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  • Justice for Brian:

    12th April 2013 – Justice for Brian:

    "Don't let it end like this. Tell them I said something."

    - Last words of Pancho Villa:

    The 10th Court date4 (7th under the umbrella of Court Case Management (CCM)) has passed with no information forthcoming to me from the Public Assistant Unit (PAU), apropos to the Brian Ludwig Manslaughter Case (BLMC). The PAU, a division of the Calgry Crown Prosecutors Office, provides information on court proceedings to victims and witnesses in serious offence cases such as sexual assault, murder, manslaughter, etc. during the Criminal Justice process and liaises between the witnesses and the crown prosecutors as they are unable to communicate directly.

    Serious offence cases that enter the CCM program often languish there as in the very recent example of the “The judicial stay of sexual assault charges arising from a case in Airdrie this past October has raised concern about the justice system, and, in particular, what should be done to better manage delays that lead to Askov applications…..” 1 This case in question sat under the umbrella of CCM for 20 months. The BLMC is currently languishing under the same totalitarian system.

    The report mentioned above as 1 is 32 pages long and is worth reading and is probably well intentioned. This report outlines the deficiencies in the judicial system that led up to the judicial stay of sexual assault charges against an alleged perpetrator. However, I fail to understand how you can assign the individual(s) who created the problem to find the solution and fix it. It seems to me we will only get more of the same bureaucracy.

    In the courtroom situation there is transparency for everyone who attends. In the CCM program, there is no transparency for the victim and, as in the case of murder, the victim’s survivors.

    The BLMC along with the following new charges has been adjourned to the 25th April 2013.

    The accused was re-arrested on the 21st March 2013. A new twist has been added to the BLMC in the form of of 3 new charges filed against Hooser. The first charge is “Driving with a blood alcohol (BAC) over .08” and the second one is “Impaired Driving.” The third charge related to breaking of his bail conditions.

    The negotiating stakes seemed to have been kicked up a notch. For the first time in the past 8 months rookie Crown Prosecutor Colin Schulhauser is now in consultation with the Assistant Chief Crown Prosecutor Michael Ewenson. Mr. Ewenson is a senior prosecutor within the Calgary office. He was called to the bar in the North West Territories in 2003 and in Alberta in 2005 bringing with him a lot of experience to the negotiating table.

    Penalties for impaired driving are outlined in the Criminal Code of Canada. Actual sentencing varies from case to case. General sentencing and license suspension in Alberta are imposed by a judge and are as follows:

    1. First offence - $1000 fine and a 1-3 year driving prohibition;

    2. Second offence – 30 days in jail and a 2-5 year driving prohibition;

    3. Third offence – 120 days in jail and not less than a 3 year driving prohibition.

    Both DUI charges against the accused are very similar and in all likelihood only one of them will stand. There is an immediate need to settle these charges before the manslaughter case. While he sits in jail, he is given credit for time served in custody and he has been there now for 23 days. These charges are also sitting in a different court than the manslaughter case. The manslaughter case is sitting in the highest court, the Queen’s Bench.

    The accused cannot apply for new bail in the BLMC until 90 days have passed, placing the date at or around the 20th June 2013.

    On Tuesday, 4th September 2012, the accused appeared in court and was released on $3,000.00 bail. This was one of only 2 courtroom events so far to date in the BLMC and the only ones that we could have attended.

    After arrest and charges filed by the police, the steps in the judicial process are the following court events (in a perfect judicial world according to the Alberta justice system) that are supposed to happen on:

    THE PATH TO A TRIAL - COURT APPEARANCES:

    1. First Appearance: All criminal charges in Alberta start out in provincial court in front of a Provincial Court Judge. A person charged with an indictable offence is served with a notice to appear in court at a specific time and place. This will be a docket court. In a reasonable time frame, this should be within one month of the arrest.

    2. Election: At this court appearance, the charge(s) are read, and the judge asks the accused for his "election". In the case of a serious offence such as manslaughter, the accused may elect to go to trial in Court of Queen's Bench with or without a jury. Then a date is set for the preliminary hearing. In a reasonable time frame, this should happen within 2 months of an arrest. A date for a Preliminary Inquiry WAS NOT set at this time in the BLMC nor was election made. The BLMC is stuck at this location in the judicial process.

    3. Pre-Preliminary meetings: Sections 536.3 to 536.5 of the Criminal Code of Canada govern “Procedures Before Preliminary Inquiry.” These provisions were proclaimed about 10 years ago when it was recognized that time to trial was expanding and that the Judiciary needed to exercise case management to accelerate matters and get to trial faster. So far, 8 months have passed without this phase being completed and no admissions have been made by the accused. Reasonably speaking, this phase should be finished within 3-4 months of an arrest.

    4. Preliminary Inquiry: This is not a trial. It is akin to a rehearsal trial in which the prosecution has to fully disclose all of their evidence; the defence does not. The defence also has the right to cross-examine the Crown witnesses. At this hearing the judge determines whether there is enough evidence to proceed to trial. The accused has the right to be present. If the judge decides that there is not enough evidence, the accused will be "discharged"; however, this almost never happens. If the accused pleads “not-guilty”, the judge will order the case to go to trial and a date is then set for an arraignment a week or so later. In a reasonable time frame, this should happen within 6 months of an arrest. So far, I have been led to believe, that if this is held in a courtroom, we can also attend. However, in the case of an accused who is represented by counsel, the hearing does not have to take place in an open courtroom.2

    5. Arraignment: At this court appearance, at which the accused is usually present, the trial date will be selected. The substance of the charges against the accused are formally laid before him/her and he is asked whether he pleads guilty, not-guilty or whether he has cause to show why an order should not be made.3 A judge is not usually present. The defence and Crown Prosecutor will consult with the Court Clerk as to a mutually favourable date. In a reasonable time frame, this should happen within 6 months of an arrest.

    6. The Trial: In Alberta, the trial date is usually several months after the arraignment, approximately a year after the crime. In a murder trial, this time frame is not realistic nor does it happen very often in Alberta.

    The reality is that Brian’s case is still stuck under # 2 "election” operating under the guise of Court Case Management. As it currently stands in Alberta, the scheduling of the Preliminary Inquiry date is tied to the completion of the “Pre-Preliminary meetings”.

    Crown Prosecutors in Alberta are answerable only to the Solicitor General. In Alberta, there is significant pressure on prosecutors to resolve cases out of court because there is a limited amount of court space available and in that available court space, it is rarely possible to conduct 5 or 6 trials in one day.

    The Alberta Judicial System is currently operating under a system similar to a take-a-number system. Serious offence cases enter in the same line up for courtroom time as traffic tickets, landlord tenant issues, vandalizing, shop lifting, fraud, theft, and so on.

    I am all for solving the problem. My solution to the problem however is not doing more of the same. You cannot do the same thing over and over again and expect different results. Crown Prosecutors should be accountable to the general public and therefore, should be elected by the people whom they serve.

    There are currently 8 CCM offices operating in Alberta, handling over 7,000 cases per month that would normally have been presented BEFORE A JUDGE in a courtroom.1

    Think about that! 84,000 per cases per year that normally would have been transparent to every-one are now operating behind closed doors under a veil of secrecy with transparency being available only to a select group of people.

    If you or someone you know has been the victim of a violent crime in Alberta, you the reader should hope that you are not going to be 84,001.

    1 https://justice.alberta.ca/programs_services/criminal_pros/Documents/InjectingSenseUrgency.pdf

    2 http://www.albertacourts.ab.ca/pc/criminal/preliminaryinquiry/practicenote.pdf

    3 http://yourlaws.ca/criminal-code-canada/801-arraignment

    4 NOTE: The court dates in the BLMC have been:

    1. August 28 2012 – charged with manslaughter;

    2. August 31 – adjourned to:

    3. September 4 – made bail;

    4. October 12 – CCM;

    5. November 6 – CCM;

    6. December 3 – CCM;

    7. January 17 2013 – CCM;

    8. February 20 – CCM;

    9. March 20 – CCM;

    10. April 12 – CCM;

    11. April 25 – CCM;

    AUTHOR: Angela Ludwig - April 2013

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