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.
Tuesday, February 10, 2009
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