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
