“What impression does the public take about the state of justice in central Alberta when defence counsel can be thrown into custody for such a trivial reason?”
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A Red Deer judge whose dispute with a defence lawyer ended in the latter being jailed admitted he should have done more to “de-escalate” the situation.
Justice Gordon Yake of the Alberta Court of Justice offered a qualified apology to George Lebessis Friday for having him jailed during a trial on Nov. 8.
As dozens of lawyers watched from the court gallery — and more than 200 tuned in via video conference — Yake said that while he had concerns about Lebessis’s conduct, he would not cite him for contempt of court.
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He did, however, chastise Lebessis for leaving the courthouse without permission after his 10- to 15-minute stint in the cellblock.
“I have never seen or heard of counsel abandoning their client in that fashion before Nov. 8 of this year,” the judge said. “I was shocked.”
That issue is best addressed by the Law Society of Alberta, which can cite lawyers for unprofessional conduct, Yake said.
Subpoena issue
Tensions between Yake and Lebessis boiled over during an assault trial on Nov. 8. The issue was the absence of a police witness, who Lebessis planned to call as part of the defence case. Lebessis said the Crown agreed to subpoena the witness, though there was no formal written agreement besides a vague note on the file given to the prosecutor in court that day.
Yake repeatedly asked Lebessis if the previous Crown had told him verbally that he would subpoena the witness. Lebessis said he could not say for sure and needed time to research what was said. The two men repeatedly spoke over each other during the back-and-forth, with Yake eventually raising the prospect of finding Lebessis in contempt and ordering him into the courthouse cells.
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“OK. Then bring me into custody,” Lebessis replied.
After a few seconds of exchanges, Yake instructed the sheriff to “take him away.”
Lebessis was later allowed to return to the courtroom, where the Crown said his colleague admitted during the break that he had agreed to subpoena the police officer. Lebessis then asked for a mistrial over issues with missing witnesses, which Yake denied. When he asked to be removed as the accused’s defence lawyer, Yake offered him five minutes to consult his client.
Lebessis then left the courthouse, telling the accused he would need to find a new lawyer. Yake, taken aback, ordered him to return to court on Nov. 22.
‘Injudicious behaviour’
Friday’s hearing began with submissions from Lebessis’s lawyer, Paul Moreau, president of the Edmonton Criminal Trial Lawyers’ Association.
He said Lebessis apologizes for leaving court that day and acknowledges doing so was wrong.
However, Moreau urged the court to consider the “context”: he was “thrown in jail by the court’s direction.”
“It was on a human level entirely understandable,” Moreau said, accusing Yake of “injudicious behaviour” and arguing Lebessis was “illegally detained.”
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After a review of the case, Yake acknowledged he should have handled the situation differently. He maintained, however, that he asked Lebessis a “very simple” question and Lebessis did not ask for a break to confirm what was said — which Lebessis disputes.
“After much thought,” Yake concluded he should not have raised the prospect of jailing Lebessis. He said his job is “to keep everybody’s elevator at the first floor” — not to “elevate” tense situations further.
“I take full responsibility today for not meeting that standard,” he said. “I strive to meet that standard, but I’m not perfect … I take responsibility. The buck stops here.”
Lebessis expressing a willingness to go into custody should have been a “red flag,” the judge said.
“I should have said, ‘Time out. Let’s take a break.’”
Yake concluded: “Given the context, I have decided it would not be appropriate to cite him in contempt for his actions in court on Nov. 8. To the extent I’m responsible for this matter getting out of hand, I apologize.”
Moreau said while Lebessis does not entirely agree with Yake’s version of events, the apology was “acknowledged and appreciated.”
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After court, Moreau said the case attracted the attention of defence lawyers across Canada and raised important questions about the rule of law.
“Defence lawyers have a difficult and often unpopular job to do,” he said. “But that does not mean we are any less deserving of respect from the public or the bench … What impression does the public take about the state of justice in central Alberta when defence counsel can be thrown into custody for such a trivial reason?”
Friday’s hearing concluded with a new defence lawyer taking over the assault case.
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