On June 1, 2004, Parliament proclaimed in force the Criminal Law Amendment Act, 2001, SC 2002, c 13 relating to the conduct of the preliminary inquiry in criminal cases in Canada. The legislation enacted what is now s. 536.3 of the Criminal Code which provides that a statement be provided to the court identifying: (a) the issues on which the requesting party wants evidence to be given at the inquiry; and, (b) the witnesses to be called to testify. The section also provides that the provincial courts of the provinces may make rules regulating the notice period under ss. 482 or 482.1 of the Code. Under this authority, the Provincial Court of Alberta published a Notice to the Profession (2004) with a form described as a “Counsel Statement Identifying Issues and Witnesses”. In practice the party requesting a preliminary inquiry in Alberta is predominately, if not exclusively, the defendant (by his or her lawyer) and the Counsel Statement has become known as Form A.

On January 14, 2015, Judge B.D. Rosborough, a judge of the Provincial Court of Alberta in Red Deer, released a controversial ruling in R v Stinert, 2015 ABPC 4 regarding the substantive requirements of Form A. Judge Rosborough expressed the opinion, at para. 23, that Code s. 536.3 mandated “a form of defence disclosure for the purposes of the preliminary inquiry”. On that basis, he went on to conclude, at paras. 42 and 45, that: (1) where a Form A fails to properly identify the issues and witnesses to be called, the court is entitled to find that there has been no request for a preliminary inquiry; and, (2) a deficient Form A carries with it the risk that the request for a preliminary inquiry will be deemed to have been withdrawn or abandoned and a defendant will be peremptorily ordered to stand trial.

The Form A filed by defence counsel in Stinert stated that the defendant wanted to hear and/or examine: “Any and all evidence that the Crown intends to rely on to prove the case against the accused including but not limited to evidence of a direct or circumstantial nature, viva voce evidence of Crown witnesses and any relevant documents, electronic recordings, photographs, videos or expert reports.” In reviewing an exchange between the court and defence counsel, at paras. 4-5, Judge Rosborough observed that the Form A “contained no further information relating to these witnesses”.

The ruling in Stinert sparked concern among defence lawyers throughout Alberta that triggered a letter sent to Assistant Chief Judge J.A. Hunter of the Red Deer Region on March 27, 2015, by Shannon Prithipaul, President of the Criminal Trial Lawyers’ Association (Edmonton); Jason Snider, President of the Red Deer Criminal Defence Lawyers’ Association; and, Ian Savage, President of the Calgary Defence Lawyers Association (the “Presidents’ letter”). The letter was based on a draft prepared by senior counsel D’Arcy DePoe of Edmonton that incorporated suggestions of the executives. Before discussing the position taken, I will briefly review my understanding of the case law that governs Counsel Statements (Form A) in Canada. These principles were reviewed in the Presidents’ letter.

The leading appellate authority is R v Gallant, 2009 NBCA 84, 250 CCC (3d) 29 where Justice J.C.M. Richard, speaking for a unanimous court, held at paras. 37-40, that: (a) s. 536.3 does not require defence counsel to limit the evidence and the number of issues nor does it alter the ultimate adjudicative responsibility of the preliminary inquiry justice to determine whether there is sufficient evidence to order a defendant to stand trial; and, (b) a defendant cannot be precluded from seeking an order of certiorari if the preliminary inquiry judge commits jurisdictional error in the process. The conclusions of the New Brunswick Court of Appeal were adopted in Alberta by Justice R.P. Marceau in R v Eddy, 2014 ABQB 234, 583 AR 254 at para. 16. The relevant aspects of the opinion in Gallant, binding on the Provincial Court by the superior authority of Eddy, were not considered by Judge Rosborough in Stinert. The conclusion is therefore inescapable that Stinert is wrongly decided. But the story does not end there.

The Presidents’ letter to Assistant Chief Judge Hunter went on to address the constitutional implications of Judge Rosborough’s ruling. These implications tie into the foundation principles of the Canadian justice system that I discussed in my post titled The Ethical Parameters of Pretrial Conferences dated October 2, 2014. I will let the Presidents’ letter speak for itself, at pp. 3-4:

“Every accused person, whether represented or not, has a pre-trial right to the benefit of the principle of freedom from self-incrimination, as described in R v MBP, [1994] 1 SCR 555, at paras. 36-40. This principle against self-incrimination has been elevated to a principle of fundamental justice under section 7 of the Charter. The Supreme Court concluded in MBP that an accused person has no obligation to cooperate with or assist the Crown in the prosecution of its case. The Court stated at paragraph 36: ‘Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution.’

It is patent that to require counsel to fill out a ‘Form A’, which ‘identifies issues’, is to require not the accused, but the accused’s counsel, to disclose aspects of the accused’s defence, which has the clear effect of assisting the Crown in the prosecution of its case. It also raises the dilemma that the lawyer may have to breach privilege in some cases in order to do so. Interpreting s. 536.3 as mandatory, by requiring counsel to identify issues and relate the named witnesses to those issues, would therefore have the effect of breaching the accused’s fundamental rights under section 7 of the Charter.

Further, it is a well-established principle of statutory interpretation in Canada that legislation is to be interpreted in a manner which conforms to the Charter, particularly with reference to the principles of fundamental justice.

It is wrong, therefore, to suggest that section 536.3 gives the Court jurisdiction to regulate the content of the ‘Form A’, in the manner described in paragraph 37 of Stinert; and in the Notice to the Profession. We make this submission despite the fact that rules on this subject have been enacted in the Province of Ontario. First, we would suggest that a proper reading of section 536.3 requires that the ‘Form A’ be filed within a period fixed by the rules, or if there are no rules, within a period fixed by the Court. The ability to make rules in this regard appears to relate only to the period of time within which the statement of issues must be filed, and not with the substantive content of the ‘Form A’.

Secondly, it should be apparent that section 536.3 was not intended to abrogate an accused person’s constitutional rights. There is nothing in the words of the section which could lead to this conclusion. It was certainly not discussed in any of the debates in Parliament, cited in Stinert, and in other cases. It is untenable to conclude, on the basis of s. 536.3, that the filing of a ‘Form A’, which identifies specific issues and witnesses, is mandatory. This would mean, inter alia that the constitutional right to pre-trial silence of a represented accused is different from that of an unrepresented accused, as of course section 536.3 does not apply to self-represented individuals.

Third, in our respectful view, it wouldn’t matter if it was the accused who was required to file the document. It would still be a breach of section 7.”

The Criminal Rules of the Ontario Court of Justice, SI/2012-30, s. 4.3(3) [the “Ontario rule”], considered by Judge Rosborough in Stinert, at para. 37, and addressed in the Presidents’ letter at p. 4, is an invasive disclosure rule designed to facilitate state discovery of the defence case. In my opinion, it violates not only the right to silence in s. 7 of the Charter but also the presumption of innocence in s. 11(d) thus implicating a defendant’s fair trial interests. Of real concern to the criminal defence lawyer in this context was the suggestion made by Judge Rosborough, at paras. 38 and 40, that if there are no rules “the court itself may impose requirements of this nature” as there is a need for the court “to intervene and more actively regulate the form, content and practice” under s. 536.3 at the docket court stage.

The Presidents’ letter then went on to conclude, at p. 4: “All counsel is required to do under s. 536.3 is file a ‘Form A’ which sets out what issues he wants to be litigated, and which witnesses he wants called. This is permissive only. An accused, through counsel, is entitled to require of the Crown and the Court that a full preliminary inquiry be conducted, without the defence identifying specific issues, or naming witnesses. It would then be up to the Crown to decide what witnesses to call. This is entirely consistent with the legislative scheme. The Crown is not by virtue of s. 536.3, relieved of its burden to meet the Sheppard/Arcuri test for committal, nor is it obliged to call any witnesses named by the defence.”

The Presidents then, at p. 5, turned their attention to Judge Rosborough’s conclusion, at para. 45, that a deficient Form A carries with it “the risk that the request for a preliminary inquiry will be deemed by the court to have been withdrawn or abandoned”. Authority for this conclusion was not cited. Indeed, none exists. To the contrary, the Supreme Court of Canada has made it clear that a defendant does not lose his or her rights due to the fault of counsel. The right to a preliminary inquiry cannot be lost as a result of counsel’s failure to file a Form A or in filing an erroneous one. As the Presidents pointed out, the “loss by default” approach to legal rights was held to be unconstitutional in the case of s. 488.1 of the Code regarding deemed waiver of solicitor-client privilege. It is trite, of course, that the right to a preliminary inquiry is the right of the defendant, not counsel. (See: Lavallee, Rackel & Heintz v Canada, 2002 SCC 61, [2002] 3 SCR 209 per Arbour J., at para. 39)

As I mentioned above, the issues raised by the Stinert ruling, as addressed in the Presidents’ letter, bear upon the questions I considered in my previous post about the conduct of pretrial conferences and the Court of Queen’s Bench Form CC7 contained in the Alberta Rules of Court. That did not escape the attention of the Presidents who said this, at pp. 5-6:

“There is an interesting parallel here. The Court of Queen’s Bench of Alberta last year established a new practice and procedure, embodied in new Rules, with respect to the conduct of pre-trial conferences. This initially involved a requirement that the defence fill out a lengthy pre-trial conference form, which on its face required defence identification of many different potential trial issues, and defences. Initial attempts to use these forms at pre-trial conferences were met with substantial resistance from the Defence Bar, and there was more than one difficult moment between Bench and Bar, when defence counsel declined to provide the information requested in the form.

After further discussion, meetings with representatives of the bar, and due consideration, the Court very fairly recognized that the accused is never required to identify issues, make admissions, disclose potential defences or strategy in the pre-trial process, and that the provision of any pre-trial information, identification of issues, and so on, must be, under our constitution, purely voluntary. This recognition was based primarily on the principle against self-incrimination, and solicitor client privilege.”

The Presidents’ letter to Assistant Chief Judge Hunter, with courtesy copies sent to Chief Judge T.J. Matchett, the various Assistant Chief Judges throughout Alberta and the Chief Crown Prosecutor in Red Deer, was prepared in direct response to a new Notice to the Profession regarding the conduct of preliminary inquiries that relied on the Stinert ruling. The Presidents began the letter by asserting that the new Notice did not comply with the Charter, and was contrary to a strict construction of the law as well as Parliament’s intent revealed in the text of s. 536.3. In asking the court to reconsider the substance of the new Notice, the Presidents drew attention to the breakdown in the adversarial system that occurs when courts determine questions without hearing both sides: “We would note here parenthetically that it is unfortunate the Court in Stinert did not have the benefit of submissions from counsel prior to writing its opinion. This is not the fault of counsel in that case, but in an adversarial system, we would respectfully submit that it is necessary to hear and understand the perspective of the defence before such important issues of criminal law and procedure are dealt with. This is particularly so where the essential rationale of the decision of the Court, which has led to the generation of the Notice, is obiter dicta, and the issue is raised essentially ex proprio motu.”

I understand that the court has acknowledged the concerns of the defence bar. As of the date of this post, steps have not been taken by the Alberta Provincial Court judiciary to implement the Stinert ruling and the new Notice to the Profession remains in abeyance.