CDLA Newsletter - April 9th, 2009 - Issue #9

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.