Court is in Session: EP 1

Hi guys, welcome back to the TC Legal Podcast.

This is the first episode in a three-part series we're calling Court is in Session.

We're here with Matthew Browne, another defence lawyer here in Calgary, and we're going to walk through the criminal court process from start to finish, give you an idea of what it looks like, and discuss some of the things that aren't working as well as they could right now.

So to start off, Matt, welcome to the podcast.

Thank you.

Glad you could make it. I think we've been trying to do this for at least a couple of months now.

Yeah. Happy to be here.

The viewers obviously aren't going to know this, but although we're both practising law here, we actually started out in the same place.

You and I went to high school together.

We did, yes. Many years ago.

Were you surprised to find out that I became a lawyer?

I was.

I remember you were the valedictorian, very gifted academically. I recall barely graduating.

True.

I thought you were going to be a doctor or something like that, and after a couple of wrong turns you ended up becoming a lawyer.

That's a little bit of an insult.

I was actually surprised you reached out to me when you went to law school because you had a career as an engineer first. Is that right?

That's correct.

I worked in oil and gas for about seven years as an engineer for various companies in a number of different locations.

Then I wanted to go back and do something different.

I spent a lot of time thinking about it, and law seemed like a good fit.

I spoke with you about practising law while I was in the middle of preparing for the LSAT.

What made you want to switch from engineering, which is pretty different from being a lawyer, and come not only to law but specifically to criminal defence?

Was it the Harvey Specter type of thing on TV?

It wasn't the Harvey Specter type of thing.

When I was working as an engineer, I got to do a lot of cool things and travel to a lot of different places, but I never really enjoyed the work itself.

I wanted to do something I thought would be more satisfying.

I spent a lot of time thinking about what I wanted to do as a career and thought law would give me a meaningful opportunity to make a difference.

Maybe not on a huge scale, but on a more modest scale where you can directly impact people's lives.

I went to law school without knowing for sure that I wanted to practise criminal law.

But after my first criminal law class, the instructor was phenomenal.

She laid out, at a high level, what criminal law is all about.

I thought it seemed incredibly important on both sides — the Crown and the defence.

From that class forward, I thought, "Yeah, this is it for me."

This is where you want to be.

And you've only done defence work? That's where you articled as well, right?

Correct, yes.

I articled in Victoria and worked there for a year before moving back to Calgary.

And right now in Calgary you've opened your own practice under Browne Criminal Defence, right?

Yes.

As soon as I moved back from Victoria, I did that.

I worked out of a building with a number of more senior lawyers, and they helped me get my practice up and running.

Well, there you go.

And you were called in 2021?

Yes.

Excellent.

And your plan is to stay here in Calgary for now?

That's the plan.

It's a good place to work. It's a great bar and there are a lot of good people to work with.

I'm assuming you've gotten into all the different ways matters can proceed through the court process, at least in this jurisdiction.

Yeah.

The bulk of my practice, almost exclusively, is Calgary and the surrounding region.

I'm very familiar with a file moving from start to finish and some of the roadblocks and challenges that can get in the way, largely due to a lack of resources.

That's honestly one of the reasons why I asked you to come on for this session.

It's something I think you and I have talked about while waiting to get called in court or just randomly when we're at the courthouse.

I think all lawyers, particularly defence lawyers, are talking about this now.

It's an interesting issue to go through: the resource problem, how it contributes to delay, and the different procedural difficulties that can arise from arrest all the way through to an acquittal or potential sentencing.

For the viewers, that's what these three episodes are going to be about.

We're going to talk about issues with the arrest and bail process, disclosure and the pre-trial application process, and then the trial itself.

We'll discuss some issues that you've seen, some of the "fixes" that have been attempted that maybe haven't worked as well as they could have, and what you think could be improved or might work with some adjustment.

Sure.

In your experience dealing with individuals in the justice system right now in Calgary, starting with arrest and bail, can you tell me what the process looks like in your office when opening a file?

Starting at the Justice of the Peace stage, you'll get a call from somebody who's in custody, or a family member will call and say that an individual is in custody and being held for a bail hearing.

It's interesting that you mention the process of opening the file because often that actually happens later.

You'll get a call from an individual who may not have access to financial resources while they're in custody, so you're helping them with the hope that, if or when they're released, they'll come back and formally retain you and pay you for the time you've already spent working on the matter.

That's often happening in the evening or over the weekend.

For some reason, even though the JP office is open from 8:00 a.m. to midnight, despite wanting to go to bed at 10:00 every night, these JP bail hearings tend to happen around 11:00.

When somebody calls and they're in custody waiting for a Justice of the Peace bail hearing, I'll get in touch with them.

I'll talk with them initially to make sure they understand the charges they're facing and get an idea of how much they understand about what's happening.

Sometimes they'll know exactly what offence they're charged with and understand why they're there.

Sometimes they have no idea.

It can come completely out of the blue.

I've definitely had clients who've been arrested and get my name from a list, a phone book or something they remember.

They give me a call from custody and they've been contacted about something that happened a couple of months or even a couple of years ago.

The police don't necessarily want to give everything away because they may want the person to talk.

So they'll ask something like, "Does this sound like something you might remember?"

The person may have no idea what they're talking about.

A lot of times they're saying, "I don't actually know what I'm being charged with."

It's funny you mention that.

I had a client not long ago who was charged with an offence that occurred eight years earlier.

It's not as dated as some historical sexual assault allegations you hear about, but there had been a warrant outstanding for eight years.

The police took eight years to execute that warrant.

In the interim, she suffered three brain injuries.

Not one, but three.

The police were asking her questions about the offence and trying to conduct an interview, and she had no idea what they were talking about.

I talked to her on the phone and she said, "I've got no idea what's going on."

The next phase of the process is trying to get information from the client and then getting in touch with the Crown's office to try to negotiate bail.

I would say more often than not, a consent release can be negotiated at the JP stage.

Of course, not always.

If you've got a repeat offender, a section 469 offence or a very serious allegation, that may not happen.

But often it can be negotiated at the JP stage.

If not, then you're potentially looking at running a contested bail hearing in front of a Justice of the Peace and preparing a bail plan.

Time is of the essence in those circumstances because you're trying to come up with an appropriate residence and potentially a surety, depending on the nature of the allegations.

You've also got to decide whether you want to run the risk of proceeding with a bail hearing when you don't necessarily have the strongest possible plan because you haven't had enough time to put it together.

Or even the best disclosure.

Previously, bail hearings were often conducted differently at the JP stage before they moved to the current system.

There was more of a 24-hour bail process, at least Monday to Friday.

Police conducted the bail hearings.

Disclosure was essentially nonexistent at that point.

They didn't really give you anything.

You were allowed to call in and participate.

I'm not sure exactly when they transitioned. I think it was pre-COVID.

What they've done now, and this is one area where I think they've definitely improved things in terms of delay and disclosure, is the Crown Prosecutor's Office has its own bail office.

When you reach out to them, one of the things they'll do is explain how to obtain bail disclosure.

It's by no means complete disclosure, but at least it's something you can immediately download once it's available.

It may provide the police synopsis, general occurrence reports, police notes and similar materials.

So as counsel, you actually have a reasonable understanding of at least some of the investigative steps that have been taken.

I think that's made a huge difference when it comes to negotiating consent releases.

A lot of times you end up in front of the JP not necessarily because it's an extremely serious case or because someone is a repeat offender, but because policies have been put in place.

Domestic violence matters may have to go through a JP bail hearing.

Sexual assault matters may also have to go through a JP bail hearing.

Even though realistically the person may ultimately be released, they're not going to simply be released on paperwork by police.

They're going to go through the bail process first.

That inherently means there are going to be more bail hearings because if police can't simply release somebody, it contributes to the backlog.

Like you were saying, a lot of bail hearings are conducted around 11:00 p.m., even though most people probably want to go to bed a little earlier, because there are so many cases.

My understanding right now is that the Crown Bail Office works around approximately a 20-hour system because they need to ensure the bail hearing occurs within the applicable 24-hour period.

You're acutely aware of that.

To make sure they're prioritizing matters properly, they estimate when the 20-hour mark is and aim to have the bail hearing around that point.

The bail hearing is supposed to happen as soon as practicable.

It's not supposed to be unreasonably delayed.

They've implemented that process to help ensure they don't miss the deadline.

I guess my question is, first, whether you were aware of that.

Second, what do you think that says about the resources available even for JP bail hearings?

Could there potentially be a breach where it would have been possible to have the hearing earlier, but the matter has effectively just been placed into that time slot?

I was familiar with it.

I think there's a general understanding in the defence bar that that's how it tends to work.

If you go back and look at your matters, they often tend to fall around that 20-hour mark.

I don't think that's a surprise.

The most recent one I had was one of those offences where, because of policy, the individual needed to be held for a JP bail hearing.

The person was released on conditions that the Crown essentially selected and sent to me.

I had no issue with any of them.

My client had no issue with any of them.

Yet he was still held.

Resources were taken away from a genuinely contested bail hearing, and he remained in custody when he potentially could have been released on an undertaking that would have imposed the same legal obligation to attend court and follow those conditions.

I do think there is potentially a breach there.

If somebody is held when they're otherwise releasable, solely because of policy, and then they're released 20 hours later, that's concerning.

If they're arrested late at night, they're being held until the next day.

That 20-hour window could mean missing work, which could potentially lead to job loss.

There can be serious consequences.

I understand there are constraints on the system.

But if you look at the law surrounding bail and what the Supreme Court of Canada has said about the earliest opportunity for release and the least onerous conditions, which stems from section 11(e) of the Charter, if that isn't being complied with, then there's potentially a breach.

I think the challenge is finding an individual who wants to spend the time litigating that.

That's probably one of the reasons we're in the situation we're currently in.

I think that's a really fair point.

A lot of the issues we have with delay and bail depend on finding a client who has the time, resources or principled interest in advancing those arguments.

Often, those arguments might not give you the remedy you're ultimately looking for.

They may not result in a stay of proceedings or the exclusion of evidence that's going to produce a tangible result at trial.

So you need a client with significant enough circumstances, along with the resources and interest to pursue those types of breach arguments, knowing that realistically they may not produce a major result for that individual.

They're often more about the bigger picture for the justice system as a whole.

And those clients, I'm sure you can appreciate, are few and far between.

At least on my end.

Most people come in and they're understandably focused on solving their immediate legal problem.

Yeah.

I would be too if I were in the same situation.

That makes complete sense.

So we've discussed the JP bail hearing.

From the outset, when somebody gets arrested, I would say well over 70%, if not 80%, of individuals are released on an appearance notice, undertaking or another form of release that police can issue without lawyer involvement or a JP hearing.

For policy reasons or other considerations, some people have to go through a JP bail hearing.

Often you try to resolve things there.

But the next stage, if you don't think you have a sufficient bail plan, you're not prepared to proceed or the Crown isn't prepared to run the hearing, is that the matter may be adjourned into the Alberta Court of Justice.

Then you get into a whole host of other issues.

The legal standard for bail remains the same whether the hearing is before a JP or an Alberta Court of Justice judge, but the process changes fairly significantly, at least in Calgary.

Absolutely.

In Calgary, correct me if I'm wrong, but my experience is that unless you're able to negotiate a consent release with the Crown, everything is almost always scheduled.

Negotiations largely happen by email because the Crown isn't physically in the courtroom anymore.

You can't seem to have a phone conversation with anyone these days.

The hearing may end up scheduled days, if not more than a week, down the road.

Has that been your experience?

That's been my experience.

The last situation I had involved scheduling a contested bail hearing for an individual without a criminal record.

He was tangential to the alleged offences and had some real triable issues.

He also had a job that was at risk.

The first bail hearing available for him was two weeks away.

Even when it's two weeks out, there may be a handful of days afterwards with no availability.

Or the first date may fall on a Friday and the next availability isn't until several days later.

The point is that the first available date may already be two weeks away.

Then you also have to consider whether counsel is available.

So it becomes a significant scheduling challenge.

Despite Criminal Code provisions that, in my opinion, make three days a ceiling or maximum for certain adjournments, and considering the current constraints of the Alberta Court of Justice, you may still be looking at roughly two weeks to get a contested bail hearing in Calgary.

In Calgary specifically.

The rural and regional courts are a little different.

They tend to be able to accommodate contested bail hearings at the end of the day.

But Calgary is so overrun that they're often unable to do that.

Every day may effectively be fully booked for bail hearings for the next couple of weeks.

Scheduling is one of the biggest issues.

The three-day rule is set out in the Criminal Code.

I've read some decisions from Red Deer and decisions from Justice Fraser in Calgary dealing with that issue.

I agree with you.

My understanding is that if the Crown legitimately needs three days to prepare, bring necessary materials forward or obtain disclosure, they're entitled to those three days.

Sure.

Anything beyond that can require the accused person's consent to remain in custody.

Absent it being a section 469 offence, which includes very serious offences such as murder, the general starting principle is release unless the Crown can establish why detention is justified.

One of the reasons for those time constraints is that an accused person should not simply remain in custody indefinitely while waiting for the system to become available.

The longest period of certain adjournments without consent at the Crown's request is three days.

Some judges have interpreted that to mean each individual adjournment can be up to three days, rather than there being one adjournment with a maximum of three days.

There are different opinions about how that should apply.

But realistically, if the available hearing date is two weeks away and you make that argument, the court's solution could simply become, "Bring it back in three days and we'll adjourn it again."

I understand why the court is in that situation, but I don't think that's a particularly persuasive interpretation of what Parliament intended.

If Parliament intended an unlimited sequence of three-day adjournments, I'm sure they could have used different language.

Absolutely.

There are Ontario cases saying that an accused person shouldn't essentially have to make an appointment for a bail hearing.

That doesn't mean the court must be available instantly whenever the defence wants.

But you also shouldn't have to sit in custody for two weeks simply waiting for an available appointment.

Again, it runs contrary to what the Supreme Court of Canada has said about bail — release at the earliest reasonable opportunity and on the least onerous appropriate conditions.

I understand the court is dealing with a lack of resources.

The court isn't intentionally saying, "We're going to wait two weeks because we want to."

That's simply the situation it's in.

But I absolutely think that, depending on the circumstances, there can be a breach of somebody's rights under section 11(e).

Then you're back to the same problem: finding somebody who wants to actually advance that argument.

Unfortunately, accused people may accumulate pre-trial custody time that could ultimately count toward a sentence, and some would rather deal with it that way and move forward with their case.

That's the other issue.

To litigate this argument might take more than two weeks anyway.

By the time you've had the bail hearing, your client may be saying, "That's not my concern anymore."

Exactly.

It's already been dealt with.

Before we move into the next part, I agree that this is the situation the courts are dealing with.

But it's not the accused person's responsibility to shoulder the burden of an under-resourced court system.

We're in one of the largest cities in Western Canada, in a very large courthouse with numerous courtrooms, and yet there are still significant limits on when bail matters can be heard.

One of the things we're going to get into in the next episode, because we're running out of time here, is the delay caused by disclosure.

Sometimes you get a bail hearing date that's two weeks away, but there's still incomplete disclosure.

You can't effectively run a bail hearing unless you understand the case being advanced against the accused.

Sometimes the Crown has disclosure that hasn't been vetted yet, or everyone knows more disclosure is coming but defence counsel doesn't have it.

That can leave the accused in an unfair position when trying to advance a bail hearing.

Delays in disclosure are going to be a significant topic for our next episode.

We'll see you guys in the next one, where we'll discuss the next stage after bail: pre-trial procedure and disclosure.

Thanks, Matt.