The Canadian Spy, Bail Reviews, and Preliminary Inquiries

Jeffrey Delisle, the naval intelligence officer charges both under the Security of Information Act and the Criminal Code, will have a preliminary hearing on those charges starting on October 10, 2012. For a full review of his charges, a discussion of other infamous Canadian spies, as well as a primer on the Official Secrets Act and the legislation now enacted to replace that Act, the Security of Information Act, read my previous posting on the issue Spy vs. Spy. For a discussion of Mr. Delisle’s bail hearing see my posting Blog Update: The Spy and the Pamphleteer.

This date seems rather late considering Delisle was denied bail and has been in custody since his arrest in mid-January, 2012. By the time Delisle has his preliminary hearing, he would have been in pre-trial custody, which is much harder time than serving a sentence, for nine months. Considering this, it would not be surprising if Mr. Delisle’s counsel will launch a bail review under s. 520 of the Criminal Code.

Such a review is heard by a Superior Court Judge. In this instance as the matter is in Nova Scotia, a bail review would be before a Nova Scotia Supreme Court Justice. In such a bail review, the Judge considers any relevant evidence, both written and oral, the transcript of the previous bail hearing, any exhibits filled at the previous bail hearing, and such additional evidence as either the Crown or the defence may offer.

On a bail review, counsel may argue that the previous order denying bail was based on a legal/factual error. Such argument would be based on transcript evidence and legal argument. Or the defence might argue a material change in circumstance has occurred since the previous hearing. This argument would include affidavit evidence or even vive voce evidence, which would involve calling witnesses at the review hearings. When this occurs, the bail review becomes essentially a new bail hearing. The onus of proof on a bail review is on the party who brings the application; in this case it would be the defence. It is therefore the defence who must satisfy the reviewing Judge that judicial interim release is appropriate.

There is also a provision in the Criminal Code, under s.525 for an automatic bail review if an accused has been in custody, in Delisle’s case, for more than ninety days. Considering the length of time he has already been in custody, six months, one can assume such automatic reviews have occurred. Although, these reviews are automatic, in order to ensure an accused does not languish in jail unnecessarily and in order to preserve the presumption of innocence, defence counsel can waive or pass on the right to an automatic review. This would be done if the prospect of bail seems slim. However, in such an automatic review, the reviewing judge does consider the delay in the matter coming to trial and the reasons for the delay. The longer the accused sits in pre-trial custody, the more likely the accused will eventually be released. However, in those complicated cases, which require much effort to get ready for trial, the courts will tolerate longer delays.

In Delisle’s case, because of the severity of the allegations, a trial date was not set but a preliminary hearing date. Additionally, Delisle elected to be tried by judge and jury once the matter goes to trial. Such an election is typical as the defence can change that election to a Judge alone trial after the preliminary hearing. It is far simpler to elect down to a judge alone trial than it is to elect up to a judge and jury, hence the election is usually for judge and jury.

It is important to understand that a preliminary hearing is not a trial where guilt and innocence is at issue. Traditionally, the sole purpose of the preliminary hearing is to ensure there is enough evidence to put the accused to trial. It is another safeguard to ensure the accused is fairly tried. If there is insufficient evidence, the defence will ask for a discharge of the accused at the preliminary hearing. If this is granted, the charges are dismissed and the accused is released from custody and no longer is charged with a criminal offence. If there is sufficient evidence, the judge will order the accused to stand trial in the superior court.

A preliminary hearing is heard in the lower level or provincial court. In order for the judge to make a determination of sufficiency of evidence, the Crown, who has the burden to show why the charges should proceed, calls witnesses to give evidence. The defence then has a right to cross examine the witnesses, which brings us to the ulterior reason for a preliminary hearing: to act as a discovery of information on the case, which will assist in preparation for evidence and to “pin down” witnesses on their evidence. This “pinning down” or defining clearly under oath and the record a witness’s evidence is important for trial. If a witness later changes his evidence, the fact at on an earlier occasion, when the matters were more fresh in the witness’s mind, the witness gave different evidence, will go to the credibility or believability of the witness at trial. Also, should the witness abscond or disappear, the earlier evidence given under oath at the preliminary hearing may be read into evidence at trial.

Despite the importance of the preliminary hearing to the full answer and defence of an accused, there have been calls to abolish the practice both in Canada and in other Commonwealth jurisdictions such as Australia. Some Caribbean Commonwealth countries, such as Trinidad and Tobago, have abolished the hearings. Indeed, in the UK, where the concept originated, as of April 2012, preliminary hearings or, as the English call them, committal hearings have been abolished. The changes are being phased in, with some jurisdictions still following the old system. Instead, the Crown is obliged to ensure full disclosure of the case is given to the accused in a timely fashion. Obviously, this safeguard cannot possibly take the place of a cross examination at a preliminary inquiry. In the United States, which does not follow the English common law tradition, under certain circumstances, there are preliminary hearings.

What will this mean for Mr. Delisle? In October, Mr. Delisle should be able to test the government’s case and determine the sufficiency of the evidence against him. The public however will not be privy to that information. Typically, the court on a preliminary hearing will order a ban on publication of the evidence heard, in order to ensure that no potential jurors are pre-disposed by the committal evidence. Additionally, the Crown may shut down the preliminary hearing at anytime during the course of it or even not hold the hearing at all, choosing to directly indict the accused to superior court. This tactic is helpful if the case is complicated to present or if the investigation is ongoing. There is, therefore, a possibility that Mr. Delisle will not get his “day in court” until trial. Until October, the story of the Canadian Spy will continue. 

The Charter And The New Alberta Impaired Drivings Laws: Going Beyond Driving Is Privilege

Our discussion of the tabled Alberta impaired driving rules continues with a look at the legal arguments which may be available under the Charter. At first glance, it appears the case law shuts down any Charter argument based on a review of a myriad of cases, across the provinces, upholding similar legislation.

Even the Alberta Court of Appeal, in the 2003 Thomson case, comes down strongly in favour of this kind of provincial legislation. Thomson upholds the legislation, despite division of powers arguments and claims of Charter violations under s.7, s. 11(d), and s.13, on the basis the legislation is valid provincial legislation, which is purely administrative in nature and therefore imposes a civil sanction as opposed to a criminal penalty. Furthermore, driving, as a licensed regime, not essential to a person's liberty interest, is a privilege and not a right under s.7. Finally, there is great public interest in preventing "carnage on the highways" from drinking and driving.

Despite the above authorities, I would suggest there are still valid Charter claims, which can be brought before a Court depending on the facts of a particular case. As touched upon in yesterday's blog, the automatic, immediate, and indefinite suspension of a driver's license of an offender charged with impaired driving under the Criminal Code as a result of the new scheme, could result in heavy burdens on the administration of justice to have impaired/over 80 cases heard in a speedy manner.

Other provincial legislations place a time limit on these roadside provincial suspensions: typically the maximum suspension is 90 days. The Alberta legislation suspends the licence until the criminal matters are disposed, a time period dependent on the timeliness of the trial. Thus, an unreasonable delay argument under s.11(b) of the Charter may result in those cases where the criminal justice system is unable to provide a timely trial. It may be safely argued that considering the escalating time limited suspensions elsewhere, depending on if the matter is a first offence, a trial may be unreasonably delayed if not heard within 7 days, thirty days, sixty days, and in the most serious scenarios, ninety days. 

There are many factors a court must consider in deciding whether a trial has been unreasonably delayed due to the Charter. Certainly, pursuant to the Askov case, systemic delay is a primary consideration. Other factors include Crown delay in preparing the matter ready for trial and prejudice to the accused. A lengthy licence suspension, can be highly prejudicial to an accused who may require the licence for employment or who lives in a rural area, where public transit is unavailable. In certain circumstances, albeit fact dependent, a Charter delay claim may be successful. As suggested in the previous blog, such a claim could cause the government to prioritize impaired driving cases over more serious crimes, resulting in inappropriate allocation of public resources.

Another Charter argument, more difficult to argue, but again, depending on an appropriate fact situation, should be argued, is a violation of s. 7 rights. Although, the weight of the authorities appears to be against rearguing the issue, the Supreme Court of Canada, in recent cases such as in PHS Community, Gosselin, and Khadr, have expanded the definition of right to liberty under s.7.

Indeed, starting as early as a decade ago, in the 2000 Blencoe case, the SCC has, cautiously and incrementally, moved toward a much more expansive definition by not restricting the definition of liberty to "mere freedom from physical restraint." Liberty may be restricted when the government interferes in an individual's right to make "profoundly personal choices" which impact their independence, self-worth, and self-identity as a person.

As stated in Gosselin, such liberty interests are triggered by an individuals' interaction with the justice system in the broadest way, such as any "adjudicative context." This would include the administrative scheme under whose authority the licence is suspended.

It can, therefore, be argued that a driver's licence for an adult in today's world is a rite of passage from adolescence to adulthood and is integral to an individual's identity and self-worth. The independence a licence bestows upon an individual is not about mere movement from place to place, but includes highly personal choices of where one can move and at what time. Consider the great impact a loss of license has upon the cognitive disabled and the elderly and the argument becomes even more cogent.

The legislation is therefore vulnerable to Charter rights. Tomorrow, I will discuss other areas of legal concern, outside of the pure Charter arena.

Thirty Day Review

Under s. 525 of the Criminal Code, there is provision for an automatic bail review for those accused who have been detained in custody pending trial. If the matter is a more serious indictable offence, the review occurs within ninety days. If it is a less serious summary conviction matter, the review is within thirty days.

This review acts as a procedural safeguard by keeping track of those in custody. It is also an important aspect of the presumption of innocence as the judge determines whether the further restriction of liberty of those merely accused of a crime is justified. Additionally, the review reinforces the Charter right to reasonable bail.

Borrowing the nomenclature of the Criminal Code, but not the analogy, this is ideablawg's thirty day review. Ideablawg has been in operation since October 10 and the weekend postings will offer updates on the issues discussed. As part of this thirty day review, I invite you to send me an email with your favourite post or even with ideas for future posts. As the creative thinker Steven Johnson said:

We are often better served by connecting ideas than we are by protecting them... Environments that build walls around good ideas tend to be less innovative in the long run than more open-ended environments. Good ideas may not want to be free, but they want to connect, fuse, and recombine... They want to complete each other as much as they want to compete.

Update on Thursday, November 10, 2011 at 6:25AM by Lisa A. Silver

FYI, a list of the blogs can be found on the "home" page.

What's in A Word? From Treason To Celebration

Today is Guy Fawkes Day in the UK and, although recognized increasingly less, also in Newfoundland. Guy Fawkes was a radicalized Catholic, who attempted to blow up King and Parliament in the 1605 Gunpowder Plot. His treasonous actions resulted in his execution. It is celebrated tonight through the burning of bonfires, the lighting of fireworks, and the burning of the miscreant's effigy.

There is also a more modern connection as the Occupy movement have taken Guy Fawkes as a symbol of revolution. On a gentler note, the event imbues deeper meaning to the name of Professor Dumbledore's Phoenix; Fawkes. 

Treason itself is an oddity. Defined as an act of betrayal against one's government, it is an ancient crime still found in our Criminal Code, yet rarely used. Indeed, until repealed in 1995, high treason was considered in equal seriousness as first degree-murder, attracting similar penalties including the death penalty. 

Yet, how does such a terrifying event transform itself from terror to celebration, from revolution to praise, and from death to disuse? For an answer, we can turn to the Canadian experience and to an equally seminal historic event; Louis Riel and the Red River Resistance. At the time, Louis Riel was considered a radical, his provisional government was branded treasonous, and for his efforts he too was executed.

His actions have now been viewed quite differently as the founder of Manitoba and the protector of Metis rights. School-age children are not taught to expunge his memory but to embrace his vision and to appreciate the background story behind his revolutionary actions. Even the government has been asked to re-draw their perspective through Pat Martin's private member's bill, the Louis Riel Act, which, if passed, would commemorate Riel's actions and expunge his "crime."

History, therefore, is a fluid concept: as we navigate through time, differing perspectives colour the past, providing us with a richer present. As a result, you may never view a word or event the same again. Now that's something worth celebrating.

Update on Saturday, November 5, 2011 at 8:44AM by Lisa A. Silver

As a follow-up, I highly recommend the graphic novel on Louis Riel by Chester Brown as a "re-drawing" of history. You can read about the book here.

A Lesson On How To Get Tough On Impaired Driving

Two weeks ago, I invited a guest lecturer to speak to my criminal procedure and evidence class about defending impaired/over 80 offences. The lecturer, a lawyer, did an exceptional job of walking the students pictorially through a typical impaired/over 80 case by using photographs of the Alert or roadside screening device, of the "Breath Bus" or Checkstop bus, and of the breathalyzer machine (actually, the experts insist on referring to them as "instruments" per the Criminal Code).

It became very clear to the class that impaired/over 80 cases are complex, highly technical cases involving difficult evidentiary and legal issues such as expert evidence from the breathalyzer technician, Charter challenges, and the use of the legal presumptions under s. 258 of the Criminal Code. 

Another message was equally clear: do not drink and drive. Although drinking and driving cases are technical in nature and open to a myriad of legal arguments, if the Crown and police have all the legal requirements properly in place, a conviction will result. This was "scared straight" in legalese.

Now two weeks later there is much political talk of making the impaired driving laws tougher in Alberta. How tough? Well, BC tough. In tomorrow's blog, I will expand on what "getting BC tough" really means and the possible repercussions. But, in the end, will "getting tough" deter impaired drivers? Will the carnage on the highways, which we sadly read about on a weekly basis, lessen? Will these new laws make our roads safer?

It is difficult to determine if tougher laws do, in fact, deter and change behavior, despite Premier Clark's insistence that statistics prove her tougher laws work. I, for one, prefer the old fashioned route - education. My son and, recently, my daughter attended the P.A.R.T.Y or Prevent Alcohol and Risk-Related Trauma in Youth Program offered across Canada through the local health services. At this workshop, the 14 to 15 year olds meet people who have made the wrong choice to drink and drive. Although some are in wheel-chairs and some are not, they all are scarred, either physically or emotionally, by their actions. The students listen to their stories, they hear the terrible consequences of poor choices, and they decide not to make the same decision. To me, this is the best form of prevention.

For some foreshadowing of tomorrow's blog entitled, Impaired Driving Legislation: A Little Diversion, read today's Calgary Herald editorial cartoon.