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
Wednesday, August 6, 2008
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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