Friday, June 11, 2021
A two-week suspension for "erroneous advice" has been imposed by a hearing committee of the Alberta Law Society.
The advice was provided to a client facing criminal charges
The Admitted Citation arose from the legal advice Mr. McKen gave to R.S. on May 19, 2013, when Mr. McKen was acting as Brydges duty counsel. The term "Brydges duty counsel" derives from the Supreme Court of Canada's decision in R. v. Brydges, 1990 CanLII 123 (SCC),  1 S.C.R. 190, in which the Court held that the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms imposes a duty on the police to provide detainees information and access to a legal aid lawyer if needed. "Brydges duty counsel" refers to those legal aid lawyers who assist recently arrested individuals, usually on a summary basis.
On May 19, 2013, Mr. McKen was on contract to act as Brydges duty counsel and to provide summary legal advice by telephone to individuals who had been arrested or detained. In that capacity, he received a telephone call from R.S. (Phone Call), who had just been arrested after driving his vehicle into the patio of a restaurant in Edmonton (Incident). R.S. struck a family of four and a server. A two-and-a-half-year-old boy was killed, and everyone else who had been struck was injured. On arrest, the police demanded that R.S. provide a breath sample to determine if he was impaired.
According to Mr. McKen, the Phone Call lasted approximately seven minutes. He did most of the talking, and did not ask R.S. if he had been drinking.
McKen advised R.S. that the penalty for failing to provide a breath sample would be less than the penalty for impaired driving causing death (Erroneous Advice). Mr. McKen admitted that the Erroneous Advice was incorrect because:
1) Prior to 2008, the maximum sentence for refusing to provide a breath sample was the same as that for impaired driving. However, the maximum sentence for failing to provide a breath sample was lower than the potential sentence for impaired driving causing death or bodily harm.
2) In 2008, a new offence under section 255(3.2) of the Criminal Code of Canada (Criminal Code) was created (Refusal Following Death). This section provided that the maximum sentence for failing or refusing to provide a breath sample after a collision causing death was life in prison. At that time, this was the same maximum sentence as the maximum sentence for impaired driving causing death.
3) Mr. McKen was unaware of this change in the law.
The client ended up pleading guilty and serving time for the crime of refusal following death.
It gets worse, although not attributable to the advice
The consequences to R.S. and his family were not confined to his conviction and jail sentence. At the scene of the Incident, a mob assumed R.S. was impaired, dragged him from his vehicle, and assaulted him before the police arrived. Sometime following the Incident, R.S. was abducted from his home in the middle of the night by vigilantes who drove him to a secluded area, cut off his thumb with pruning shears, and left him unconscious in the snow. His wife was attacked by vigilantes in a shopping mall parking lot, breaking her nose and teeth.
The parties agreed that the two-week suspension was appropriate.
The incident was reported by Global News. (Mike Frisch)