Calgary Criminal Defence Lawyers Association (CDLA) Practice and Procedure Committee Update Submitted by Michael Dinkel, Chairman – April 6, 2009
Highlights:
• CDLA Meeting Reminder – Tuesday, April 7, 2009 at 12:30 p.m. in the 4th Floor Barristers Lounge
• Crown Bail Project Update
• Crown File Ownership Business Analysis Meetings and Recommendations
• Last Call for Remand Center Phone List
• Brydges List
• Two for One Remand Credit
• CDLA Meeting Reminder
The monthly meeting for the CDLA will be held on Tuesday, April 14th, 2009 at 12:30 p.m. in the Barrister’s Lounge Boardroom on the 4th Floor of the Calgary Courts Center.
• Crown Bail Project Update
As you may recall from the February 8, 2009 Practice and Procedure Committee Update, the CDLA and other stakeholders have been in discussion with the Crown Prosecutor’s Office regarding their upcoming Crown Bail Project. The general intent of the project is to have Crown Prosecutors available to conduct bail hearings at the Arrest Processing Unit on a 24 hour basis. The Crown is currently in the process of several new Prosecutors to staff the Project. The intention is to phase in the Project so that in the beginning Prosecutors may only be available during the day, then eventually through the night and finally on weekends. Legal Aid has been included in this Project in an attempt to have Duty Counsel available at any time a Crown Prosecutor would be present. The Crown intends to make Disclosure available via fax or e-mail to any Defence Counsel who would like to proceed with their client’s bail application in front of the Justice of the Peace.
I have attached a copy of the most recent information I have received from Gord Wong in relationship to this Project. I will be attending a meeting scheduled for Wednesday, April 8, 2009 for all stakeholders to discuss the approval of the Project and its immediate implementation. Please review the attachment and raise any questions you may have as soon as possible.
• Crown File Ownership Business Analysis Meetings:
Meetings on the Crown File Ownership Project took place over seven days in the month of March. A total of 92 Recommendations were made by the Committee Members. These Recommendations were presented to the Provincial Implementation Committee, which approved 89 of the Recommendations. The Final Recommendations are expected to be approved by the Provincial Implementation Committee (PIC) on April 8, 2009. I will release the final Recommendations to the Calgary Defence Bar as soon as they are available.
Anyone wanting to look at the CCM in more detail can access the following links:
For a message from Deputy Chief Judge Lefever go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Message%20from%20DCJ%20Allan%20Lefever.pdf
For an Executive Summary of the Project go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Executive%20Summary%20document.pdf
For a copy of the CCM Project Charter go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/CCM%20Project%20Charter.pdf
• Last call for Remand Center Telephone List
Concerns have been raised by both defence counsel and inmates about the availability of phonebooks in the Remand Units. The phonebooks that are available are often outdated or missing the pages that reference lawyers. In an attempt to alleviate this problem, we have created a list of defence counsel names and phone numbers that will be provided to Remand and will be updated on a semi-annual basis. The phone list has not yet been forwarded to the Remand Center yet, so if you wish to have your name on this list you should forward your contact information as soon as possible to myself, Mike Dinkel, at dinkel@platinum.ca A laminated copy of the list will be posted in each Unit at the Remand Center. To date we have received requests from 37 defence counsel to post their names at the Remand Center.
Although it is not mandatory, the CDLA would appreciate it if all lawyers whose names appear on the list would see that their $50.00 membership fee is paid in full. If you would like to be on this list and you have not yet paid this fee, please leave a cheque for $50.00 in Mike Dinkel’s Barrister’s Lounge mail slot in an envelope with your name clearly marked on it.
• Brydges Telephone List
Concerns have also been raised by the RCMP and Calgary Police Service about the efficiency of the current Brydges List, which includes the 1-800 Service. Apparently, Law Enforcement Agencies are frustrated by the low quality of advice that is being provided to accused upon arrest. As a result, they have requested that we prepare a new Brydges List for posting in all local and area Police Stations and RCMP Detachments. If you would like to be on the Brydges List, please forward a separate e-mail to me, with your telephone contact information, no later than April 17, 2009. To date I have only received nine requests to be placed on the Brydges List. Please appreciate that being on the Brydges List is very different than having your name on the Remand List. If you want to be on the Brydges List, you must be prepared to take telephone calls from individuals who have just been arrested. These calls may come at any time during the day or night. Please do not put your name on this List unless you are prepared to accept those calls.
• Two For One Remand Credit
Steve Davis, who sits on the Board of the John Howard Society, has been kind enough to provide me with the Society’s analysis paper on this issue. I have attached the paper for your review.
Submitted by,
Michael C. Dinkel
dinkel@platinum.ca
Case Briefs by Alan Pearse
R. v. Wright 2008 CarswellAlta 1044 (APC)
Facts: Argued by Steve Virk. Crown was Marta Juzwiak, before Judge Semenuk. Accused was detained for impaired/over 08. Police officer taking 7 to 10 minutes to write notes.
Ratio: Delay was not reasonable in the circumstances. Breach of 10(b) and 8. In these circumstances, Accused was not advised of right to counsel "without delay," and the demand was not made as soon as practicable. Evidence excluded.
R v Tran 2008 CarswellAlta 986 (Breach), 2008 CarswellAlta 1896 (remedy) (AQB)
Facts: Drug case. Asian accused stopped while driving to Edmonton. Traffic stop concluded, and accused told that he was "free to go." At the time the statement was made the officer's hands were resting on an open passenger side window. Officer asked accused if he could search trunk, and accused agreed. Accused believed he had to answer officer's questions because he was a police officer. Officer did not have RPG, and did not do the search for safety concerns. Accused was not advised that the officer could not search the vehicle without the accused's consent. In this case, the accused did not actively consent to the search, but merely complied. Any consent given here was not informed. No effort was made to advise the accused at his right to counsel until after the search was conducted.
Ratio: The court finds a breach of section 9, 8, 10(a), and 10(b). The evidence is excluded via 24(2).
Comment: I covered this case back in August, before the "remedy" decision was released (Dec/08). I'm not trying to beat a dead horse, but this is a VERY, VERY good example of why we should look at all "traffic stop" drug cases closely (note the use of two "very's," both in caps). Most of the problems in this case come from the officer's assumption that his search and seizure powers under the TSA can be applied to a drug case, with more or less no attempt to comply with even basic search and seizure/arrest law (i.e. R v Mann, ect).
While the SCC has granted the police a very wide discretion to prevent "the carnage on the highways," this does not extend outside of an "valid TSA purpose." The starting point for the officer's line of reasoning comes from the SCC's decisions in Wilson 1990 CarswellAlta and Ladouceur 1990 CarswellOnt 96, which more or less allow the police to stop any car for any reason, as long as they are trying to enforce some purpose under the TSA. On the section 9 analysis, the test is purely subjective. There is no requirement for objective reasonable and probable grounds (i.e. bad driving). At the time, Justice Sopinka's dissenting opinion was very critical of this line of reasoning. Although his comments are almost 19 years old, they are prescient of the state of the law today. At paragraph 11 of Ladouceur he held:
By contrast, the roving random stop would permit any individual officer to stop any vehicle, at any time, at any place. The decision may be based on any whim. Individual officers will have different reasons. Some may tend to stop younger drivers, others older cars, and so on. Indeed, as pointed out by Tarnopolsky J.A., racial considerations may be a factor too. My colleague states that in such circumstances a Charter violation may be made out. If, however, no reason need be given or is necessary, how will we ever know? The officer need only say, "I stopped the vehicle because I have the right to stop it for no reason. I am seeking unlicensed drivers." If there are bound to be instances where admittedly Charter violations which cannot be justified will occur, can we overlook these and approve a practice even if in its general application Charter breaches can be justified? Moreover, the unlimited power has the potential of being much more intrusive and occasioning a greater invasion of privacy. Any perfectly law-abiding citizen travelling late at night on a lonely country road must be prepared to have a police car approach, perhaps, from the rear, siren blaring, lights flashing, and must then and there come to a stop to prove his or her legitimacy on the roadway. How many innocent people will be stopped to catch one unlicensed driver?
[emphasis is mine]
Of course, the officer in question may also be routinely stopping Caucasian drivers for no reason and then searching their trunks for drugs (again, for no reason), but Sopinka's point is well taken: With the current state of the law, we'll never really know.
Thursday, April 9, 2009
Friday, March 13, 2009
CDLA Newsletter - March 13th, 2009 - Issue #8
Calgary Criminal Defence Lawyers Association (CDLA) Practice and Procedure Committee Update Submitted by Michael Dinkel, Chairman – March 8, 2009
Highlights:
· Remand Center Visit
· The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
· CDLA Meeting Reminder – Next Meeting Tuesday, March 10th at 12:30 p.m. in the Barrister’s Lounge
· Remand Center Visit and CCTV Issues
On March 4th Al Fay and myself, Mike Dinkel, attended at the Calgary Remand Center to meet with the Deputy Director of Operations Kim Canning, the Assistant Deputy Director of Operations Mark Baecker, Paddy Barker of the Remand Center, Basem Hage from Court Services and Assistant Chief Judge (ACJ) Wilkins. The intent of the meeting was to discuss a number of concerns that had been raised by defence counsel with respect to issues such as accessing clients via CCTV and by telephone. The following is a list of the issues discussed and the solutions that were agreed upon:
1. CCTV Hours:
There has been a great deal of discussion amongst defence counsel as to the actual times that clients can be accessed via CCTV. We were able to confirm that the start time is 8:00 a.m. and the finish time is 8:00 p.m. Monday to Friday. Remand Staff will be present from 8:00 a.m. to 4:00 p.m. After 4:00 p.m., defence counsel should contact the Shift Manager at 403-695-2116 or 403-695-2117 to make arrangements to meet with a client over CCTV. In addition, the Shift Manager should be contacted on those occasions where Remand Staff are not present prior to 4:00 p.m.
2. CCTV Interviews of Clients Not Appearing in Court that Day:
Due to the overcrowded CCTV holding facilities at Remand, there will be no access to clients not scheduled for Court until after 1:00 p.m. We continue to negotiate with the Deputy Director and the Assistant Deputy Director for access to our clients between 11:00 a.m. and 1:00 p.m. on those occasions where Staff is available and the number of inmates scheduled for Court that day has decreased sufficiently so as not to create a safety concern. This would be at the discretion of the Remand Staff. We will update you on any progress on this issue when further information becomes available.
3. Inmate Access to Defence Counsel Contact Information:
Concerns have been raised by both defence counsel and inmates about the availability of phonebooks in the Remand Units. Often the phonebooks that are available are either outdated or they are missing the pages that reference lawyers. In an attempt to alleviate this problem, we intend to create a list of defence counsel names and phone numbers that will be provided to Remand and will be updated on a semi-annual basis. Any defence counsel who wish to have their names on this list should forward their contact information to myself, Mike Dinkel, at dinkel@platinum.ca A laminated copy of the list will be posted in each Unit at the Remand Center. The first list will be forwarded to the Remand Center no later than March 31st.
4. Inmate Requests to Call Counsel:
For the benefit of counsel it should be noted that specific “Zone Times” are currently in place for inmates to contact counsel. Requests to contact counsel outside of those Zone Times are not typically granted.
5. Messages for Remand Clients:
The current system for contacting Remand clients by phone is to leave a message with the Front Desk Commissionaire asking that the inmate contact counsel. This approach rarely results in a return phone call from the client. In an attempt to solve this problem the Deputy Director has requested that all defence counsel make their requests for return phone calls directly to the Shift Manager. To request that a client call you, please contact the Shift Manager at 403-695-2116 or 403-695-2117. This cuts out the Commissionaire at the Front Desk and should increase the likelihood of a return call. Remand Staff have assured us that every effort will be made by the Shift Manager to see that all messages are passed on in a timely manner.
6. In Person Interview Times
For those who attend the Remand Center in person to interview their clients, we can confirm the following information:
- Interviews with clients can take place seven days a week from 7:00 a.m. to 11:00 p.m.
The suggested “best times” for interviews are as follows:
- Monday to Friday: 6:00 p.m. to 11:00 p.m.
- Weekends: 1:00 p.m. to 11:00 p.m.
It should be noted that during inmate meals interview access will be limited. Meals are served at the following times:
- Monday to Friday: 11:00 a.m. to 1:00 p.m. and 4:00 p.m. to 6:00 p.m.
- Weekends: 10:00 a.m. to 12:00 p.m. and 4:00 p.m. to 6:00 p.m.
In addition, the inmates are involved in a “Clothing Exchange” each Saturday and Sunday morning, which will also limit access.
7. Sentence Calculation:
When defence counsel need to obtain information regarding CSO or Time in Custody calculations, it is best to have your client fill out an “Inmate Request Form” and submit that to Sentence and Administration who will provide a response in a timely fashion. Please do not leave this until the last day before your client’s court appearance.
8. Seeing Clients After CCTV Court Appearances
If defence counsel require a meeting with their client after a CCTV appearance, this can be arranged by simply making the request of the Remand Staff at the end of the court appearance, while you are still in front of the judge. ACJ Wilkins has advised that the Judges will be directed to approve of that process; an Order from the Presiding Judge is not necessary. It should be noted that all post-court interviews will be conducted with the client being placed first into a cell until counsel is present and then being placed into a CCTV interview room. It is requested that whenever defence counsel are making this request that they return to the Barrister’s Lounge in a timely fashion to interview their client. Concerns have been raised by Remand Staff that inmates have at times been left to wait for hours before being seen by their lawyer. This creates problems for the Remand Staff as it contributes to the overcrowding in the tanks that hold the CCTV inmates. Please make every effort to meet with your client within 15 minutes of your court appearance. Failure to do so may result in your client being returned to their cell and no longer being accessible until after 1:00 p.m. that day.
9. Request by Counsel to Have Their Client Remain at The Calgary Remand Center:
Finally, in situations where defence counsel require their client to be returned to Remand prior to an in-custody trial, a fax request can be made to the Director of Operations at 403-695-2071. However, due to overcrowding at Remand, it is recommended that defence counsel only make this request where absolutely necessary. All decisions will be at the discretion of the Director.
It is the sincere hope of the Practice and Procedure that the information provided above will help to inform younger counsel and result in greater certainty for all counsel when dealing with issues related to the Calgary Remand Center. Should you have any questions or concerns regarding these or other issues related to the Remand Center, please contact your Practice and Procedure Committee Members Al Fay, Mitch Stephensen and Mike Dinkel.
· The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
1. CCM Business Analysis Meetings and Recommendations:
One of the key starting points for an undertaking as large as the CCM Project is a Business Analysis Mapping Session. The approach is to first map each and every process that occurs from the time of an individual’s arrest to the conclusion of the case and the termination of all paperwork. Once the mapping has been completed all interested parties meet to discuss how the entire process can be improved. The Business Analysis Meetings for the CCM took place over the course of seven days in Edmonton and included representatives from the Hearing Office, the Justices of the Peace, the Clerks, Court Services, the Crown and the Defence Bar. When I was available, I attended on behalf of the Defence Bar via teleconference call from Calgary. Over seven days, the Analysis Team reviewed approximately 1400 different business processes and made 66 recommendations, 48 of which were short term and 18 of which were long term. These recommendations were presented to the members of the Provincial Implementation Committee during a half day meeting which took place on March 3, 2009. A number of the recommendations were accepted immediately by PIC and others that are more long term will be developed over time.
The general themes of these recommendations were as follows (as per Project Coordinator Jessica Nedohin):
· Standardization of business practices between Edmonton and Calgary. This includes the use of forms and reports to minimize manual efforts and increase consistency.
o Benefits: interchangeability of resources and similar work efforts
· Docket Court times and resources allocated to meaningful events requiring appropriate staffing. JP counters and the length of adjournments as ways to achieve this.
o Benefits: This will increase access to justice for stakeholders. Makes one more courtroom available in each Calgary and Edmonton to deal with meaningful acts. Reduces lead times.
· Assignment Courts to determine which matters are going ahead.
· Remote booking of all matters to be confirmed by the Case Management Office.
o Shared benefit of Assignment Courts and remote bookings: Reducing manual processes will free up resources (7 full time employees provincially), which will increase productivity, access to justice, accuracy and decreasing duplication of processes and handling of files
· Eliminating duplicate entry by expanding the use of software, reducing/eliminating downtime, and increasing the use of interfaces. Use of technology such as websites to host
o Benefits: Freed resources from entering documentation in multiple locations. Eliminates delays associated with resolving incomplete documentation from agencies.
· All court files to be in electronic form. Electronic documentation to be initiated at the beginning of the process and to continue throughout.
o Benefits: Freed resources (4 full time employees provincially) will be redeployed to JP counter and courtrooms, increases of service levels and allows better access to justice.
The recommendations are intended to increase the efficiency of the justice system. From a defence perspective many of the administrative recommendations do not relate directly to us (such as the move to electronic documentation), but they will make the general operation of the justice system more efficient. Defence counsel will be more interested in recommendations that will address their own day to day functioning such as the advent of the JP Counter for first appearances. The intent is to allow counsel to attend a first appearance JP Counter between 9:00 a.m. and 2:00 p.m. to adjourn matters or set dates. This will reduce time spent in docket courts and give counsel more freedom as to when to appear at the JP Counter. Another way to reduce time spent in docket courts will be the use of remote booking wherein Crown and defence can book trial dates via their PDA’s or office computers. There has also been discussion about trying to arrange remote appearances by defence counsel at circuit courts. This would eliminate the need to hire agents or actually have to travel to out of town courts for brief appearances. Two of the more controversial recommendations are the Assignment Courts (these are clearing house courtrooms where it is first determined if a case is ready to go ahead and, if it is, the case is then shipped off to a courtroom and a waiting judge) and the suggestion that all bail hearings be heard in front of Justices of the Peace. As your defence bar representative, I have expressed concern over both of these recommendations and advised the Business Analysis Team that we will continue to press for alternatives to the Assignment Courts and access to bail hearings in front of Provincial Court Judges.
As soon as I have approval to release the final set of recommendations, they will be forwarded to all CDLA members.
2. March 25th Defence Bar Forum in the Barrister’s Lounge:
On March 25, 2009 at 12:30 p.m. there will be an Open Forum on the Court Case Management Project for all members of the Calgary Defence Bar. This meeting will serve to update Calgary defence counsel on the progress of the Court Case Management Project and allow for discussion of the recommendations that have come out of the Business Analysis Mapping Meetings. Deputy Chief Judge Lefever and Assistant Deputy Minister Greg Lepp, Q.C. will be present. It is expected that a presentation will be made and then the panel will be open to questions from the floor. We hope to serve a light lunch, so in order to determine the size of our food order, please RSVP to Mike Dinkel at dinkel@platinum.ca to confirm your attendance. We look forward to a large turnout for this meeting.
3. Court Case Management Newsletter for March:
The next issue should be out by mid-March and will be forwarded to all members as soon as it is available.
4. Crown File Ownership Business Analysis Meetings:
As stated in my last update, the intention with this portion of the CCM Project is for a single Crown Prosecutor to maintain conduct of a file from beginning to end. The Business Analysis Meetings for the Crown File Ownership Project will take place in Calgary from March 19th to March 27th from 8:30 a.m. to 4:00 p.m. This process will be similar to that employed by the Business Analysis Mapping Team, but will only relate to the Crown File Ownership Project. Many of the same stakeholders that were at the Edmonton meetings will be in attendance at the Calgary meetings. I have advised the Project Team that I will attempt to make myself available for as much of the process as possible, subject to my court commitments. Should any other member of the Calgary Defence Bar be available to attend these meetings and actually be interested in doing so, please contact me as soon as possible. The Project Managers have requested that the same person attend for all seven days, so as to create a sense of continuity. In addition, they are seeking an individual who is senior enough to comment on all of the day to day court procedures that affect defence counsel. At this point in time, there is no compensation available for the individual who attends.
5. Anyone wanting to look at the CCM in more detail can access the following links:
For a message from Deputy Chief Judge Lefever go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Message%20from%20DCJ%20Allan%20Lefever.pdf
For an Executive Summary of the Project go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Executive%20Summary%20document.pdf
For a copy of the CCM Project Charter go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/CCM%20Project%20Charter.pdf
· CDLA Meeting Reminder:
The next meeting of the CDLA will be on Tuesday, March 10th. Members are reminded that meetings are held the second Tuesday of each month at 12:30 p.m. in the Conference Room in the Barrister’s Lounge on the 4th Floor of the Courthouse.
· Final Remarks
Your Practice and Procedure Committee continues to devote their time and energy to bringing about positive change to practice in Provincial Court. We appreciate the feedback we have been receiving from all members of the CDLA. In a group of our size it is difficult for all of us to agree on each and every issue. It is our ability to respect each person’s point of view that allows us to have productive discussions at our meetings and in the hallways of the Courthouse. Please feel free to voice those opinions to your Committee Members on an ongoing basis and we will do our best to represent the interests of all Defence Counsel.
Respectfully submitted by,
Michael C. Dinkel
dinkel@platinum.ca
Highlights:
· Remand Center Visit
· The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
· CDLA Meeting Reminder – Next Meeting Tuesday, March 10th at 12:30 p.m. in the Barrister’s Lounge
· Remand Center Visit and CCTV Issues
On March 4th Al Fay and myself, Mike Dinkel, attended at the Calgary Remand Center to meet with the Deputy Director of Operations Kim Canning, the Assistant Deputy Director of Operations Mark Baecker, Paddy Barker of the Remand Center, Basem Hage from Court Services and Assistant Chief Judge (ACJ) Wilkins. The intent of the meeting was to discuss a number of concerns that had been raised by defence counsel with respect to issues such as accessing clients via CCTV and by telephone. The following is a list of the issues discussed and the solutions that were agreed upon:
1. CCTV Hours:
There has been a great deal of discussion amongst defence counsel as to the actual times that clients can be accessed via CCTV. We were able to confirm that the start time is 8:00 a.m. and the finish time is 8:00 p.m. Monday to Friday. Remand Staff will be present from 8:00 a.m. to 4:00 p.m. After 4:00 p.m., defence counsel should contact the Shift Manager at 403-695-2116 or 403-695-2117 to make arrangements to meet with a client over CCTV. In addition, the Shift Manager should be contacted on those occasions where Remand Staff are not present prior to 4:00 p.m.
2. CCTV Interviews of Clients Not Appearing in Court that Day:
Due to the overcrowded CCTV holding facilities at Remand, there will be no access to clients not scheduled for Court until after 1:00 p.m. We continue to negotiate with the Deputy Director and the Assistant Deputy Director for access to our clients between 11:00 a.m. and 1:00 p.m. on those occasions where Staff is available and the number of inmates scheduled for Court that day has decreased sufficiently so as not to create a safety concern. This would be at the discretion of the Remand Staff. We will update you on any progress on this issue when further information becomes available.
3. Inmate Access to Defence Counsel Contact Information:
Concerns have been raised by both defence counsel and inmates about the availability of phonebooks in the Remand Units. Often the phonebooks that are available are either outdated or they are missing the pages that reference lawyers. In an attempt to alleviate this problem, we intend to create a list of defence counsel names and phone numbers that will be provided to Remand and will be updated on a semi-annual basis. Any defence counsel who wish to have their names on this list should forward their contact information to myself, Mike Dinkel, at dinkel@platinum.ca A laminated copy of the list will be posted in each Unit at the Remand Center. The first list will be forwarded to the Remand Center no later than March 31st.
4. Inmate Requests to Call Counsel:
For the benefit of counsel it should be noted that specific “Zone Times” are currently in place for inmates to contact counsel. Requests to contact counsel outside of those Zone Times are not typically granted.
5. Messages for Remand Clients:
The current system for contacting Remand clients by phone is to leave a message with the Front Desk Commissionaire asking that the inmate contact counsel. This approach rarely results in a return phone call from the client. In an attempt to solve this problem the Deputy Director has requested that all defence counsel make their requests for return phone calls directly to the Shift Manager. To request that a client call you, please contact the Shift Manager at 403-695-2116 or 403-695-2117. This cuts out the Commissionaire at the Front Desk and should increase the likelihood of a return call. Remand Staff have assured us that every effort will be made by the Shift Manager to see that all messages are passed on in a timely manner.
6. In Person Interview Times
For those who attend the Remand Center in person to interview their clients, we can confirm the following information:
- Interviews with clients can take place seven days a week from 7:00 a.m. to 11:00 p.m.
The suggested “best times” for interviews are as follows:
- Monday to Friday: 6:00 p.m. to 11:00 p.m.
- Weekends: 1:00 p.m. to 11:00 p.m.
It should be noted that during inmate meals interview access will be limited. Meals are served at the following times:
- Monday to Friday: 11:00 a.m. to 1:00 p.m. and 4:00 p.m. to 6:00 p.m.
- Weekends: 10:00 a.m. to 12:00 p.m. and 4:00 p.m. to 6:00 p.m.
In addition, the inmates are involved in a “Clothing Exchange” each Saturday and Sunday morning, which will also limit access.
7. Sentence Calculation:
When defence counsel need to obtain information regarding CSO or Time in Custody calculations, it is best to have your client fill out an “Inmate Request Form” and submit that to Sentence and Administration who will provide a response in a timely fashion. Please do not leave this until the last day before your client’s court appearance.
8. Seeing Clients After CCTV Court Appearances
If defence counsel require a meeting with their client after a CCTV appearance, this can be arranged by simply making the request of the Remand Staff at the end of the court appearance, while you are still in front of the judge. ACJ Wilkins has advised that the Judges will be directed to approve of that process; an Order from the Presiding Judge is not necessary. It should be noted that all post-court interviews will be conducted with the client being placed first into a cell until counsel is present and then being placed into a CCTV interview room. It is requested that whenever defence counsel are making this request that they return to the Barrister’s Lounge in a timely fashion to interview their client. Concerns have been raised by Remand Staff that inmates have at times been left to wait for hours before being seen by their lawyer. This creates problems for the Remand Staff as it contributes to the overcrowding in the tanks that hold the CCTV inmates. Please make every effort to meet with your client within 15 minutes of your court appearance. Failure to do so may result in your client being returned to their cell and no longer being accessible until after 1:00 p.m. that day.
9. Request by Counsel to Have Their Client Remain at The Calgary Remand Center:
Finally, in situations where defence counsel require their client to be returned to Remand prior to an in-custody trial, a fax request can be made to the Director of Operations at 403-695-2071. However, due to overcrowding at Remand, it is recommended that defence counsel only make this request where absolutely necessary. All decisions will be at the discretion of the Director.
It is the sincere hope of the Practice and Procedure that the information provided above will help to inform younger counsel and result in greater certainty for all counsel when dealing with issues related to the Calgary Remand Center. Should you have any questions or concerns regarding these or other issues related to the Remand Center, please contact your Practice and Procedure Committee Members Al Fay, Mitch Stephensen and Mike Dinkel.
· The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
1. CCM Business Analysis Meetings and Recommendations:
One of the key starting points for an undertaking as large as the CCM Project is a Business Analysis Mapping Session. The approach is to first map each and every process that occurs from the time of an individual’s arrest to the conclusion of the case and the termination of all paperwork. Once the mapping has been completed all interested parties meet to discuss how the entire process can be improved. The Business Analysis Meetings for the CCM took place over the course of seven days in Edmonton and included representatives from the Hearing Office, the Justices of the Peace, the Clerks, Court Services, the Crown and the Defence Bar. When I was available, I attended on behalf of the Defence Bar via teleconference call from Calgary. Over seven days, the Analysis Team reviewed approximately 1400 different business processes and made 66 recommendations, 48 of which were short term and 18 of which were long term. These recommendations were presented to the members of the Provincial Implementation Committee during a half day meeting which took place on March 3, 2009. A number of the recommendations were accepted immediately by PIC and others that are more long term will be developed over time.
The general themes of these recommendations were as follows (as per Project Coordinator Jessica Nedohin):
· Standardization of business practices between Edmonton and Calgary. This includes the use of forms and reports to minimize manual efforts and increase consistency.
o Benefits: interchangeability of resources and similar work efforts
· Docket Court times and resources allocated to meaningful events requiring appropriate staffing. JP counters and the length of adjournments as ways to achieve this.
o Benefits: This will increase access to justice for stakeholders. Makes one more courtroom available in each Calgary and Edmonton to deal with meaningful acts. Reduces lead times.
· Assignment Courts to determine which matters are going ahead.
· Remote booking of all matters to be confirmed by the Case Management Office.
o Shared benefit of Assignment Courts and remote bookings: Reducing manual processes will free up resources (7 full time employees provincially), which will increase productivity, access to justice, accuracy and decreasing duplication of processes and handling of files
· Eliminating duplicate entry by expanding the use of software, reducing/eliminating downtime, and increasing the use of interfaces. Use of technology such as websites to host
o Benefits: Freed resources from entering documentation in multiple locations. Eliminates delays associated with resolving incomplete documentation from agencies.
· All court files to be in electronic form. Electronic documentation to be initiated at the beginning of the process and to continue throughout.
o Benefits: Freed resources (4 full time employees provincially) will be redeployed to JP counter and courtrooms, increases of service levels and allows better access to justice.
The recommendations are intended to increase the efficiency of the justice system. From a defence perspective many of the administrative recommendations do not relate directly to us (such as the move to electronic documentation), but they will make the general operation of the justice system more efficient. Defence counsel will be more interested in recommendations that will address their own day to day functioning such as the advent of the JP Counter for first appearances. The intent is to allow counsel to attend a first appearance JP Counter between 9:00 a.m. and 2:00 p.m. to adjourn matters or set dates. This will reduce time spent in docket courts and give counsel more freedom as to when to appear at the JP Counter. Another way to reduce time spent in docket courts will be the use of remote booking wherein Crown and defence can book trial dates via their PDA’s or office computers. There has also been discussion about trying to arrange remote appearances by defence counsel at circuit courts. This would eliminate the need to hire agents or actually have to travel to out of town courts for brief appearances. Two of the more controversial recommendations are the Assignment Courts (these are clearing house courtrooms where it is first determined if a case is ready to go ahead and, if it is, the case is then shipped off to a courtroom and a waiting judge) and the suggestion that all bail hearings be heard in front of Justices of the Peace. As your defence bar representative, I have expressed concern over both of these recommendations and advised the Business Analysis Team that we will continue to press for alternatives to the Assignment Courts and access to bail hearings in front of Provincial Court Judges.
As soon as I have approval to release the final set of recommendations, they will be forwarded to all CDLA members.
2. March 25th Defence Bar Forum in the Barrister’s Lounge:
On March 25, 2009 at 12:30 p.m. there will be an Open Forum on the Court Case Management Project for all members of the Calgary Defence Bar. This meeting will serve to update Calgary defence counsel on the progress of the Court Case Management Project and allow for discussion of the recommendations that have come out of the Business Analysis Mapping Meetings. Deputy Chief Judge Lefever and Assistant Deputy Minister Greg Lepp, Q.C. will be present. It is expected that a presentation will be made and then the panel will be open to questions from the floor. We hope to serve a light lunch, so in order to determine the size of our food order, please RSVP to Mike Dinkel at dinkel@platinum.ca to confirm your attendance. We look forward to a large turnout for this meeting.
3. Court Case Management Newsletter for March:
The next issue should be out by mid-March and will be forwarded to all members as soon as it is available.
4. Crown File Ownership Business Analysis Meetings:
As stated in my last update, the intention with this portion of the CCM Project is for a single Crown Prosecutor to maintain conduct of a file from beginning to end. The Business Analysis Meetings for the Crown File Ownership Project will take place in Calgary from March 19th to March 27th from 8:30 a.m. to 4:00 p.m. This process will be similar to that employed by the Business Analysis Mapping Team, but will only relate to the Crown File Ownership Project. Many of the same stakeholders that were at the Edmonton meetings will be in attendance at the Calgary meetings. I have advised the Project Team that I will attempt to make myself available for as much of the process as possible, subject to my court commitments. Should any other member of the Calgary Defence Bar be available to attend these meetings and actually be interested in doing so, please contact me as soon as possible. The Project Managers have requested that the same person attend for all seven days, so as to create a sense of continuity. In addition, they are seeking an individual who is senior enough to comment on all of the day to day court procedures that affect defence counsel. At this point in time, there is no compensation available for the individual who attends.
5. Anyone wanting to look at the CCM in more detail can access the following links:
For a message from Deputy Chief Judge Lefever go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Message%20from%20DCJ%20Allan%20Lefever.pdf
For an Executive Summary of the Project go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Executive%20Summary%20document.pdf
For a copy of the CCM Project Charter go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/CCM%20Project%20Charter.pdf
· CDLA Meeting Reminder:
The next meeting of the CDLA will be on Tuesday, March 10th. Members are reminded that meetings are held the second Tuesday of each month at 12:30 p.m. in the Conference Room in the Barrister’s Lounge on the 4th Floor of the Courthouse.
· Final Remarks
Your Practice and Procedure Committee continues to devote their time and energy to bringing about positive change to practice in Provincial Court. We appreciate the feedback we have been receiving from all members of the CDLA. In a group of our size it is difficult for all of us to agree on each and every issue. It is our ability to respect each person’s point of view that allows us to have productive discussions at our meetings and in the hallways of the Courthouse. Please feel free to voice those opinions to your Committee Members on an ongoing basis and we will do our best to represent the interests of all Defence Counsel.
Respectfully submitted by,
Michael C. Dinkel
dinkel@platinum.ca
Tuesday, February 10, 2009
CDLA Newsletter - February 9th, 2009 - Issue #7
Calgary Criminal Defence Lawyers Association (CDLA) Practice and Procedure Committee Update Submitted by Michael Dinkel, Chairman – February 8, 2009
Highlights:
· Courtroom 508 Update
· Crown Bail Project
· The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
· Remand Visit and CCTV Issues
· Docket and Disposition Court Opening Times
Courtroom 508 Update
The CDLA Practice and Procedure Committee continues to make efforts to bring about fair and effective change to the policy of having bail hearings on Monday, Wednesday and Friday in Courtroom 508 in Provincial Court in Calgary. On Wednesday February 4, 2009, the Committee consisting of CDLA members Allan Fay, Mitch Stephensen and Mike Dinkel met with Assistant Chief Judge (ACJ) Wilkins, Assistant Chief Crown Prosecutor Sheena Cunningham and Basem Hage from Court Services. It is clear that a number of our members are eager to see a return to the previous approach of having bail applications five days a week in Courtroom 508. The Committee advised ACJ Wilkins of this concern and all parties have attempted to work towards a resolution that will be agreeable to all parties.
During a previous Committee Update, CDLA members were advised that it would be possible to approach the Crown on a case by case basis and ask that their client’s bail be heard on a Tuesday or Thursday, if there were urgent or emergency circumstances. We were advised at the February 4th meeting that only two such requests have been made of the Crown since the inception of this practice in November 2008. In addition, we were advised that there are an average of only five Scheduled Show Cause per week in Courtroom 508. It was suggested that these statistics show that there are very few actual Scheduled Show Causes in 508 and that the CDLA members are either not taking advantage of the exception that exists for Tuesday and Thursday Bail Hearings or simply find no need for it.
Some members have expressed concern about the procedure for getting their client into 508 on Tuesday or Thursday, when the client is arrested on a Monday or Wednesday. In an attempt to improve the efficacy of the current procedure, it has been agreed that a client may simply ask that their matter be adjourned from Monday (in front of a Justice of the Peace) to Tuesday morning in front of a Provincial Court Judge. In addition, if Counsel has been contacted by the client, Counsel may simply contact the Justice of the Peace and advise them of the request to have the matter of bail heard the next day. It should be noted that requests from Counsel and the client to go to a Tuesday or Thursday will not be automatic and will be subject to the discretion of the Justice of the Peace. Court Services have advised that the Justices of the Peace will be contacted and advised that, in circumstances where urgent or emergency circumstances are found to exist, then the client should be allowed to adjourn their bail application to a Tuesday or Thursday.
This change to the pre-existing approach is intended to expand the ability of Defence Counsel and the accused to have Bail Hearings heard in courtroom 508 on an expeditious basis. It was also made abundantly clear to the Committee that the Judiciary would make every effort to address any concerns arising out of this policy. Should Defence Counsel find a circumstance where this policy does not work in a specific circumstance, the Committee will be glad to approach the Judiciary and try to find a solution that is agreeable to all. Furthermore, ACJ Wilkins advised that it is the view of the Judiciary that the previously mentioned statistics regarding Bail in 508 confirm that the current approach for bail in 508 is working and, as such, the Judiciary does not intend to revert to the former procedure of having Docket Court fivIn conclusion, the Committee feels that further progress on this issue has been made and that any problems that Defence Counsel may encounter can be addressed on a case by case basis. This must be seen as a work in progress and we look forward to any input the members may have on this issue.
· Crown Bail Project
The Practice and Procedure Committee also met with former Chief Crown Prosecutor Gord Wong on Friday, February 6, 2008 to discuss the upcoming Crown Bail Project. The general intent of the project is to have Crown Prosecutors available to conduct bail hearings at the Arrest Processing Unit on a 24 hour basis. The Crown is currently in the process of trying to hire new seven new Prosecutors to staff the Project. The intention is to phase in the Project so that in the beginning Prosecutors may only be available during the day, then eventually nights and finally weekends. Legal Aid has been included in this Project in an attempt to have Duty Counsel available at any time a Crown Prosecutor would be present. The Crown intends to make Disclosure available via fax or e-mail to any Defence Counsel who would like to proceed with their client’s bail application in front of the Justice of the Peace.
I have attached a copy of the information I have received from Gord Wong in relationship to this Project. I expect an updated version of this information to be released next week and I will forward it to the membership at that time. Mr. Wong will also be making a presentation on this topic on Friday, February 13th to a limited group from the Judiciary, Crown, Justices of the Peace, Court Services and Defence Counsel. Should anyone have any questions or concerns that they would like raised, please advise one of the members of the Committee who will be attending the meeting.
· The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
As you may recall, the Court Case Management Project (CCM) found its beginnings in the Crown File Ownership Project and then the other stakeholders were included when it was discovered the degree to which the Project would impact on day to day Court management. The CCM Project continues to move forward, albeit at a very slow pace. I continue to attend bi-weekly meetings of the Provincial Implementation Committee (PIC). Most of the meetings to date have revolved around planning and organization and there has been limited discussion regarding any matters directly affecting Defence Counsel. However, a number of workshops and demonstrations have taken place that have provided some hope for positive change in the future.
On February 4, 2009 a meeting was held in both Calgary and Edmonton via video conference where approximately 75 individuals from the various stakeholder groups were invited to attend. Presentations were made by various groups including the CCM Project Consultants, the Judiciary, Alberta Justice and by myself on behalf of Defence Counsel. In speaking to the group, I advised that a number of positive items had arisen from discussions to date. They include the following:
· Crown File Ownership
The intention with this portion of the CCM Project is for Crown Prosecutor’s to maintain conduct of a file from beginning to end. This will have certain advantages and disadvantages. On the positive side, it will hopefully allow Defence Counsel to access a Crown Prosecutor at an early stage in the proceedings to address issues such as Bail and Disclosure. As the matter proceeds, both the Court and Defence Counsel will know exactly which Crown will be responsible for the conduct of a file. Concern has been expressed that this would require that each Crown attend every Court appearance. The intention is to have the Assigned Crown instruct the Docket Court Crown how to proceed with each file. In situations where a case will simply be adjourned by consent, the plan is that neither the Assigned Crown nor the Defence Counsel will have to attend as the appearance in Court will be considered administrative in nature. The accused may also be excused from attending. The benefit to Defence Counsel is that less time will be wasted dealing with administrative matters such as booking Trial Dates and more time will be spent on substantive matters such as Bail Hearings and Trials.
· Remote Booking and Court Scheduling (JIMS)
As mentioned above, the hope is to use technology (including PDA’s and specifically Blackberry devices for the Crown) to remotely book Bail Hearings and Trial Dates. This can be done by Crown and Defence agreeing to a date in advance and remotely booking that date rather than attending at the Trial Coordinator’s Office, which we all know is a time consuming process. The Court Scheduling portion of the CCM Project is referred to as Justice Informations Management System or JIMS.
· Electronic Disclosure
Efforts are being made to find a safe and secure method to allow Defence Counsel access to Disclosure electronically. This would hopefully allow Defence Counsel to access Disclosure much earlier in the process.
· PRISM
PRISM is the software that is currently being employed by the Manitoba Crown Prosecutor’s Office. It requires Crown Prosecutor’s to make computer entries on each file and update the status of the file on an ongoing basis. I was present at a demonstration of the software and found it to be quite effective at organizing and logging the progress on a file. To my understanding, Defence Counsel has access to certain portions of the Crown file under PRISM and it is hoped that a similar arrangement would be entered into with Alberta Justice. It has not yet been determined if the PRISM software will be used by Alberta Justice. There has been some discussion that a new platform may created specifically for Alberta.
· Access to JOIN
Currently only Crown and Court Services have access to JOIN. There is some suggestion that JOIN may eventually be replaced by a more current system. The intention through the CCM Project is to allow Defence Counsel to access to JOIN or its successor, thereby allowing Defence Counsel to confirm court appearances and other information related to their clients.
These are just some of the potential benefits that may develop from the CCM Project. Initial implementation may occur as early as June 2008, with full implementation by February 2010. This Project will affect all Defence Counsel and I think it is important that we remain at the table and push for positive and tangible change on behalf of Defence Counsel. We look forward to any feedback Counsel may have on the Project. A Newsletter is currently being developed and once it is up and running, I will be forwarding it to all Defence Counsel.
Anyone wanting to look at the CCM in more detail can access the following links:
For a message from Deputy Chief Judge Lefever go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Message%20from%20DCJ%20Allan%20Lefever.pdf
For an Executive Summary of the Project go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Executive%20Summary%20document.pdf
For a copy of the CCM Project Charter go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/CCM%20Project%20Charter.pdf
· Remand Centre Visit Re: CCTV Access
Numerous attempts have been made to get all interested parties together for a meeting at the Remand Centre to review the recently remodeled area for CCTV and inmate holding. A new date has now been set for March 4, 2009 at which time ACJ Wilkins, Basem Hage from Court Services and The Practice and Procedure Committee will meet at The Remand Centre to tour the facilities and address our concerns with the Remand staff. Defence Counsel have expressed concern over access to clients via CCTV. Some Defence Counsel have found that CCTV personnel are not available until 4:00 p.m. as previously agreed and other Counsel are concerned over the fact that we cannot access our clients that are not appearing in Court on that day. The current arrangement is that Defence Counsel can request to see a client, not scheduled for court, any time after 1:00 p.m. This makes it difficult for Counsel as they are often only available in the morning. The Committee is endeavoring to have that time pushed up to as early as 11:00 a.m.
· Docket Court Opening Times
In the course of our February 4, 2009 meeting with ACJ Wilkins and Court Services it was confirmed that all Docket Courts would open 30 minutes before Court is scheduled to start. This will allow Defence Counsel to meet with Crown prior to Court and discuss matters related to bail or guilty pleas. Courtroom 306 has been a specific concern in that the Courtroom doors were often not open until after 9:15 a.m. and Crown would sometimes not arrive until nearly 9:30 a.m. The doors will now open at 9:00 a.m. and Crown has been instructed by Chief Crown Prosecutor Lloyd Robertson to attend at that time. This should allow some guilty pleas to take place right away at 9:30 a.m. The Committee would like to thank the Chief Crown for taking the time to meet and discuss this issue and for taking action on it on an immediate basis. We hope to arrange to meet with the Chief Crown on a regular basis to discuss our day to day concerns, so please advise your Committee Members should you have a specific issue that needs to be addressed.
The Docket and Disposition Courts will open at the following times:
305 – 8:30 a.m.
306 – 9:00 a.m.
505 – 8:30 a.m.
508 – 8:30 a.m.
· Final Remarks
Your Practice and Procedure Committee continues to devote their time and energy to bringing about positive change to practice in Provincial Court. We appreciate the feedback we have been receiving from all members of the CDLA. In a group of our size it is difficult for all of us to agree on each and every issue. It is our ability to respect each person’s point of view that allows us to have productive discussions at our meetings and in the hallways of the Courthouse. Please feel free to voice those opinions to your Committee Members on an ongoing basis and we will do our best to represent the interests of all Defence Counsel.
Respectfully submitted by,
Michael C. Dinkel
_____________________________
CASES by Alan Pearse
R v Tobin 2008 CarswellAlta 1785
Facts: This is a Queen's Bench decision argued by Allan Fay. Accused charged with impaired driving causing death and related offenses. One of the issues is whether or not the accused is impaired by both alcohol and illegal narcotics. The crown attempted to lead evidence that although they could not establish impairment by either alcohol or drugs alone, the combined effect met the burden.
Ratio: Mdm. Justice Eidsvik acquits the accused of everything except the "08." The judge notes that there is little research on the effect drugs on a person's impairment, unlike alcohol. In the case at bar it was possible that the accused's blood alcohol level was below the legal limit. Although there was evidence of the accused having an amount of THC in his blood, the crown could not show that this would've impaired his ability to drive. The judge described crown expert (Ms. Hoag) as having "very limited" experience. The following passage is interesting
54 Ms. Hoag went on to opine however that the combined effects of alcohol and cannabis results in an increased state of impairment than either of these elements on their own. Accordingly, in her opinion, she would expect that the combined effect of alcohol and THC in Mr. Tobin's blood at the time of driving meant that he would have been impaired in his ability to operate a motor vehicle.
55 The trouble that I have with Ms. Hoag's opinion about the combined effects in Mr. Tobin's case is how can she be so certain when one of the elements of the equation is so questionable by itself ? In particular, since the effects of the THC in a person's system can be so variable, dependant for instance on how regular a user they are etc., to the point that the experts do not feel comfortable opining on what level of THC means impairment, how does this uncertainty vanish when one then adds a potential amount of alcohol that by itself wouldn't indicate impairment either?
56 It is interesting to note that even though Ms. Hoag attempted to keep this latter opinion on the combined effect of alcohol and drug based solely on the lab reports, in my view her opinion may have been swayed by the limited witness statements she was provided with, which did not provide her with the full picture of the evidence as I have tried to set out above, and this limited information in isolation may have convinced her that Mr. Tobin's behaviour as noted by some, was evidence of intoxication. Had she been provided with the whole picture, as the Court has, she may have thought otherwise.
57 In summary, in my view, the evidence taken as a whole shows behaviour that is equally consistent with a young man who has been in a very traumatic collision, has suffered head injuries and severe lacerations, has just had his girlfriend die before his eyes, and was in shock by the whole tragic situation, than with someone who is "necessarily impaired" by alcohol and drug.
Comment: We can expect to see more of these types of prosecutions, especially concerning drug recognition experts. A couple of points of note:
#1. The expert in this case appears to have had some form of background in the hard sciences, and likely works at the Alberta Justice lab in Edmonton. This expert states that is very difficult if not impossible to prove a level of impairment based only on count.
#2. The trial judge specifically rejects the idea of "combining" a vague THC reading with a low blood-alcohol content. This is almost certainly what most of the "impaired by drugs" driving cases will be like.
R v Lungal 2008 CarswellAlta 1323
Facts: This is an impaired driving case at Edmonton. The main issue is whether the new evidence to the contrary rules apply retrospectively.
Ratio: The court holds that the rules do not apply retrospectively.
Comment: Another case which holds that the new rules don't apply to pre-July 2008 cases. Greg Dunn has advised that there a total of three cases which state this, including his own unreported case of R v Brabant.
R v Crisby 2008 CarswellNfld 312
Facts: Accused charged with possession for the purposes of traffic. Accused checked his bags in at an airport. Drug dog was used in the bag was removed from an Air Canada flight. Previously the RCMP received a tip from a confidential source that the Accused would be coming from Fort McMurray to Newfoundland with illegal drugs within the next few weeks. The RCMP were able to corroborate some of the details from the informant. They eventually learned the Accused's exact flight. The police lined up the bags from that flight and had the dog sniff them. The dog "tricked" on the Accused's bags. The Accused was placed under arrest. After being told by the police that they could get a warrant for his bag the accused signed a "consent to search" form. The bags contained 14 g of cocaine, 62 ecstasy pills in $11,000 in cash.
Issue: There were many arguments presented, but counsel asked the judge to only rule on whether or not the accused had a reasonable expectation of privacy in the bag.
Ratio: The court holds that the accused does have a reasonable expectation of privacy. The following passage is helpful:
21 I conclude that Brian Crisby had a reasonable expectation of privacy with respect to the contents of his luggage, save and except for searches thereof by C.A.T.S.A. personnel for items that could be used to jeopardize the security of an aerodrome or aircraft. The drugs and money found in his baggage, which are the subject of this proceeding, are not such items and thus Brian Crisby had a reasonable expectation of privacy in relation thereto.
Comment: An interesting case. Justice Canada's position appears to be that if the reasonable expectation of privacy is made out then so is the breach. They also appear to be conceding remedy. This case will be very useful for any drug charges arising in an airport where the search is not conducted by airport authorities. Note that in a post-9/11 world Airport bags were searched very, very frequently. However, by traveling on an airline the accused is only consenting to searches to protect his safety (i.e. by airport authorities). He is not consenting to drug searches.
Highlights:
· Courtroom 508 Update
· Crown Bail Project
· The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
· Remand Visit and CCTV Issues
· Docket and Disposition Court Opening Times
Courtroom 508 Update
The CDLA Practice and Procedure Committee continues to make efforts to bring about fair and effective change to the policy of having bail hearings on Monday, Wednesday and Friday in Courtroom 508 in Provincial Court in Calgary. On Wednesday February 4, 2009, the Committee consisting of CDLA members Allan Fay, Mitch Stephensen and Mike Dinkel met with Assistant Chief Judge (ACJ) Wilkins, Assistant Chief Crown Prosecutor Sheena Cunningham and Basem Hage from Court Services. It is clear that a number of our members are eager to see a return to the previous approach of having bail applications five days a week in Courtroom 508. The Committee advised ACJ Wilkins of this concern and all parties have attempted to work towards a resolution that will be agreeable to all parties.
During a previous Committee Update, CDLA members were advised that it would be possible to approach the Crown on a case by case basis and ask that their client’s bail be heard on a Tuesday or Thursday, if there were urgent or emergency circumstances. We were advised at the February 4th meeting that only two such requests have been made of the Crown since the inception of this practice in November 2008. In addition, we were advised that there are an average of only five Scheduled Show Cause per week in Courtroom 508. It was suggested that these statistics show that there are very few actual Scheduled Show Causes in 508 and that the CDLA members are either not taking advantage of the exception that exists for Tuesday and Thursday Bail Hearings or simply find no need for it.
Some members have expressed concern about the procedure for getting their client into 508 on Tuesday or Thursday, when the client is arrested on a Monday or Wednesday. In an attempt to improve the efficacy of the current procedure, it has been agreed that a client may simply ask that their matter be adjourned from Monday (in front of a Justice of the Peace) to Tuesday morning in front of a Provincial Court Judge. In addition, if Counsel has been contacted by the client, Counsel may simply contact the Justice of the Peace and advise them of the request to have the matter of bail heard the next day. It should be noted that requests from Counsel and the client to go to a Tuesday or Thursday will not be automatic and will be subject to the discretion of the Justice of the Peace. Court Services have advised that the Justices of the Peace will be contacted and advised that, in circumstances where urgent or emergency circumstances are found to exist, then the client should be allowed to adjourn their bail application to a Tuesday or Thursday.
This change to the pre-existing approach is intended to expand the ability of Defence Counsel and the accused to have Bail Hearings heard in courtroom 508 on an expeditious basis. It was also made abundantly clear to the Committee that the Judiciary would make every effort to address any concerns arising out of this policy. Should Defence Counsel find a circumstance where this policy does not work in a specific circumstance, the Committee will be glad to approach the Judiciary and try to find a solution that is agreeable to all. Furthermore, ACJ Wilkins advised that it is the view of the Judiciary that the previously mentioned statistics regarding Bail in 508 confirm that the current approach for bail in 508 is working and, as such, the Judiciary does not intend to revert to the former procedure of having Docket Court fivIn conclusion, the Committee feels that further progress on this issue has been made and that any problems that Defence Counsel may encounter can be addressed on a case by case basis. This must be seen as a work in progress and we look forward to any input the members may have on this issue.
· Crown Bail Project
The Practice and Procedure Committee also met with former Chief Crown Prosecutor Gord Wong on Friday, February 6, 2008 to discuss the upcoming Crown Bail Project. The general intent of the project is to have Crown Prosecutors available to conduct bail hearings at the Arrest Processing Unit on a 24 hour basis. The Crown is currently in the process of trying to hire new seven new Prosecutors to staff the Project. The intention is to phase in the Project so that in the beginning Prosecutors may only be available during the day, then eventually nights and finally weekends. Legal Aid has been included in this Project in an attempt to have Duty Counsel available at any time a Crown Prosecutor would be present. The Crown intends to make Disclosure available via fax or e-mail to any Defence Counsel who would like to proceed with their client’s bail application in front of the Justice of the Peace.
I have attached a copy of the information I have received from Gord Wong in relationship to this Project. I expect an updated version of this information to be released next week and I will forward it to the membership at that time. Mr. Wong will also be making a presentation on this topic on Friday, February 13th to a limited group from the Judiciary, Crown, Justices of the Peace, Court Services and Defence Counsel. Should anyone have any questions or concerns that they would like raised, please advise one of the members of the Committee who will be attending the meeting.
· The Court Case Management Project (CCM) and The Provincial Implementation Committee (PIC)
As you may recall, the Court Case Management Project (CCM) found its beginnings in the Crown File Ownership Project and then the other stakeholders were included when it was discovered the degree to which the Project would impact on day to day Court management. The CCM Project continues to move forward, albeit at a very slow pace. I continue to attend bi-weekly meetings of the Provincial Implementation Committee (PIC). Most of the meetings to date have revolved around planning and organization and there has been limited discussion regarding any matters directly affecting Defence Counsel. However, a number of workshops and demonstrations have taken place that have provided some hope for positive change in the future.
On February 4, 2009 a meeting was held in both Calgary and Edmonton via video conference where approximately 75 individuals from the various stakeholder groups were invited to attend. Presentations were made by various groups including the CCM Project Consultants, the Judiciary, Alberta Justice and by myself on behalf of Defence Counsel. In speaking to the group, I advised that a number of positive items had arisen from discussions to date. They include the following:
· Crown File Ownership
The intention with this portion of the CCM Project is for Crown Prosecutor’s to maintain conduct of a file from beginning to end. This will have certain advantages and disadvantages. On the positive side, it will hopefully allow Defence Counsel to access a Crown Prosecutor at an early stage in the proceedings to address issues such as Bail and Disclosure. As the matter proceeds, both the Court and Defence Counsel will know exactly which Crown will be responsible for the conduct of a file. Concern has been expressed that this would require that each Crown attend every Court appearance. The intention is to have the Assigned Crown instruct the Docket Court Crown how to proceed with each file. In situations where a case will simply be adjourned by consent, the plan is that neither the Assigned Crown nor the Defence Counsel will have to attend as the appearance in Court will be considered administrative in nature. The accused may also be excused from attending. The benefit to Defence Counsel is that less time will be wasted dealing with administrative matters such as booking Trial Dates and more time will be spent on substantive matters such as Bail Hearings and Trials.
· Remote Booking and Court Scheduling (JIMS)
As mentioned above, the hope is to use technology (including PDA’s and specifically Blackberry devices for the Crown) to remotely book Bail Hearings and Trial Dates. This can be done by Crown and Defence agreeing to a date in advance and remotely booking that date rather than attending at the Trial Coordinator’s Office, which we all know is a time consuming process. The Court Scheduling portion of the CCM Project is referred to as Justice Informations Management System or JIMS.
· Electronic Disclosure
Efforts are being made to find a safe and secure method to allow Defence Counsel access to Disclosure electronically. This would hopefully allow Defence Counsel to access Disclosure much earlier in the process.
· PRISM
PRISM is the software that is currently being employed by the Manitoba Crown Prosecutor’s Office. It requires Crown Prosecutor’s to make computer entries on each file and update the status of the file on an ongoing basis. I was present at a demonstration of the software and found it to be quite effective at organizing and logging the progress on a file. To my understanding, Defence Counsel has access to certain portions of the Crown file under PRISM and it is hoped that a similar arrangement would be entered into with Alberta Justice. It has not yet been determined if the PRISM software will be used by Alberta Justice. There has been some discussion that a new platform may created specifically for Alberta.
· Access to JOIN
Currently only Crown and Court Services have access to JOIN. There is some suggestion that JOIN may eventually be replaced by a more current system. The intention through the CCM Project is to allow Defence Counsel to access to JOIN or its successor, thereby allowing Defence Counsel to confirm court appearances and other information related to their clients.
These are just some of the potential benefits that may develop from the CCM Project. Initial implementation may occur as early as June 2008, with full implementation by February 2010. This Project will affect all Defence Counsel and I think it is important that we remain at the table and push for positive and tangible change on behalf of Defence Counsel. We look forward to any feedback Counsel may have on the Project. A Newsletter is currently being developed and once it is up and running, I will be forwarding it to all Defence Counsel.
Anyone wanting to look at the CCM in more detail can access the following links:
For a message from Deputy Chief Judge Lefever go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Message%20from%20DCJ%20Allan%20Lefever.pdf
For an Executive Summary of the Project go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/Executive%20Summary%20document.pdf
For a copy of the CCM Project Charter go to:
http://www.albertacourts.ab.ca/Portals/ext/pc/CCM%20Project%20Charter.pdf
· Remand Centre Visit Re: CCTV Access
Numerous attempts have been made to get all interested parties together for a meeting at the Remand Centre to review the recently remodeled area for CCTV and inmate holding. A new date has now been set for March 4, 2009 at which time ACJ Wilkins, Basem Hage from Court Services and The Practice and Procedure Committee will meet at The Remand Centre to tour the facilities and address our concerns with the Remand staff. Defence Counsel have expressed concern over access to clients via CCTV. Some Defence Counsel have found that CCTV personnel are not available until 4:00 p.m. as previously agreed and other Counsel are concerned over the fact that we cannot access our clients that are not appearing in Court on that day. The current arrangement is that Defence Counsel can request to see a client, not scheduled for court, any time after 1:00 p.m. This makes it difficult for Counsel as they are often only available in the morning. The Committee is endeavoring to have that time pushed up to as early as 11:00 a.m.
· Docket Court Opening Times
In the course of our February 4, 2009 meeting with ACJ Wilkins and Court Services it was confirmed that all Docket Courts would open 30 minutes before Court is scheduled to start. This will allow Defence Counsel to meet with Crown prior to Court and discuss matters related to bail or guilty pleas. Courtroom 306 has been a specific concern in that the Courtroom doors were often not open until after 9:15 a.m. and Crown would sometimes not arrive until nearly 9:30 a.m. The doors will now open at 9:00 a.m. and Crown has been instructed by Chief Crown Prosecutor Lloyd Robertson to attend at that time. This should allow some guilty pleas to take place right away at 9:30 a.m. The Committee would like to thank the Chief Crown for taking the time to meet and discuss this issue and for taking action on it on an immediate basis. We hope to arrange to meet with the Chief Crown on a regular basis to discuss our day to day concerns, so please advise your Committee Members should you have a specific issue that needs to be addressed.
The Docket and Disposition Courts will open at the following times:
305 – 8:30 a.m.
306 – 9:00 a.m.
505 – 8:30 a.m.
508 – 8:30 a.m.
· Final Remarks
Your Practice and Procedure Committee continues to devote their time and energy to bringing about positive change to practice in Provincial Court. We appreciate the feedback we have been receiving from all members of the CDLA. In a group of our size it is difficult for all of us to agree on each and every issue. It is our ability to respect each person’s point of view that allows us to have productive discussions at our meetings and in the hallways of the Courthouse. Please feel free to voice those opinions to your Committee Members on an ongoing basis and we will do our best to represent the interests of all Defence Counsel.
Respectfully submitted by,
Michael C. Dinkel
_____________________________
CASES by Alan Pearse
R v Tobin 2008 CarswellAlta 1785
Facts: This is a Queen's Bench decision argued by Allan Fay. Accused charged with impaired driving causing death and related offenses. One of the issues is whether or not the accused is impaired by both alcohol and illegal narcotics. The crown attempted to lead evidence that although they could not establish impairment by either alcohol or drugs alone, the combined effect met the burden.
Ratio: Mdm. Justice Eidsvik acquits the accused of everything except the "08." The judge notes that there is little research on the effect drugs on a person's impairment, unlike alcohol. In the case at bar it was possible that the accused's blood alcohol level was below the legal limit. Although there was evidence of the accused having an amount of THC in his blood, the crown could not show that this would've impaired his ability to drive. The judge described crown expert (Ms. Hoag) as having "very limited" experience. The following passage is interesting
54 Ms. Hoag went on to opine however that the combined effects of alcohol and cannabis results in an increased state of impairment than either of these elements on their own. Accordingly, in her opinion, she would expect that the combined effect of alcohol and THC in Mr. Tobin's blood at the time of driving meant that he would have been impaired in his ability to operate a motor vehicle.
55 The trouble that I have with Ms. Hoag's opinion about the combined effects in Mr. Tobin's case is how can she be so certain when one of the elements of the equation is so questionable by itself ? In particular, since the effects of the THC in a person's system can be so variable, dependant for instance on how regular a user they are etc., to the point that the experts do not feel comfortable opining on what level of THC means impairment, how does this uncertainty vanish when one then adds a potential amount of alcohol that by itself wouldn't indicate impairment either?
56 It is interesting to note that even though Ms. Hoag attempted to keep this latter opinion on the combined effect of alcohol and drug based solely on the lab reports, in my view her opinion may have been swayed by the limited witness statements she was provided with, which did not provide her with the full picture of the evidence as I have tried to set out above, and this limited information in isolation may have convinced her that Mr. Tobin's behaviour as noted by some, was evidence of intoxication. Had she been provided with the whole picture, as the Court has, she may have thought otherwise.
57 In summary, in my view, the evidence taken as a whole shows behaviour that is equally consistent with a young man who has been in a very traumatic collision, has suffered head injuries and severe lacerations, has just had his girlfriend die before his eyes, and was in shock by the whole tragic situation, than with someone who is "necessarily impaired" by alcohol and drug.
Comment: We can expect to see more of these types of prosecutions, especially concerning drug recognition experts. A couple of points of note:
#1. The expert in this case appears to have had some form of background in the hard sciences, and likely works at the Alberta Justice lab in Edmonton. This expert states that is very difficult if not impossible to prove a level of impairment based only on count.
#2. The trial judge specifically rejects the idea of "combining" a vague THC reading with a low blood-alcohol content. This is almost certainly what most of the "impaired by drugs" driving cases will be like.
R v Lungal 2008 CarswellAlta 1323
Facts: This is an impaired driving case at Edmonton. The main issue is whether the new evidence to the contrary rules apply retrospectively.
Ratio: The court holds that the rules do not apply retrospectively.
Comment: Another case which holds that the new rules don't apply to pre-July 2008 cases. Greg Dunn has advised that there a total of three cases which state this, including his own unreported case of R v Brabant.
R v Crisby 2008 CarswellNfld 312
Facts: Accused charged with possession for the purposes of traffic. Accused checked his bags in at an airport. Drug dog was used in the bag was removed from an Air Canada flight. Previously the RCMP received a tip from a confidential source that the Accused would be coming from Fort McMurray to Newfoundland with illegal drugs within the next few weeks. The RCMP were able to corroborate some of the details from the informant. They eventually learned the Accused's exact flight. The police lined up the bags from that flight and had the dog sniff them. The dog "tricked" on the Accused's bags. The Accused was placed under arrest. After being told by the police that they could get a warrant for his bag the accused signed a "consent to search" form. The bags contained 14 g of cocaine, 62 ecstasy pills in $11,000 in cash.
Issue: There were many arguments presented, but counsel asked the judge to only rule on whether or not the accused had a reasonable expectation of privacy in the bag.
Ratio: The court holds that the accused does have a reasonable expectation of privacy. The following passage is helpful:
21 I conclude that Brian Crisby had a reasonable expectation of privacy with respect to the contents of his luggage, save and except for searches thereof by C.A.T.S.A. personnel for items that could be used to jeopardize the security of an aerodrome or aircraft. The drugs and money found in his baggage, which are the subject of this proceeding, are not such items and thus Brian Crisby had a reasonable expectation of privacy in relation thereto.
Comment: An interesting case. Justice Canada's position appears to be that if the reasonable expectation of privacy is made out then so is the breach. They also appear to be conceding remedy. This case will be very useful for any drug charges arising in an airport where the search is not conducted by airport authorities. Note that in a post-9/11 world Airport bags were searched very, very frequently. However, by traveling on an airline the accused is only consenting to searches to protect his safety (i.e. by airport authorities). He is not consenting to drug searches.
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