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.