Friday, March 26, 2010

Withdrawal for the Non-Attendance of "Mr. Green"

I must write a quick commentary on the just-released judgment of the Supreme Court of Canada in R. v. Cunningham...because it is already being misconstrued by mainstream media and the courts must not be misled as to what the SCC really said.

The Calgary Herald has published an article with the outrageously misleading headline, "Lawyers can't dump deadbeat clients, top court rules." That is absolutely NOT what the SCC decision in Cunningham stands for.

True, the SCC did conclude that both superior and provincial courts hearing criminal matters have the jurisdiction to refuse a lawyer's application to withdraw for non-payment of fees but the more revealing part of the analysis is that the unanimous panel described such a refusal as "coercive" and therefore directed that the jurisdiction should be used "exceedingly sparingly."

The judgment concludes with a very concise summary paragraph:

In sum, a court has the authority to control its own process and to supervise counsel who are officers of the court...This jurisdiction, however, should be exercised exceedingly sparingly. It is not appropriate for the court to refuse withdrawal where an adjournment will not be necessary, nor where counsel seeks withdrawal for ethical reasons. Where counsel seeks untimely withdrawal for non-payment of fees, the court must weigh the relevant factors and determine whether withdrawal would cause serious harm to the administration of justice.

Earlier, the SCC judgment notes that even where the court finds that the administration of justice would be seriously harmed, withdrawal MAY be refused...not must be...for non-payment of fees. The SCC elaborated stating that "only in the most serious circumstances" should a criminal defence lawyer be forced to shoulder the financial burden of providing access to justice. "Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice."

So...R. v. Cunningham actually stands for the proposition that lawyers clearly CAN dump so-called "deadbeat" clients...or what us more ethical professional types would instead refer to as clients who for whatever reason find themselves unable to pay (of course, how could one expect sensationalist media types to recognize that sometimes...dare I say oftentimes...people who are impecunious are not "deadbeats").

The good news for us here in Alberta is that the SCC standards set in Cunningham actually are pretty much exactly the test that was set by our Alberta Court of Appeal back in 1996...with but one significant exception. When considering how to balance the application to withdraw as against the harm to the administration of justice, the SCC specifically noted that administrative inconvenience, specifically whether the court time could be used by another case if an adjournment was required is not a relevant consideration.

One final note that is very important for the future arguments of this issue. The SCC expressly did not rule on the merits of the Cunningham case...calling that issue moot since they were only deciding whether the court had the jurisdiction to make such a ruling.

That is, Cunningham does not stand as authority that if Legal Aid cancels your client's coverage one month before preliminary inquiry that your application to withdraw for non-payment of fees should be denied. Obviously, every case will be decided on its own facts, applying the Cunningham criteria and any other relevant circumstances to the balancing.

Although I end by emphasizing to defence counsel, Crown counsel and judges alike that Cunningham uses very strong language against orders requiring counsel to act for free even where applications for withdrawal for non-payment are "untimely". Don't let media hype replace actually reading the judgment and applying its true spirit.

Michael Bates
Calgary Criminal Defence Lawyer

Monday, March 22, 2010

Stelmach's Police State

The principles of fundamental justice and ideals of a free and democratic society are being so actively stripped right before our eyes, that as a born and raised Albertan I am contemplating leaving the place that my family helped to build.

When receiving the bronze commemoration of our family farm being a century old there was never a more proud moment for my grandfather. Yet the Alberta rancher I know...born at the end of WWI, made it through the Great Depression, WWII, countless droughts and market killers like BSE...would be appalled to see how our government has positioned itself through the propogation of fear to where its armed officers will be demanding its citizens to "show your papers" or be summarily detained and searched.

Dozens of my grandfather's best friends died overseas to help Europe escape from that type of government...and we now blindly accept it coming here.

My rant I suppose has been building for some time as Alberta has been rallying to provide massive State authority to take private property from its citizens even if there is no proof that they have done anything wrong; cities like Calgary have laws that make it illegal, punishable by jail, to make someone uncomfortable on public property, to participate in a gathering in a park, to curse in public, to put your feet on a bench, and on and on.

Enter the latest outrageous grant of State power under the guise of "anti-gang legislation"...the Body Armour Control Act.

Now, I know, the first reaction from people will be, "but this is just a law to prevent gangsters from wearing body armour which allows them to riddle our streets with bullets with can you have a problem with that?"

Well, here's how.

Firstly, alleged gangsters who are wearing body armour now are often carrying firearms, which can you believe, are not lawfully owned or registered. Therefore, forgive me if I have trouble believing that a guy toting an illegal handgun on his way to kill a rival (oh yeah, murder is also illegal) is going to stamp his feet like a dejected 3 year old who's mom just took his soccer ball for refusing to clean up his toys and go back into his house and sulk because the body armour he is wearing has suddenly become illegal for him to possess.

In case you missed my point in the sarcasm, the Body Armour Control Act will have absolutely no effect whatsoever on improving community safety or reducing shootings or lowering risks to the general public (which, the police don't want to tell you are risks that are all way down and have been going that way consistently for years).

What the Act will do is make any law abiding citizen who would choose to protect themselves with a form of clothing have to submit to fees and regulations of a permit process or become a law doing nothing but possessing an item that is completely legal to possess.

So my critics will say, "okay, maybe it's not the most effective tool in the police toolbox, but anything that helps them can't hurt, right?"

Well, that's where they are wrong.

What no one seems to have clued into is the police-state provisions that are built into this legislation. The Act provides that a police officer who has reasonable grounds to believe that you are in possession of "body armour" in a public place can WITHOUT WARRANT search you and any personal property in your possession. A car is personal property by they way.

Now if you are found illegally possessing body armour (i.e. when demanded to "show your papers" you come up short), then the horrible teeth of the Act come out...the body armour can be seized!! Oh my!! The gangsters will be devastated!! It might be an overnight courier before they will ever be able to replace it!!

But wait...

Maybe, just maybe, this whole thing is a elaborate smoke-screen. No...the government would never deceive its citizens would it?

Of course, it's hard to dismiss the possibility that what this legislation actualy represents is a completely obvious see-through method to allow the State to demand papers from any citizen with a bulky sweater, search their person and all personal property for the evil "body armour" (some of the Kevlar stitching can be abrasive, you could get a serious raspberry if someone rubbed their bullet proof vest against your arm!) and have a back door entry to indiscriminately search for things that they really want (drugs, guns, money, your religious faith, political affiliations, baby pictures...the State's interests are endless really) and never have to get those damn troublesome warrants.

I mean, really, how can you run an effective police state if you have to deal with independent judicial officers who sometimes say "no" you can't abuse the citizen that way?

"Now who's fear-mongering?" my critics will no doubt jump at the chance to point out that police never do bad things and even if they wanted to, they would need reasonable grounds to believe you are possessing "body armour"...only bullet-proof vest wearing gangsters have to fear police harrassment from this new law, so come on with this police-state stuff...right?!

Well, let's take a look at what "body armour" is under this legislation. It's "a garment or item designed intended or adapted for the purpose of protecting the body from an item or object used to, or adapted to, stab, pierce, puncture or otherwise wound the body."

Now, for those of you thinking that hockey equipment could be "body armour", well, you're right, but the State has thankfully decided to exempt sports equipment from the Act. They have also exempted workplace safety equipment that is required by an OHS code so you don't have to stop wearing safety glasses...although clearly they could otherwise be "body armour".

So what of my grandfather the trailblazing Alberta rancher? Well, he's got a conundrum. See, OHS legislation doesn't apply to the farm, so, if he chooses to wear safety glasses, leather gloves, a welding apron, or perhaps even coveralls...he may well be subjecting his person and his vehicles to warrantless search. After all, I rather doubt that my gramps will be filing for his body armour permit for his work gloves...the lawless maverick that he is.

So now to my I pack up my family and head to a different place where government is appropriately constrained by a citizenry that actually protects its civil liberties with vigor? I could. But that seems entirely un-Albertan to me. And why should my family leave after over 100 years of building this province? No. I can tell you what I plan to do.

I have already ordered my body armour. Should get it this week. And I plan to start wearing it. Not because I fear the false threats that the State has conjured up with the assistance of the supposed independent media. No, I will be wearing overt body armour, so the police can see it. And when they ask me to "show my papers" (after Bill 12 rams through the legislature with scarcely a thought of any debate) I will see where that goes...if I get my way, it will go into a courtroom.

My apologies, Primier Stelmach, but you have no right to send your soldiers to search me. My right to life liberty and security of the person may not provide a "right to bear arms" as for our neighbours to the south, but a protective vest presents no risk of harm to anyone, and using my desire to protect myself from harm as a way to purportedly subject me to what would clearly otherwise be an unlawful detention and search simply crosses the line.

Wake up Alberta.

Oh, and in case you still think I am just being some kind of alarmist, for fun, have a read of the judgment of a member of our Alberta Court of Appeal in a case called R. v. Cornell.

Criticising what he called the "indiscriminate habit of balaclava-clad police conducting searches in private homes" in our province, Justice Ritter wrote a useful reminder, "Canada is not a police state."

I might suggest a re-write, your Lordship..."Canada is not supposed to be a police state."

Michael Bates
Calgary Criminal Defence Lawyer

Monday, March 01, 2010

It Ought to be Illegal to do...Well, Everything

While not strictly a criminal law issue, there are fundamental links between criminal justice and the workings of a free and democratic society like ours...which is why I write this quick post.

Opposition NDP and Liberal parties in Alberta are proposing that the way to deal with voter apathy and record low voter turnout in our province is to make it illegal to not vote.

The worst part is that the proponents appear to think that this bullying to the ballot-box will somehow translate into votes against the current government?!?!?!?

I will be the first to tell friends and family members to practice democracy...not only on election day, but with donations of time and money, in community groups, on blogs, and anywhere else the opportunity arises. But when the government (and I view all MLA's or MP's as the "government") can only think to legislate inspiration and criminalize one's decision not to exercise a democratic right (because some are not just lazy, but seek to effect political change by refusing to vote) then for me democracy has already failed.

If a law were passed that punishes non-voting with a fine, then I would not vote (which would be a first in my entire "elligible for voting" life) and then challenge the constitutionality of such legislation...and likley win.

Perhaps I can make a suggestion to the opposition parties. If you want voter turnout (and you want those votes coming your way) give people a reason to vote. Inspire with leadership and policies that the people you seek to lead actually want. Disappearing voter participation is not the is a symptom of an underlying disease.

And it is obviously not a disease only of the current governing party.

Michael Bates
Calgary Criminal Lawyer