R. v. Trudeau, 2012 ABQB 14

Court of Queen ’ s Bench of Alberta Citation: R. v. Trudeau, 2012 ABQB 14 Date: 20120112 Docket: 100832096U1 Registry: Medicine Hat Between: Her Majesty the Queen Crown - and - Eric Leonard Trudeau Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.V. Hembroff _______________________________________________________ [ 1 ] Eric Leonard Trudeau comes before the Court seeking an Order of Mandamus to compel the Learned Trial Judge to permit a non-lawyer agent to appear on his behalf. Trudeau is charged with two counts under

Section 129 (

a) of the Criminal Code . The first charge is obstruction of one officer in the execution of his duties and the second charge is resisting the same officer and two others, also in the execution of their duty. Both charges arise from the same circumstance. [ 2 ] The Crown indicated both of these charges would proceed in a

summary fashion as authorized by the Criminal Code . [ 3 ] The matter had gone on for some time for various reasons. However when it came to trial, preliminary matters were

addressed. One of these was a request that the Judge disqualify himself. This was not allowed and the Trial Judge seized himself with this matter. [ 4 ] Another of the preliminary matters was to allow the Defendant to be represented by a non-lawyer agent. Such representation is permitted by Section 800(1) of the Code , subject to the limitations set out in paragraph 802.1. It is the

interpretation of this

section that is in dispute. It reads: 802.1 Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on

summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province. 2002, c. 13, s.79 . [ 5 ] The

interpretation placed on that

section has been an issue with our Provincial Courts for some time. The two opposing views are best expressed by the decision of the Honourable Judge Fradsham in R. v. Spiry , 2005 ABPC 309 , and the Honourable Judge LeGrandeur in R. v. May , 2008 ABPC 59 . [ 6 ] In the former, Judge Fradsham decided the six month maximum sentence should be treated cumulatively where there is more than one charge, as here.

Thus, in the case before me, Judge Fradsham would say, as there are two counts albeit in the same Indictment each bearing a six month maximum sentence, cumulatively that could lead to two six month sentences thus, a twelve month maximum. Judge Fradsham says as a result, an agent would not be allowed in accord with the provisions of the Criminal Code . [ 7 ] In the latter decision, Judge LeGrandeur took the opposite view and found each count should be dealt with individually. Thus the maximum in either case could be a sentence of six months each, but they are not to be added together.

After a careful review of the authorities, the rules of statutory

interpretation, the history of the use of agents going back a number of years, and the debates of Parliament when the legislation was enacted or amended, Judge LeGrandeur finds the Defendant is entitled to the assistance of an agent. [ 8 ] In his decision, Judge LeGrandeur very specifically disagrees with his brother Fradsham. [ 9 ] I have reviewed each of these cases, the Judgments, and the reasons given in each. It is not my intention to repeat the Judgment of Judge LeGrandeur.

I am satisfied I can do no better than adopt the reasoning of the Judgment of Judge LeGrandeur and I do so without reservation. [ 10 ] I find the Defendant Eric Leonard Trudeau is entitled to be represented by an agent in this matter. [ 11 ] The Crown argues that I do not have the jurisdiction to make this finding. The view of the Crown is that the matter should be subject to appeal after completion of the trial because the refusal by Judge Greaves to allow an agent to appear is an interim decision, one not allowed to be appealed at this stage.

This view is of very little value to an impecunious Defendant, as the precise problem he has cannot be settled prior to the completion of the trial. [ 12 ] If I am without jurisdiction to deal with this now, and if the trial proceeds and the Defendant is found guilty, the Defendant’s redress is to appeal. As a ground of appeal he would have to make the same argument there as here. Assuming he were to be successful on appeal, he would have to start again, this time with an agent. With respect, this would be unfair to the Accused and is an unnecessary expenditure of the Court’s time and resources.

Surely it is to the benefit of the system that the matter be resolved here and now. This decision, at least for now, should bring clear direction to the Provincial Court as to the manner in which this problem should be resolved in future cases. [ 13 ] In R. v. Caron , 2007 ABQB 632 (as affirmed by the Supreme Court of Canada) it was observed by Justice Ouellette of the Court of Queen’s Bench:

Often, cases of this kind are such that the issues to be determined are of significance not only to the parties but to the broader community, and as a result the public interest is served by a proper resolution of those issues. [ 14 ] Thus there will be an Order that this matter be remitted to the Provincial Court with a direction that the Accused can retain an agent and the trial should continue. Heard on the 09 th day of December, 2011. Dated at the City of Lethbridge, Alberta this 9 th day of January, 2012. W.V. Hembroff J.C.Q.B.A. Appearances: Kevin Doyle for the Crown William Cocks for the Defendant