed A’s breath smell of alcohol while in back of police car. No field sobriety tests done.
Held: Evidence supports inference that A consumed alcohol, not impairment. Acquittal. Main analysis para 52-58.
Comment: As usual, Judge Allen reviews most of the leading Alta cases on this issue. Useful to the Defense is:
a. In the cross-examination, found at para 54, defense counsel notes that the officer performed no sobriety tests. As same are now clearly authorized by Parliament under the July 2, 2008 amendments, this is a useful way to get around an officer claiming “I didn’t have the ASD on me.”
b. The officer is asked what he considers RPG to be (i.e. in other cases, not the case at bar). Cop testified that he only uses the ASD when he has no RPG. This is also a good way to get around the objective RPG (“See, this cop only uses the ASD when he has absolutely nothing.”)
R v Jackman 2008 ABPC 201, 2008 CarswellAlta 965
Facts: A charged with PPT. Cops execute dynamic entry search warrant. All occupants corralled into kitchen. Cop asked A if want lawyer. A says “Not now.” Cop asks “Who lives here?” A replies “Just me.” Crown only calls two (2) of six (6) officers present. Primary investigator testifies no threats or inducements made.
Ratio: Main analysis at para 23 – 41. Statement inadmissible.
#1. Voluntary.
The court correctly states that all statements to police are presumed to be inadmissible. Here, because:
a. crown chose to call only some of the officers, which produced “gaps” in the continuity of the accused (i.e. where other officers or detainees could have influenced
b. The police entered yelling, with guns drawn,
c. All occupants are “corralled” into the kitchen.
d. All of the occupants are released, except for the accused.
The crown does not meet their burden.
#2. 10(b)
The statement “Not now,” while being handcuffed in the kitchen, does not meet the high test for waiver.
Comment: The CRF 10(b) analysis is correct, but not surprising.
The more interesting part of the case is the “Voluntary” analysis. The court holds that the primary investigator is credible, but a “bare conclusory” statement is not enough (i.e. “I saw no-one threaten the accused.) The main point is that when a “dynamic entry” warrant is being executed, the crown will be held to a very, very strict standard on any statements made. Note that the accused doesn’t even testify, and there is no real evidence of coercion. It’s simply the fact that there are times when the accused is left alone with the other detainees and officers that excludes the statement. In these circumstances, the crown has to prove that none of these people threatened the accused.
R v Tran 2008 ABQB 452, 2008 CarswellAlta 986
Comment: Asian accused stopped for alleged traffic infraction. Car then searched, more or less for no reason (my take on it). Breach found. Nice review of law. Analysis is correct and consistent with leading cases.
More interesting though, is the quote regarding the REP the accused might expect in his car. At para 56:
56 Why is there a lesser expectation of privacy in a vehicle than one's home? The cases do not provide us with an answer to that question, although practically, vehicles, by their nature are more in the public realm than one's home. However, when one considers the factors outlined in Edwards , one would be hard-pressed to reduce the level of privacy one expects in one's vehicle to a level much lower than one has in one's home. While this Court recognizes that we have much more security when we are in our homes and more of our personal belongings are located in our homes, we have an expectation of privacy in our vehicles, as well, albeit a lower expectation than we have in our homes. Why else do most people have security systems installed in their vehicles and why do we lock our vehicles when we leave them for periods of time? Why do we become offended when we find someone looking into the windows of our vehicles? The statement in R. v. Buhay , 2003 SCC 30 at para. 21, in relation to a rented bus depot locker applies equally to owners of motor vehicles who "have a subjective expectation of privacy and this expectation is objectively reasonable ... to secure one's belongings against theft, damage, or even the simple curiosity of others." Even if we have a lower expectation of privacy in our vehicles, we can further fine-tune that expectation. The court in Calderon said at para. 98, "the expectation of privacy in a car's trunk, which is under lock and key, is greater than the interior of a car, where items are ordinarily in plain view or easily accessible." In this case, Sgt. Topham found the impugned evidence in the trunk of the vehicle in which the accused was travelling.
[emphasis is mine]
Note that this is from AQB (i.e. binding on our provincial courts).
R v McKelvey 2008 ABQB 466, 2008 CarswellAlta 1121
Facts: A charged with impaired/08. A’s level of impairment “high.” Detained by police for ten (10) hours. Crown failed to prove that A so drunk that would be in A’s interest or public interest for A to be kept in custody. Police did not offer to call someone to drive A home. Trial judge find breach CRF 9, acquittal. Crown appeals.
Ratio: Appeal dismissed. Acquittal upheld
Comment: From AQB, so binding on lower courts. This practice of systematically detaining impaired drivers is quite common with the RCMP on the circuit points. Also note that the court effectively shifts the burden to the crown to explain the detention at para 8.
The Criminal Defence Lawyer’s Association continued to make strides in the month of August. CDLA President Charlie Stewart officially introduced the association to Assistant Chief Judge Wilkins and was assured that the Association will be consulted on future practice issues and included in future practice committee meetings. Though the CDLA Executive is pleased to be recognized for the purpose of representing its membership, it acknowledges that efforts must still be made to address issues in the present. Accordingly, the CDLA continues to work towards the implementation of an effective, legal, responsive and fair action plan that appropriately balances the interests of all stakeholders in the criminal justice system. The CDLA continues to have significant concerns over recent practice implementations in Courtroom 505 and 508.
The CDLA recognizes the diversity in practice amongst the defence bar. As such, it will endeavor to communicate the content of any practice committee proposals to all defence lawyers, including CDLA members, in a timely manner. Given the diversity in practice, it is important for all defence counsel to actively participate in discussions about procedure and practice in the Calgary Court’s Centre. Suffice it to say, practice implementations having little or no impact on some lawyers may have great impact on others. To fully appreciate these realities, feedback from all lawyers on any practice issue is critical.
Development of the CDLA Website continued, culminating with the launch of the Private Member’s Section. The first rounds of ccdla.ca email accounts, passwords and discussion forum accounts were distributed on August 28th, 2008, with the remainder to be distributed to members over the next few weeks. Members are encouraged to visit and contribute to discussion on our private message board on a regular basis. This discussion board, titled the CDLA Rant, is accessible, usable and viewable only by CDLA members. The CDLA Rant provides a medium for members to express themselves freely and privately on any issue in criminal justice or otherwise.
To promote the educational component of the Website, the CDLA Executive is accepting contributions from all members. Members are encouraged to forward legal briefs, arguments, factums or other submissions to admin@ccdla.ca . All contributions are welcome and will be posted in the Private Member’s Section.
MEETING: SEPTEMBER 9TH, 2008
The next CDLA general meeting is scheduled on Tuesday, September 9th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. With most lawyers returning from summer holidays, we hope to have a large turnout for this gathering.
Again, we welcome and encourage active participation by all members of the defence bar (including members of the Youth Criminal Defence Office and Duty Counsel). So we can properly address issues, we invite every member to email concerns to the executive so that issues may be tabled at the upcoming meeting.
Topics for consideration include the upcoming Courtroom 505 Practice Note, duty counsel issues in Courtrooms 306 and 308, legal aid and perhaps most importantly, the development of strategies to address existing practice concerns in the Calgary Courts Centre. We look forward to seeing all of you.
David G. Chow
CASE BRIEFS – by Alan Pearse
R v Chorney 2008 ABPC 206, 2008 CarswellAlta 967
Facts: A charged impaired/08. A drive somewhat erratically. Strong smell of alcohol from vehicle, which had several occupants. A said had three drinks. Cop make no inquiry as to over how long a period drinks consumed. A had glazed eyes and slurred speech. Cop formed RPG for demand after one (1) minute. A stumble to police car. Cop noticed A’s breath smell of alcohol while in back of police car. No field sobriety tests done.
Held: Evidence supports inference that A consumed alcohol, not impairment. Acquittal. Main analysis para 52-58.
Comment: As usual, Judge Allen reviews most of the leading Alta cases on this issue. Useful to the Defense is:
a. In the cross-examination, found at para 54, defense counsel notes that the officer performed no sobriety tests. As same are now clearly authorized by Parliament under the July 2, 2008 amendments, this is a useful way to get around an officer claiming “I didn’t have the ASD on me.”
b. The officer is asked what he considers RPG to be (i.e. in other cases, not the case at bar). Cop testified that he only uses the ASD when he has no RPG. This is also a good way to get around the objective RPG (“See, this cop only uses the ASD when he has absolutely nothing.”)
R v Jackman 2008 ABPC 201, 2008 CarswellAlta 965
Facts: A charged with PPT. Cops execute dynamic entry search warrant. All occupants corralled into kitchen. Cop asked A if want lawyer. A says “Not now.” Cop asks “Who lives here?” A replies “Just me.” Crown only calls two (2) of six (6) officers present. Primary investigator testifies no threats or inducements made.
Ratio: Main analysis at para 23 – 41. Statement inadmissible.
#1. Voluntary.
The court correctly states that all statements to police are presumed to be inadmissible. Here, because:
a. crown chose to call only some of the officers, which produced “gaps” in the continuity of the accused (i.e. where other officers or detainees could have influenced
b. The police entered yelling, with guns drawn,
c. All occupants are “corralled” into the kitchen.
d. All of the occupants are released, except for the accused.
The crown does not meet their burden.
#2. 10(b)
The statement “Not now,” while being handcuffed in the kitchen, does not meet the high test for waiver.
Comment: The CRF 10(b) analysis is correct, but not surprising.
The more interesting part of the case is the “Voluntary” analysis. The court holds that the primary investigator is credible, but a “bare conclusory” statement is not enough (i.e. “I saw no-one threaten the accused.) The main point is that when a “dynamic entry” warrant is being executed, the crown will be held to a very, very strict standard on any statements made. Note that the accused doesn’t even testify, and there is no real evidence of coercion. It’s simply the fact that there are times when the accused is left alone with the other detainees and officers that excludes the statement. In these circumstances, the crown has to prove that none of these people threatened the accused.
R v Tran 2008 ABQB 452, 2008 CarswellAlta 986
Comment: Asian accused stopped for alleged traffic infraction. Car then searched, more or less for no reason (my take on it). Breach found. Nice review of law. Analysis is correct and consistent with leading cases.
More interesting though, is the quote regarding the REP the accused might expect in his car. At para 56:
56 Why is there a lesser expectation of privacy in a vehicle than one's home? The cases do not provide us with an answer to that question, although practically, vehicles, by their nature are more in the public realm than one's home. However, when one considers the factors outlined in Edwards , one would be hard-pressed to reduce the level of privacy one expects in one's vehicle to a level much lower than one has in one's home. While this Court recognizes that we have much more security when we are in our homes and more of our personal belongings are located in our homes, we have an expectation of privacy in our vehicles, as well, albeit a lower expectation than we have in our homes. Why else do most people have security systems installed in their vehicles and why do we lock our vehicles when we leave them for periods of time? Why do we become offended when we find someone looking into the windows of our vehicles? The statement in R. v. Buhay , 2003 SCC 30 at para. 21, in relation to a rented bus depot locker applies equally to owners of motor vehicles who "have a subjective expectation of privacy and this expectation is objectively reasonable ... to secure one's belongings against theft, damage, or even the simple curiosity of others." Even if we have a lower expectation of privacy in our vehicles, we can further fine-tune that expectation. The court in Calderon said at para. 98, "the expectation of privacy in a car's trunk, which is under lock and key, is greater than the interior of a car, where items are ordinarily in plain view or easily accessible." In this case, Sgt. Topham found the impugned evidence in the trunk of the vehicle in which the accused was travelling.
[emphasis is mine]
Note that this is from AQB (i.e. binding on our provincial courts).
R v McKelvey 2008 ABQB 466, 2008 CarswellAlta 1121
Facts: A charged with impaired/08. A’s level of impairment “high.” Detained by police for ten (10) hours. Crown failed to prove that A so drunk that would be in A’s interest or public interest for A to be kept in custody. Police did not offer to call someone to drive A home. Trial judge find breach CRF 9, acquittal. Crown appeals.
Ratio: Appeal dismissed. Acquittal upheld
Comment: From AQB, so binding on lower courts. This practice of systematically detaining impaired drivers is quite common with the RCMP on the circuit points. Also note that the court effectively shifts the burden to the crown to explain the detention at para 8.
Wednesday, August 6, 2008
CDLA NEWSLETTER - August 1st, 2008 - Issue #2
JULY REVIEW
Despite the Calgary Stampede, the July 8th, 2008 CDLA meeting was productive. Topics discussed included procedures in courtroom 306, CDLA participation in Practice implementations and the new impaired driving legislation. A letter addressing the first two topics was forwarded on behalf of the association to Assistant Chief Judge Wilkins earlier this week. We will keep you up-to-date with each new development.
The CDLA is pleased to announce the creation of the Calgary Criminal Defence Lawyer’s Association website. This website consists of a public forum and a private member’s section. The public forum is fully active, while the private member’s section is presently under construction. We invite all members to peruse the website at http://www.ccdla.ca/ . As the website is under continuous development, we encourage you to revisit the site on a regular basis.
The public forum provides useful information on upcoming CDLA events, newsletters and links to various other websites including Lexis/Nexis, the Alberta Courts homepage and Calgary Criminal Lawyer Weekly. The CDLA welcomes suggestions from all members on website development and content.
CDLA MEETING: AUGUST 12TH, 2008
The next CDLA general meeting is scheduled on Tuesday, August 12th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. Again, we welcome and encourage active participation by all members of the defence bar (including members of the Youth Criminal Defence Office and Duty Counsel). So we can properly address issues, we invite every member to email concerns to the executive so that the issue(s) may be tabled at the upcoming meeting. Topics for consideration include the Courtroom 508 Practice Note (discussed in detail below), video conferencing issues and the new impaired driving legislation.
PRACTICE NOTE #5
A review of Practice Note #5 dated June 12th, 2008 confirms that persons seeking bail in domestic violence court are now only capable of doing so three out of seven days a week (Monday, Wednesday and Friday). This implementation creates a number of legal and practical problems.
Practically speaking, if defence counsel arrives in Court on Monday to represent an accused who has been detained awaiting show cause over a weekend, the next closest date for a bail hearing is two days later, unless the lawyer is prepared to proceed with bail in the first instance (presumably without the benefit of disclosure).
What is troubling is this most recent implementation brazenly ignores the principles enunciated in the Criminal Code of Canada.
Section 516(1) of the Criminal Code stipulates that any adjournment may (not will) be granted by the Court on application by the accused or prosecutor for a period of not more than three clear days, except with the consent of the accused. This provision is permissive not mandatory. Therefore, pursuant to section 516(1), a judge has discretion to adjourn show cause and to determine the length of that adjournment up to three-days (unless the accused consents to longer). Practice Note #5 arguably abrogates this discretion. Since the judge cannot place a bail hearing on a date otherwise reserved for trials (Tuesday and Thursday), the implementation stipulates that a Judge cannot grant an adjournment of less than two days. This policy runs counter to the provisions of the Criminal Code.
Equally troubling, Practice Note #5 mandates automated delays in the bail process for presumptively innocent persons. For example, if an accused is arrested on Monday and opts to have his or her show cause in Provincial Court rather than Arrest Processing, Practice Note #5 results in the detainee languishing in-custody until the next docket date. The net effect is the accused is punished with an extra day in custody for exercising the Provincial Court option.
Practice Note #5 also mandates inequity between represented and unrepresented accused. Consider Rule 15: “An unrepresented accused who is in the process of retaining a lawyer through Legal Aid or privately, will be exempt from these rules until Counsel is appointed or retained”. Essentially, this rule stipulates that the accused who has a lawyer appear on record for the purpose of gathering disclosure or otherwise is subject to the Practice rules. In contrast, an unrepresented accused can arguably conduct show cause on his or her next court appearance, without giving notice, with or without counsel and without being subject to the various restrictions set out in the Practice rules. The point is an unrepresented accused may be able to circumvent the practice rules where a represented accused cannot.
Defence counsel is encouraged to thoroughly review all practice notes. The CDLA would appreciate constructive feedback as to how best to troubleshoot problems.
A review of Practice Note #5 reveals further issues.
To begin, defence counsel should be aware, the rules stipulate that just five scheduled show causes will be heard, beginning at 11:00am on any given docket day. Undoubtedly, the bureaucratization of the court process presents practical problems for busy lawyers trying to navigate their hectic schedules. In the daily grind of conducting business at the Calgary Court Centre, defence counsel hurriedly scuttles between the half-dozen or more courtrooms requiring their attendance at the same time. Countless minutes are wasted languishing outside elevator bays merely to climb a single floor. Additional time is spent scurrying to find trials that have been moved without notice. More minutes evaporate waiting to use one of the three video-conferencing rooms in the Barrister’s Lounge. Conducting trials presents with added difficulties. Morning trial sessions begin at 9:30am and conclude at 12:30pm. Rule 4 stipulates: “scheduled show hearings will start at 11 AM and continue to 12:30 PM”. This begs the question: how can trial lawyers tend to their client’s liberty between 11:00am and 12:30pm? It takes little imagination to conceive that such time restrictions will result in the prolonged detention of individuals seeking bail. Delay will accrue naturally through the process of advanced scheduling in accordance with busy lawyer timetables. Additional delay may accrue with the loss of scheduled show cause hearings due to lawyers delayed from trials. Delay may then be further exacerbated by the need to schedule a second show cause inline with the bail prosecutor’s schedule. All of this happens while a presumptively innocent person bides his or her time in jail.
For those who view posting of the advance judge’s schedule as the essential quid pro quo of the bail negotiation, there is no allowance formalizing advance posting in Courtroom 508.
Finally, the Practice Note specifically stipulates that scheduled show cause hearings “…should not be set anticipating that all information and disclosure may/will be available”. The reality is, most cases are not particularly complex. Generally speaking, the Crown diligently provides disclosure on the first appearance. Indeed, given that most cases are not complex this should be the rule rather than the exception. However, what if disclosure is not available on the first appearance? Surely if defence counsel schedules a show cause hearing, reasonable disclosure ought to be made available? If no disclosure is provided, or no reasonable effort is made to supply it, why should the accused suffer a potential deprivation of liberty when the party controlling the dissemination of information has failed (for whatever reason) to give that which the accused is entitled in order to make full answer and defence? It is always a little disconcerting to run show cause hearings when the Crown is conveying information to a judge that the accused does not have in his or her possession.
The aforementioned passages serve to enliven debate. The CDLA is interested in any other opinions concerning Practice Note #5 or any other policy implementation.
NEW IMPAIRED DRIVING LEGISLATION
Recent amendments to the impaired driving sections of the Criminal Code of Canada have apparently settled the debate of credibility versus technology. The clash of decades ended rather abruptly on July 2nd, 2008 with legislation making it nearly impossible to successfully advance the defence of evidence to the contrary in “over 80” prosecutions. As defence lawyers scramble to mount new defenses, there is little doubt that Parliament’s most recent legislative abomination will leave casualties. Surely even proponents of the technology side of the debate must be left awestruck by the absurdity of some of the changes?
In a system where the State controls the dissemination of information, an accused who potentially consumed no alcohol whatsoever is expected to demonstrate that the approved instrument was either malfunctioning or not being operated properly. Practically speaking, by the time the accused makes his or her first court appearance it is likely the approved instrument will have been used dozens if not hundreds of times since the accused’s sample. By the time the accused can even make a disclosure request, the instrument will have been contaminated many times over, or perhaps even serviced by a member of the police department. The “qualified breath technician” will have supplied information largely contained on a boiler-plate check sheet, and by the time the accused makes his or her first appearance, will likely have conducted numerous tests with other individuals using the same boiler-plate check sheet. With these practical realities in mind, one is left to ponder whether Parliament actually exercised any good faith whatsoever enacting many of these new legislative provisions.
Applying the new legislation, a person could conceivably give credible and reliable evidence of non-consumption of alcohol. This evidence could be corroborated by a thousand witnesses and a Judge could believe every witness and the accused, only to find the accused guilty on the basis of the fact that the defence was incapable of demonstrating that the approved instrument was malfunctioning or not being operated properly.
Even more puzzling, this same person can now be convicted of “over 80” causing death or bodily injury. In framing this legislation, Canada’s Parliamentary brain trust seemingly neglected to consider that “causation” necessitates a necessary relationship between cause and effect. Philosopher David Hume characterized “causation” as the “cement of the universe”. In a legal sense, causation has been interpreted by courts across Canada. In R. v. Nette, [2001] S.C.J. No. 75 the Supreme Court of Canada held that causation requires the act to be a “significant contributing cause”. In R. v. Ewart, [1989] A.J. No. 1036 the Alberta Court of Appeal suggested that causation requires the act to be a “real factor” in bringing about the event.
It takes little imagination to conceive situations where an “over 80 causing” prosecution could lead to absurd results. It has always been open to the Crown to tender expert evidence showing that all persons are impaired to operate a motor vehicle with a blood-alcohol concentration of 100 milligrams percent or greater. However it is difficult to envision how “causing death” or “causing bodily injury” is substantiated by the mere fact of over 80 without more.
Prosecuting impaired driving has never been easier! Making things easier, however, does not necessarily mean things are made better or right. To deal with the July 2nd, 2008 legislative changes, the CDLA is encouraging a joint effort to properly address these new realities in impaired driving cases.
R. v. JANULIS
In March 2007, the Honourable Judge Brown rendered a rather practical and erudite decision in R. v. Janulis, [2007] A.J. No. 821 (Alta. P.C.). Janulis was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams in 100 milliliters of blood. She advanced the classic evidence to the contrary defence. That is, Ms. Janulis supplied evidence of a range blood-alcohol concentration based upon general members of the population. Her range straddled the legal limit.
During Ms. Janulis’ trial, the Alberta Court of Appeal effectively abrogated the evidence to the contrary defence in R. v. MacDonald, [2006] A.J. No. 706. In response, Ms. Janulis applied for a judicial stay of proceedings based upon an infringement of her right to make full answer and defence contrary to section 7 of the Canadian Charter of Rights and Freedoms. Applying R. v. Rose, [1998] S.C.J. (S.C.C.) the Honourable Judge Brown granted the judicial stay. She did so on grounds that “[t]he Charter right to know the case to meet and to make full answer and defence allowed Ms. Janulis to expect to be able to introduce evidence of her later tested elimination rate”. Since there was no “turning back the clock”, the accused established a breach of her Section 7 rights.
Notwithstanding Janulis has no direct correlation to the new drinking and driving amendments it may still assist in framing similar section 7 type challenges. At the very least, it provides useful fodder for discussion.
CASE BRIEFS
R v Imoro 2008 CarswellOnt 3762 (OSCJ)
Facts: A charged with trafficking. Cop gets tip, engages in random virtue testing. Cop buys drugs and gets warrant for apartment. Information from purchase included in ITO. A argues that entrapment is breach of CRF 7, and can seek remedy via CRF 24(2). A argues that there is no need to enter a conviction and use "stay" test via CRF 24(1).
Ratio: Random virtue testing is breach CRF 7, remedy granted via CRF 24(2). There is no need to either enter the conviction or rely on CRF 24(1).
Comment: This is probably the first case to follow this line of reasoning. It is interesting because the entrapment argument is framed as CRF application. This is unusual, as entrapment is typically argued after a conviction has been entered. From a defence perspective, the CRF 7 analysis is preferable, primarily because the test under CRF 24(2) is less onerous. A stay under CRF 24(1) would only be granted in the "clearest of cases." It is also suggested that this case will also make it easier to attack the warrant in a Garofoli application, as the ITO evidence would now clearly be derivative to the breach. This connection would be less clear using the old rules.
R v Hemery 2008 CarswellAlta 931 (ABPC)
Facts: A charged with impaired driving. Cop conducts roving check-stop, asks A if she had been drinking. A said "No." Cop smells alcohol coming from car. Cop tell A to exit vehicle, go to police car. While in car, A says had one drink four (4) hours before. Light odor of alcohol in back of car. Cop makes screening demand. Fail. Arrested for Impaired Driving and breath demand made. A argue breach CRF 8, as no RPG for screening demand.
Ratio: Certificate excluded. Screening demand not based on RPG. Officer's belief that A is lying not enough. Fact that A consumed one (1) drink four (4) hours earlier not enough. Passengers in car could have been consuming alcohol.
Comment: This case is useful in that it holds that a simple statement of having consumed alcohol previously will not be enough for the screening demand. The RPG requires more. For example, the admission of consumption could have been more recent, or there could have been stronger indicia. Even the smell coming from the back of the police car was not enough.
______________________________________
Newsletter Written by David G. Chow (http://www.faganandchow.com/)
Case Briefs Submitted by Alan Pearse
Despite the Calgary Stampede, the July 8th, 2008 CDLA meeting was productive. Topics discussed included procedures in courtroom 306, CDLA participation in Practice implementations and the new impaired driving legislation. A letter addressing the first two topics was forwarded on behalf of the association to Assistant Chief Judge Wilkins earlier this week. We will keep you up-to-date with each new development.
The CDLA is pleased to announce the creation of the Calgary Criminal Defence Lawyer’s Association website. This website consists of a public forum and a private member’s section. The public forum is fully active, while the private member’s section is presently under construction. We invite all members to peruse the website at http://www.ccdla.ca/ . As the website is under continuous development, we encourage you to revisit the site on a regular basis.
The public forum provides useful information on upcoming CDLA events, newsletters and links to various other websites including Lexis/Nexis, the Alberta Courts homepage and Calgary Criminal Lawyer Weekly. The CDLA welcomes suggestions from all members on website development and content.
CDLA MEETING: AUGUST 12TH, 2008
The next CDLA general meeting is scheduled on Tuesday, August 12th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. Again, we welcome and encourage active participation by all members of the defence bar (including members of the Youth Criminal Defence Office and Duty Counsel). So we can properly address issues, we invite every member to email concerns to the executive so that the issue(s) may be tabled at the upcoming meeting. Topics for consideration include the Courtroom 508 Practice Note (discussed in detail below), video conferencing issues and the new impaired driving legislation.
PRACTICE NOTE #5
A review of Practice Note #5 dated June 12th, 2008 confirms that persons seeking bail in domestic violence court are now only capable of doing so three out of seven days a week (Monday, Wednesday and Friday). This implementation creates a number of legal and practical problems.
Practically speaking, if defence counsel arrives in Court on Monday to represent an accused who has been detained awaiting show cause over a weekend, the next closest date for a bail hearing is two days later, unless the lawyer is prepared to proceed with bail in the first instance (presumably without the benefit of disclosure).
What is troubling is this most recent implementation brazenly ignores the principles enunciated in the Criminal Code of Canada.
Section 516(1) of the Criminal Code stipulates that any adjournment may (not will) be granted by the Court on application by the accused or prosecutor for a period of not more than three clear days, except with the consent of the accused. This provision is permissive not mandatory. Therefore, pursuant to section 516(1), a judge has discretion to adjourn show cause and to determine the length of that adjournment up to three-days (unless the accused consents to longer). Practice Note #5 arguably abrogates this discretion. Since the judge cannot place a bail hearing on a date otherwise reserved for trials (Tuesday and Thursday), the implementation stipulates that a Judge cannot grant an adjournment of less than two days. This policy runs counter to the provisions of the Criminal Code.
Equally troubling, Practice Note #5 mandates automated delays in the bail process for presumptively innocent persons. For example, if an accused is arrested on Monday and opts to have his or her show cause in Provincial Court rather than Arrest Processing, Practice Note #5 results in the detainee languishing in-custody until the next docket date. The net effect is the accused is punished with an extra day in custody for exercising the Provincial Court option.
Practice Note #5 also mandates inequity between represented and unrepresented accused. Consider Rule 15: “An unrepresented accused who is in the process of retaining a lawyer through Legal Aid or privately, will be exempt from these rules until Counsel is appointed or retained”. Essentially, this rule stipulates that the accused who has a lawyer appear on record for the purpose of gathering disclosure or otherwise is subject to the Practice rules. In contrast, an unrepresented accused can arguably conduct show cause on his or her next court appearance, without giving notice, with or without counsel and without being subject to the various restrictions set out in the Practice rules. The point is an unrepresented accused may be able to circumvent the practice rules where a represented accused cannot.
Defence counsel is encouraged to thoroughly review all practice notes. The CDLA would appreciate constructive feedback as to how best to troubleshoot problems.
A review of Practice Note #5 reveals further issues.
To begin, defence counsel should be aware, the rules stipulate that just five scheduled show causes will be heard, beginning at 11:00am on any given docket day. Undoubtedly, the bureaucratization of the court process presents practical problems for busy lawyers trying to navigate their hectic schedules. In the daily grind of conducting business at the Calgary Court Centre, defence counsel hurriedly scuttles between the half-dozen or more courtrooms requiring their attendance at the same time. Countless minutes are wasted languishing outside elevator bays merely to climb a single floor. Additional time is spent scurrying to find trials that have been moved without notice. More minutes evaporate waiting to use one of the three video-conferencing rooms in the Barrister’s Lounge. Conducting trials presents with added difficulties. Morning trial sessions begin at 9:30am and conclude at 12:30pm. Rule 4 stipulates: “scheduled show hearings will start at 11 AM and continue to 12:30 PM”. This begs the question: how can trial lawyers tend to their client’s liberty between 11:00am and 12:30pm? It takes little imagination to conceive that such time restrictions will result in the prolonged detention of individuals seeking bail. Delay will accrue naturally through the process of advanced scheduling in accordance with busy lawyer timetables. Additional delay may accrue with the loss of scheduled show cause hearings due to lawyers delayed from trials. Delay may then be further exacerbated by the need to schedule a second show cause inline with the bail prosecutor’s schedule. All of this happens while a presumptively innocent person bides his or her time in jail.
For those who view posting of the advance judge’s schedule as the essential quid pro quo of the bail negotiation, there is no allowance formalizing advance posting in Courtroom 508.
Finally, the Practice Note specifically stipulates that scheduled show cause hearings “…should not be set anticipating that all information and disclosure may/will be available”. The reality is, most cases are not particularly complex. Generally speaking, the Crown diligently provides disclosure on the first appearance. Indeed, given that most cases are not complex this should be the rule rather than the exception. However, what if disclosure is not available on the first appearance? Surely if defence counsel schedules a show cause hearing, reasonable disclosure ought to be made available? If no disclosure is provided, or no reasonable effort is made to supply it, why should the accused suffer a potential deprivation of liberty when the party controlling the dissemination of information has failed (for whatever reason) to give that which the accused is entitled in order to make full answer and defence? It is always a little disconcerting to run show cause hearings when the Crown is conveying information to a judge that the accused does not have in his or her possession.
The aforementioned passages serve to enliven debate. The CDLA is interested in any other opinions concerning Practice Note #5 or any other policy implementation.
NEW IMPAIRED DRIVING LEGISLATION
Recent amendments to the impaired driving sections of the Criminal Code of Canada have apparently settled the debate of credibility versus technology. The clash of decades ended rather abruptly on July 2nd, 2008 with legislation making it nearly impossible to successfully advance the defence of evidence to the contrary in “over 80” prosecutions. As defence lawyers scramble to mount new defenses, there is little doubt that Parliament’s most recent legislative abomination will leave casualties. Surely even proponents of the technology side of the debate must be left awestruck by the absurdity of some of the changes?
In a system where the State controls the dissemination of information, an accused who potentially consumed no alcohol whatsoever is expected to demonstrate that the approved instrument was either malfunctioning or not being operated properly. Practically speaking, by the time the accused makes his or her first court appearance it is likely the approved instrument will have been used dozens if not hundreds of times since the accused’s sample. By the time the accused can even make a disclosure request, the instrument will have been contaminated many times over, or perhaps even serviced by a member of the police department. The “qualified breath technician” will have supplied information largely contained on a boiler-plate check sheet, and by the time the accused makes his or her first appearance, will likely have conducted numerous tests with other individuals using the same boiler-plate check sheet. With these practical realities in mind, one is left to ponder whether Parliament actually exercised any good faith whatsoever enacting many of these new legislative provisions.
Applying the new legislation, a person could conceivably give credible and reliable evidence of non-consumption of alcohol. This evidence could be corroborated by a thousand witnesses and a Judge could believe every witness and the accused, only to find the accused guilty on the basis of the fact that the defence was incapable of demonstrating that the approved instrument was malfunctioning or not being operated properly.
Even more puzzling, this same person can now be convicted of “over 80” causing death or bodily injury. In framing this legislation, Canada’s Parliamentary brain trust seemingly neglected to consider that “causation” necessitates a necessary relationship between cause and effect. Philosopher David Hume characterized “causation” as the “cement of the universe”. In a legal sense, causation has been interpreted by courts across Canada. In R. v. Nette, [2001] S.C.J. No. 75 the Supreme Court of Canada held that causation requires the act to be a “significant contributing cause”. In R. v. Ewart, [1989] A.J. No. 1036 the Alberta Court of Appeal suggested that causation requires the act to be a “real factor” in bringing about the event.
It takes little imagination to conceive situations where an “over 80 causing” prosecution could lead to absurd results. It has always been open to the Crown to tender expert evidence showing that all persons are impaired to operate a motor vehicle with a blood-alcohol concentration of 100 milligrams percent or greater. However it is difficult to envision how “causing death” or “causing bodily injury” is substantiated by the mere fact of over 80 without more.
Prosecuting impaired driving has never been easier! Making things easier, however, does not necessarily mean things are made better or right. To deal with the July 2nd, 2008 legislative changes, the CDLA is encouraging a joint effort to properly address these new realities in impaired driving cases.
R. v. JANULIS
In March 2007, the Honourable Judge Brown rendered a rather practical and erudite decision in R. v. Janulis, [2007] A.J. No. 821 (Alta. P.C.). Janulis was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams in 100 milliliters of blood. She advanced the classic evidence to the contrary defence. That is, Ms. Janulis supplied evidence of a range blood-alcohol concentration based upon general members of the population. Her range straddled the legal limit.
During Ms. Janulis’ trial, the Alberta Court of Appeal effectively abrogated the evidence to the contrary defence in R. v. MacDonald, [2006] A.J. No. 706. In response, Ms. Janulis applied for a judicial stay of proceedings based upon an infringement of her right to make full answer and defence contrary to section 7 of the Canadian Charter of Rights and Freedoms. Applying R. v. Rose, [1998] S.C.J. (S.C.C.) the Honourable Judge Brown granted the judicial stay. She did so on grounds that “[t]he Charter right to know the case to meet and to make full answer and defence allowed Ms. Janulis to expect to be able to introduce evidence of her later tested elimination rate”. Since there was no “turning back the clock”, the accused established a breach of her Section 7 rights.
Notwithstanding Janulis has no direct correlation to the new drinking and driving amendments it may still assist in framing similar section 7 type challenges. At the very least, it provides useful fodder for discussion.
CASE BRIEFS
R v Imoro 2008 CarswellOnt 3762 (OSCJ)
Facts: A charged with trafficking. Cop gets tip, engages in random virtue testing. Cop buys drugs and gets warrant for apartment. Information from purchase included in ITO. A argues that entrapment is breach of CRF 7, and can seek remedy via CRF 24(2). A argues that there is no need to enter a conviction and use "stay" test via CRF 24(1).
Ratio: Random virtue testing is breach CRF 7, remedy granted via CRF 24(2). There is no need to either enter the conviction or rely on CRF 24(1).
Comment: This is probably the first case to follow this line of reasoning. It is interesting because the entrapment argument is framed as CRF application. This is unusual, as entrapment is typically argued after a conviction has been entered. From a defence perspective, the CRF 7 analysis is preferable, primarily because the test under CRF 24(2) is less onerous. A stay under CRF 24(1) would only be granted in the "clearest of cases." It is also suggested that this case will also make it easier to attack the warrant in a Garofoli application, as the ITO evidence would now clearly be derivative to the breach. This connection would be less clear using the old rules.
R v Hemery 2008 CarswellAlta 931 (ABPC)
Facts: A charged with impaired driving. Cop conducts roving check-stop, asks A if she had been drinking. A said "No." Cop smells alcohol coming from car. Cop tell A to exit vehicle, go to police car. While in car, A says had one drink four (4) hours before. Light odor of alcohol in back of car. Cop makes screening demand. Fail. Arrested for Impaired Driving and breath demand made. A argue breach CRF 8, as no RPG for screening demand.
Ratio: Certificate excluded. Screening demand not based on RPG. Officer's belief that A is lying not enough. Fact that A consumed one (1) drink four (4) hours earlier not enough. Passengers in car could have been consuming alcohol.
Comment: This case is useful in that it holds that a simple statement of having consumed alcohol previously will not be enough for the screening demand. The RPG requires more. For example, the admission of consumption could have been more recent, or there could have been stronger indicia. Even the smell coming from the back of the police car was not enough.
______________________________________
Newsletter Written by David G. Chow (http://www.faganandchow.com/)
Case Briefs Submitted by Alan Pearse
CDLA NEWSLETTER - July 1st, 2008 - Issue #1
WHY THE CDLA?
Criminal defence practice is becoming increasingly more complex. In this jurisdiction, each practitioner faces a myriad of issues – educational, practical and economic – which have predominately been shouldered by independent lawyers operating individually within the criminal justice system. The criminal justice system is comprised of a network of stakeholders, including the accused, the defence bar, the judiciary and a host of State agencies such as the Crown and police. Ideally, the system operates to preserve the rule of the law and constitutional rights enshrined in the Charter. However, the interests of each stakeholder are unique and not always consistent with these core values.
The development of law and policy is not merely a matter of erudite legal argument and jurisprudence; it is the product of interest groups lobbying their position within the system. As a collective, each interest group has a powerful voice that, if left unchecked, has the potential to align the system in accordance with a particularized mandate. Undoubtedly, Alberta’s burgeoning population along with its consequent increase in crime has imposed added demands on the administration of justice. The best interests of the administration of justice, however, are not always consistent with the best interest of the accused, the rule of law or the Canadian Charter of Rights and Freedoms.
Recent changes in law, practice and procedure have caused widespread trepidation among members of the criminal defence bar. Independently, members of the defence bar have expressed concerns over a host of issues, but hitherto have lacked a real voice to communicate those concerns or engage in effective dialogue.
Independently, members of the defence bar have also expressed worry over what appears to be a troubling re-alignment within the criminal justice system, wherein policy implementation by various interest groups (including the State juggernaut and the judiciary) have resulted in the abrogation of both civil rights and procedures fundamental to the protection of the innocent. To facilitate a return to principles consistent with Charter values and the rights of citizens, it is necessary for independent practitioners to unify against those whose interests are not necessarily in-line with the continued protection of civil liberties.
The primary mandate of the Criminal Defence Lawyer’s Association (C.D.L.A.) is to create solidarity within the criminal defence bar in effort to give independent practitioners, the accused, and free citizens an effective voice in the criminal justice system.
CDLA MEETING: JULY 8TH, 2008
The Criminal Defence Lawyer’s Association is presently in the developmental stage. In order to ensure the effectiveness of the association, it is imperative that the CDLA has the support of the defence bar. Though this concept has been tried and failed in the past, the present executive is committed to the successful implementation of an association capable of giving independent criminal law practitioners, the accused and citizens an effective voice in the criminal justice system.
The third general meeting of the CDLA is scheduled on Tuesday, July 8th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. From here-forward, meetings will be held at the same time and place on the second Tuesday of every month. We welcome and encourage the active participation of all members of the defence bar (including members of the Youth Criminal Defence Office and Duty Counsel).
TOPICS FOR DISCUSSION
The primary topic of discussion on July 8th, 2008 will focus on the CDLA mission statement. As the CDLA is in the incipient stages, it is important to frame a clear and concise mandate upon which the organization can represent its members.
To promote solidarity, effective communication is paramount. Presently, the CDLA is keeping a database of all issues and concerns raised by defence counsel. Given challenges launching the organization,, it is unfortunate that the CDLA cannot address each concern in a more expedited fashion. However, the ultimate objective is to address each concern in time. With the support and cooperation of the defence bar, the ability of the CDLA to address a wide range of issues in a timely manner will undoubtedly grow.
In addition to discussing the CDLA mandate, the upcoming general meeting also serves as a forum to discuss recent practice implementations which have resulted in dramatic changes to conducting business in Courtrooms 305, 306, 308 and 508. Although defence counsel have been involved in this process, there is little doubt that most counsel are oblivious to what transpires at committee meetings until the implementation is mandated in a practice note. This approach to the implementation of policy and procedure hardly allows for effective, representative dialogue in the system.
CDLA members should therefore be prepared to discuss these various practice notes. To this end, members are encouraged to contemplate remedies in law. Also, members should conceptualize a game-plan. For example, should the CDLA demand immediate representation at upcoming committee meetings? Should the CDLA demand that any practice initiatives be put to a vote of members of the defence bar prior to implementation? Should the CDLA even endorse the most recent implementations?
CASE BRIEFS
R v Megahy 2008 ABCA 207, 2008 CarswellAlta 696, May 30, 2008.
Facts: Impaired driving/0ver 08. Accused pulled over at check-stop. Four (4) minute delay in making the s. 254(2) demand because officer chose to keep the Approved Screening Device one and a half blocks away. Delay did not result from inadvertence or necessity. Acquittal at trial. Crown appeal allowed on Summary Conviction Appeal.
Held: Breach found. Acquittal entered.
Comment: Argued by Bob Batting. Although the acquittal is allowed, Martin J. clearly suggests that he considers the "automatic" exclusion of conscriptive evidence as per Stillman to be a thing of the past. Indeed, he states that the only reason he allows the appeal in this case is because s. 24(2) of the Charterwas not argued. Had it been, he would have included the evidence, and convicted. However, he is alone on this point. Both Hunt J and Brooker J agree with the finding of the breach, but make no comment on the s. 24(2) analysis.
R v Andiruchow 2008 ABPC 133, 2008 CarswellAlta 655, May 7, 2008.
Facts: Assault Police Officer. Two (2) members of Edmonton Police Service are complainants. The accused sought disclosure/production of police disciplinary records via either s. 7 of the Charter (Stinchombe) or the Common Law doctrine of Production of Third Party Records.
Held: The court reviews the conflicting law in this area. Application denied on both Stinchcombe and O'Connor lines of authority.
Comment: Argued by Tom Engel. Although the application is denied, the court is clearly sympathetic to the obvious "Catch 22" situation of trying to prove that a specific officer has a disciplinary record. From a defence perspective, the useful analysis is contained in the obiter dicta, beginning at paragraph 62. At paragraph 66, he suggests that there may be a Stinchombe right to know whether there are, or are not such disciplinary records.
_______________________________
Newsletter Written by David G. Chow (http://www.faganandchow.com/)
Case Briefs submitted by Alan Pearse
Edited: Michael Dinkel
Criminal defence practice is becoming increasingly more complex. In this jurisdiction, each practitioner faces a myriad of issues – educational, practical and economic – which have predominately been shouldered by independent lawyers operating individually within the criminal justice system. The criminal justice system is comprised of a network of stakeholders, including the accused, the defence bar, the judiciary and a host of State agencies such as the Crown and police. Ideally, the system operates to preserve the rule of the law and constitutional rights enshrined in the Charter. However, the interests of each stakeholder are unique and not always consistent with these core values.
The development of law and policy is not merely a matter of erudite legal argument and jurisprudence; it is the product of interest groups lobbying their position within the system. As a collective, each interest group has a powerful voice that, if left unchecked, has the potential to align the system in accordance with a particularized mandate. Undoubtedly, Alberta’s burgeoning population along with its consequent increase in crime has imposed added demands on the administration of justice. The best interests of the administration of justice, however, are not always consistent with the best interest of the accused, the rule of law or the Canadian Charter of Rights and Freedoms.
Recent changes in law, practice and procedure have caused widespread trepidation among members of the criminal defence bar. Independently, members of the defence bar have expressed concerns over a host of issues, but hitherto have lacked a real voice to communicate those concerns or engage in effective dialogue.
Independently, members of the defence bar have also expressed worry over what appears to be a troubling re-alignment within the criminal justice system, wherein policy implementation by various interest groups (including the State juggernaut and the judiciary) have resulted in the abrogation of both civil rights and procedures fundamental to the protection of the innocent. To facilitate a return to principles consistent with Charter values and the rights of citizens, it is necessary for independent practitioners to unify against those whose interests are not necessarily in-line with the continued protection of civil liberties.
The primary mandate of the Criminal Defence Lawyer’s Association (C.D.L.A.) is to create solidarity within the criminal defence bar in effort to give independent practitioners, the accused, and free citizens an effective voice in the criminal justice system.
CDLA MEETING: JULY 8TH, 2008
The Criminal Defence Lawyer’s Association is presently in the developmental stage. In order to ensure the effectiveness of the association, it is imperative that the CDLA has the support of the defence bar. Though this concept has been tried and failed in the past, the present executive is committed to the successful implementation of an association capable of giving independent criminal law practitioners, the accused and citizens an effective voice in the criminal justice system.
The third general meeting of the CDLA is scheduled on Tuesday, July 8th, 2008 at 12:30pm in the Barrister’s Lounge Boardroom at the Calgary Court’s Centre. From here-forward, meetings will be held at the same time and place on the second Tuesday of every month. We welcome and encourage the active participation of all members of the defence bar (including members of the Youth Criminal Defence Office and Duty Counsel).
TOPICS FOR DISCUSSION
The primary topic of discussion on July 8th, 2008 will focus on the CDLA mission statement. As the CDLA is in the incipient stages, it is important to frame a clear and concise mandate upon which the organization can represent its members.
To promote solidarity, effective communication is paramount. Presently, the CDLA is keeping a database of all issues and concerns raised by defence counsel. Given challenges launching the organization,, it is unfortunate that the CDLA cannot address each concern in a more expedited fashion. However, the ultimate objective is to address each concern in time. With the support and cooperation of the defence bar, the ability of the CDLA to address a wide range of issues in a timely manner will undoubtedly grow.
In addition to discussing the CDLA mandate, the upcoming general meeting also serves as a forum to discuss recent practice implementations which have resulted in dramatic changes to conducting business in Courtrooms 305, 306, 308 and 508. Although defence counsel have been involved in this process, there is little doubt that most counsel are oblivious to what transpires at committee meetings until the implementation is mandated in a practice note. This approach to the implementation of policy and procedure hardly allows for effective, representative dialogue in the system.
CDLA members should therefore be prepared to discuss these various practice notes. To this end, members are encouraged to contemplate remedies in law. Also, members should conceptualize a game-plan. For example, should the CDLA demand immediate representation at upcoming committee meetings? Should the CDLA demand that any practice initiatives be put to a vote of members of the defence bar prior to implementation? Should the CDLA even endorse the most recent implementations?
CASE BRIEFS
R v Megahy 2008 ABCA 207, 2008 CarswellAlta 696, May 30, 2008.
Facts: Impaired driving/0ver 08. Accused pulled over at check-stop. Four (4) minute delay in making the s. 254(2) demand because officer chose to keep the Approved Screening Device one and a half blocks away. Delay did not result from inadvertence or necessity. Acquittal at trial. Crown appeal allowed on Summary Conviction Appeal.
Held: Breach found. Acquittal entered.
Comment: Argued by Bob Batting. Although the acquittal is allowed, Martin J. clearly suggests that he considers the "automatic" exclusion of conscriptive evidence as per Stillman to be a thing of the past. Indeed, he states that the only reason he allows the appeal in this case is because s. 24(2) of the Charterwas not argued. Had it been, he would have included the evidence, and convicted. However, he is alone on this point. Both Hunt J and Brooker J agree with the finding of the breach, but make no comment on the s. 24(2) analysis.
R v Andiruchow 2008 ABPC 133, 2008 CarswellAlta 655, May 7, 2008.
Facts: Assault Police Officer. Two (2) members of Edmonton Police Service are complainants. The accused sought disclosure/production of police disciplinary records via either s. 7 of the Charter (Stinchombe) or the Common Law doctrine of Production of Third Party Records.
Held: The court reviews the conflicting law in this area. Application denied on both Stinchcombe and O'Connor lines of authority.
Comment: Argued by Tom Engel. Although the application is denied, the court is clearly sympathetic to the obvious "Catch 22" situation of trying to prove that a specific officer has a disciplinary record. From a defence perspective, the useful analysis is contained in the obiter dicta, beginning at paragraph 62. At paragraph 66, he suggests that there may be a Stinchombe right to know whether there are, or are not such disciplinary records.
_______________________________
Newsletter Written by David G. Chow (http://www.faganandchow.com/)
Case Briefs submitted by Alan Pearse
Edited: Michael Dinkel
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