So now that you know the who, what, where, when, why and the how of PIs, let’s look at what the current debate is.  In other words, why should you as a resident of Alberta care about this issue?
Basically….. this is another question of balance (such a surprise, I know!). How do we balance the rights of people (the accused, the victims, the taxpayers…to name a few) and the interests of the legal tenants that our democracy is based upon (speedy trial, not to be arbitrarily detained or imprisoned, to know the case against you…to name a few).
Let’s look at some of the arguments on both the pro and the con sides of the PI issue (and this is by no means an exhaustive list –  just a few things that come to mind on a summer afternoon).
Let’s start with the con PI side.

• PIs result in hearing and examining the same evidence twice; it is fiscally more efficient to do this only once. Everything that is dealt with at PIs can be dealt with at trial.
• With PIs, victims are put through the ordeal of having to testify, and having to be cross-examined twice. This can be unnecessarily traumatizing.
• With the rules requiring disclosure, PIs are no longer necessary. Disclosure already meets the right of knowing the case against you. This is duplication.
• The Provincial Court (where PIs occur) is clogged, and it is resulting in the dismissal of cases and therefore, the denial of justice to victims.
• The system can be trusted to not bring frivolous or unjustified charges.
• In order to continue protecting the rights of the accused, PIs could be maintained for the most serious cases.

And now the pro PI side.

• The clogging of the Provincial Court is not merely the result of PIs. Similarly, PIs are not necessarily the source of pre-trial delay. Depending on the nature of the case, there may be other pre-trial motions or hearings that take place before the trial. Are changes to PIs really the best solution to PC clogging?
• PIs can often have a “clarifying effect” and therefore lead to cost savings. Depending on the evidence that emerges, an accused may decide to plead guilty, or the Crown may decide not to proceed to trial (i.e.: the charges are withdrawn).  Alternatively, a PI can lead to agreed evidence, thus shortening the subsequent trail.
• The evidence presented in a PI can lead to additional or more serious charges, thus a more accurate charge for the crime alleged to have been committed by the Accused.
• What evidence you see from disclosure (i.e. on paper) is not the same thing as testing the strength of that evidence. For example: cross-examination often leads to more information, such as a clearer picture of the credibility of witnesses.
• A lack of PIs could lead to a greater number of frivolous charges, and unjustified detention of accused persons.  As a result, getting rid of preliminary hearings could lead to unnecessary trials, appeals, mistrials and wrongful convictions, and, naturally, an increase in trials listed in Court of King’s Bench.

Complicated issue isn’t it? Not so easy to analyze without a whole a bunch of thought, analysis, and perhaps some statistics.
As is always the case, there are no easy answers to this one. This is very complex stuff, and all our rights – both as potential accused and potential victims, and as loved ones of other potential accused and potential victims –  are on the line.  So, too, are our interests as tax-payers.
The issue is currently under review by a working group of officials from all levels of government. Go learn more, go ask some questions, and go put in your two cents… it is both your right and your obligation as a member of this democracy.

Yesterday, we started to learn about the current debate around Preliminary Inquiries (PIs). More specifically, we examined why PIs are currently an issue and what exactly a PI is. Today, we’ll delve a little deeper.
Who and When: So who gets a PI and when does it occur. Is it every accused, every time? No.
When someone is charged with a crime, the criminal charges can be handled in one of three different ways (depending on what the Criminal Code of Canada says about that particular crime). Crimes are divided as follows.

• Summary conviction offences: these crimes are often sometimes considered to be ‘less serious’ crimes, carry a lesser penalty.

• Indictable offences: these are consideredmore ‘serious’ offences and have greater penalties.

• Dual or hybrid offences: these are a bit of a mix of the two. In a nutshell: the Crown prosecutor can choose whether to prosecute the case by way of summary conviction or indictment, depending on the circumstances of the case.

Trials for summary offences are heard before a judge in the Provincial Court and there are NO preliminary inquiries.
For indictable offences, on the other hand, (unless it as offence for which the Provincial Court has absolute jurisdiction – i.e. the case has to go Provincial Court) the Accused has the right to have his/her trial either before a Provincial Court judge or a Court of King’s Bench justice (with or without a jury – the Accused chooses that, too). The process of the Accused deciding which court will hear the trial is called “making an election.”  If the Accused elects to have the trial in the Court of King’s Bench (“KB”), there will be a preliminary inquiry (unless the Accused waives that right, or unless the Crown proceeds by way of direct indictment – more on that coming right up).
Where: If, after all of that of that charging and electing, a preliminary inquiry is to occur, it will be held in Provincial Court. Then the trial, if it goes ahead, will be in KB.
More When: Let’s look at it from another angle. When will there not be a PI?

• If it is a summary offence.
• If the Accused elects to have the trial in Provincial, there will not be a preliminary hearing.
• If the Accused elects not to have the PI, there will not be a PI. It is believed that this does not happen terribly often, but it does happen. An example of this was the recent BC toddler-kidnapping case. (There are no doubt many reasons an Accused may choose to go this route. A few examples include:  the Accused intends to plead guilty and wants to avoid publicity and/or expense; the Accused is guilty of more than the charged offenses and fears further charges from the evidence that may come out at the PI, or the defence already knows that the evidence is sufficient and wants to avoid wasting time and public expense);
• If the Crown proceeds by way of direct indictment.  Direct Indictment is a power described in s.577 of the Criminal Code. Essentially, this a power held by the Attorney General to direct that the matter go straight to trial (without a PI), usually on the grounds that is it in the public interest to do so. In order to get a direct indictment, the Crown must obtain the personal consent in writing of either the Attorney General or the Deputy Attorney General.  It has been held that, in and of itself, such an action does not necessarily violate and Charter rights. Historically, this direct indictment has not occurred that often, but it is on the rise in Alberta, from a total 10 in 2010 to 35 in the first 6 months of 2013. You might recognize some of the cases:  Travis Vader (the McCann disappearance); Travis Baumgartner (the G4S shooting) and the Baby M case.

Why? But what is purpose of all of this, you say (aren’t you the inquisitive one!)….. can’t we just figure this out at the start of the trial itself?
Historically, the PI was also used by the Defence to learn about the Crown’s case (i.e. what evidence did they have exactly), but now that purpose is also served by a mandatory process known as “discovery” (wherein the Crown has to tell the defence about its evidence).
These days, as our Supreme Court of Canada has noted, the PI: “is meant to be a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to ‘protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.’ The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring the accused to stand trial.”
In other words, the PI is sort of like hospital triage, or an x-ray: it is meant to help determine whether or not a case warrants the time and resources of a full trial, and it helps to narrow the focus the case (one learns what part are clearly evidenced and what parts are not). If the evidence is weak or non-existent, then the judge can dismiss the case. This step is meant to ensure that the time of the court is not wasted on frivolous or weak cases. It also has a focus on the rights and freedom of the accused, as, remember, an accused may be held in custody until trial (depending on whether or not s/he gets bail), so if it is frivolous, we want to know sooner rather than later.

Unless you are away on holiday, and basking in the summer sun (at which point, you might not want to read the news), you’ve probably heard of the recent proposal to do away with the preliminary inquiry (“PI”) in all but the most serious of cases. As this is not a topic that most Albertans know a great deal about, but since many Albertans would be affected by a change of law in this area, we thought we’d provide some background and context to the question. Talk about some fun summer reading!
Why?  Let’s start with why this is an issue right now.
This most recent go-around stems from a sexual assault case out of Airdrie. In that case, the accused was arrested and charged in September 2009. The matter did not come up for trial until October 2012. At that time, the defense applied for a judicial stay (i.e. that the issue be dropped), claiming that delay had violated the Accused’s right to be tried within a reasonable time (which is a Charter right – s.11(b)). The judge agreed. This effectively ended the prosecution. The accused cannot be tried again.
But what does this have to do with Preliminary Inquiries, I hear you ask? (Ok, not really, but I’m going to pretend.) After the Airdrie case, the Alberta government conducted a review to look at how to improve the delivery of justice in serious and violent criminal cases. In that review, (Injecting a Sense of Urgency ) there were 17 recommendations, including using direct indictments (i.e.: eliminating PIs) except in the most serious and complex of cases.
What? So what exactly is a Preliminary Inquiry (which, by the way, used to be called “the preliminary hearing”)?
A Preliminary Inquiry is a hearing that takes place to determine whether there is enough evidence to justify sending the case to trial (like the “Grand Jury” thing you see on TV in Law and Order – but that is American, so it is different). The PI is less formal that a trial, takes less time, and does not determine innocence or guilt or even whether or not the accused is probably guilty.
How? So how exactly does a PI work? Here is basically what happens:

• The preliminary inquiry (described in s.535 of the Criminal Code) occurs in Provincial Court, in front of a Provincial Court judge.
• The Crown prosecutor presents evidence and calls witnesses.
• The Defence does not present its case, but the Defence lawyer does have the right to cross-examine Crown witnesses.
• The Accused has the right to be present.
•  If the judge decides that there is not enough evidence, the judge wills dismiss the case and discharge the Accused, who is then free to go.
•  If there is enough evidence, the judge will order that the Accused stand trial in the Court of Queen’s Bench and a trial date is set.

Well that is probably a good start for today. Tomorrow, we’ll look at the PI in a bit more depth, including at the when, where and why. Stay tuned!

When faced with imminent danger and threats of disaster, employers may not immediately consider their legal obligations to their employees. 

Employers should have a plan for disaster response or business interruption.  Stephen M. Torscher and Peter Bowal’s article in LawNow magazine highlights some elements to keep in mind.

Here’s an excerpt from their article that talks about the obligations of employers to pay employees when work is disrupted following a disaster.

Many employers in Calgary and elsewhere in southern Alberta advised their workers to not report to work during and in the aftermath of the flood.  Are employers obligated to pay those employees who normally would have worked during that time?

Fundamentally, the employment relationship is contractual.  The consideration for salary is service.  If the employee does not provide service, the employer is not obligated to pay the employee subject to statutory and contractual obligations.  However, compassionate flexibility and good sense should prevail.  Often there may be more value in supporting employees through these troubled times by creating a positive and accommodating work environment than strictly adhering to the letter of the law.  This may mean paying wage despite no legal requirement to do so.

Employers can likely cancel shifts for casual employees who are normally free to accept or refuse work during these times with little risk subject, of course, to minimum pay requirements for employees who may have already begun their shift before being sent home.  The situation is more complicated for other employees.  Employers should consider options for having these employees report to a different location or working from home.

Learn more about the employment relationship in Torscher and Bowal’s article Employers’ Legal Obligations During Major Disasters.

With help from some great people, we’ve developed a resource for landlords and tenants who have been devastated by the floods in Alberta. You can click the picture below to read the info sheet, and you can click here to listen to an audio Q & A version. Thanks to Marc Affeld at CJSW 90.9 FM, Calgary’s Community Radio station, for developing the recording and making it available.

• Repairs

• After the Fire for Landlords & Tenants in Alberta

• After the Flood for Landlords & Tenants in Alberta

The resource answers common questions, like:

• What if the rental property has been damaged by a flood?
• Does the tenant have to keep paying the rent after a flood?
• Can the tenant move out because of the flood?
• Can the landlord use the security deposit to pay for damages?
• Who pays for stuff that is damaged?
• What if the tenant thinks the property isn’t safe or healthy to live in?
• Tips to help
• Where can tenants and landlords get more help?