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
