Defence Lawyer Irate at Lack of Prosecutors

Wednesday, October 23, 2019

The day after the Alberta government introduced legislation at hopes of stopping domestic violence, a Calgary defence lawyer (not the author of this blog) went off in court over his inability to book a timely trial due to a lack of domestic violence prosecutors. The lawyer attempted to book a day-and-a-half trial for his in-custody client on domestic violence related charges including assault causing bodily harm and intimidation. Despite there being court availability to handle such a trial as early as two months away, there was no available domestic violence prosecutor available for nine months. 

Defence Lawyer Irate at Lack of Prosecutors

The lack of an available prosecutor flies in the face of the policy that domestic violence trials be heard within 90 days after the province created a court dedicated to domestic violence. Defence counsel said to the judge:

“The government can do better. Everything this court was designed to do is not happening anymore…Something is wrong.”

After hearing the background of the case and most importantly the fact that the accused, who is of course presumed innocent, was in custody, Judge Meagher said of the accused:

“We can’t have a person on a charge like this sitting in custody until July.”

The judge then ordered that defence counsel book trial dates on the court’s first available date and disregard the Crown Prosecutor availability. Thankfully, Judge Meagher took into consideration the fact that no accused should sit in Remand simply because of a lack of resources at the Crown Prosecutors office, no matter what the charges are. 

Government of Alberta spokesman Jonah Mozeson said the province is investing $10 million dollars to hire 50 new prosecutors and support staff throughout the province:

“Albertans deserve a better justice system that protects them, their loved ones and their property.” 

Like so many issues surrounding a scarcity of resources, does the government throwing money at a problem actually fix anything? Will hiring a small number of prosecutors spread throughout the province actually allow for timely trial dates or will the justice system continue to slowly grind to a halt. The inevitable answer is that money will not solve this problem.

The central issue is not that there are not enough prosecutors, though that is a significant issue. The real problem is the lack of proper screening of criminal files and various police agencies constantly overcharging accused persons. Many police officers have a mantra of “why lay one charge when I can lay 10.” Invariably, 9 of those charges will be withdrawn, but usually not until the accused has been slowly churned through the criminal justice system. The longer a file takes to resolve generally has a direct correlation to how many charges were laid. 

Man cleared of assault after judge rules he was suffering epileptic seizure

Ironically, the day before the above-noted outburst occurred in provincial court, another provincial court judge lambasted police and Crown Prosecutors. Judge John Bascom cleared a man charged with assaulting a nine-year-old girl, ruling that he was suffering an epileptic seizure at the time.

In his decision, Judge Bascom was highly critical of the court system that led to the accused spending 14 months behind bars while awaiting his trial. It was only until shortly before trial that a newly assigned Crown Prosecutor dropped the more serious charges of kidnapping and unlawful confinement. 

“I can only conclude this was a case where police failed to consult Crown counsel before filing charges…”

The accused was charged with grabbing the young girl as she left dance class with her mother. The girl’s mother managed to wrestle her daughter free from the accused before he walked away.

But the judge determined Shaw-Zak’s actions were not voluntary as a result of a seizure that occurred at the time or immediately prior to the event.

Charges dropped mid-trial 

Not only is there a constant police over-charge, there is often improper or incomplete file screening in order to determine what files have a likelihood of conviction, what are in the public interest to run and in which files no crime has actually been committed. While much of this is due to a chronic shortage of prosecutors available to take the time to fully screen a file, it is also due to a failure of properly trained prosecutors who are able to flag files for such issues. 

On the same day that Judge Bascom issued his scathing decision above, I ran a trial that should have never made it past the roadside where my client was arrested. Under the relatively new implementation of mandatory roadside screening for alcohol provisions in the Criminal Code, my client was stopped and forced to provide a sample of breath. Despite her not having consumed alcohol in years, she was told to provide the sample or be charged with a criminal offence. For seven minutes she made ten attempts to provide a proper sample without success, all of which was captured on the office’s body worn camera. Despite her asking the officer to provide greater explanation on what to do, he repeatedly talked over her and refused to answer her questions. Even when she offered to try standing so that she could hopefully provide a better sample, the officer refused and charged her with failing to provide a sample of breath. She had her license immediately suspended for 90 days and was forced to hire a criminal defence lawyer.

Despite immediately attempting to convince the prosecutor that my client should have never been charged because she committed no offence, the prosecutor refused to withdraw the charge and it proceeded to trial months later. It wasn’t until after the police officer testified that I was able to convince the newly-assigned prosecutor of exactly what I explained months before, that no crime was committed. Thankfully, the charge was dropped mid-trial and my client was able to move forward without a criminal conviction. 

The point of this story is not to brag about a recent success, but to point out that the court system is overwhelmed because files are not being properly screened. In my case, there was no likelihood of conviction, there was no public interest in prosecuting a person who couldn’t provide a sample of breath despite the officer admitting there was absolutely no indicia of impairment and there was a fatal flaw in the charging document that should have ended the case before it began. The problem started with an overzealous police officer and ended with an entire trial date wasted on a matter that should have never been there. 

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.