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Case overwhelming for lawyer 9/26/03
By BONNIE BELEC, The Telegram

35-year-law veteran admitted Thursday that working on Ronald Dalton’s murder appeal was like trying to push an elephant up the stairs.

“There came a point in time during my representation, and I can only describe it by quoting a line in a song by Bon Jovi, ‘pushing an elephant up the stairs’. Between illness and frustration I wasn’t getting the elephant up the stairs,” David Day testified at a commission of inquiry.

Dalton’s lawyer Bob Simmonds asked him why he didn’t just walk away from the case with the realization that he wasn’t doing Dalton any good.

“I couldn’t withdraw because I denied that I was that ill. I was so far along with the file I had to press forward. In hindsight, I should have said I can’t continue,” said Day, who is well-known for his work on the Hughes Commission.

Dalton, a former bank manager, was convicted in 1989 of the second-degree murder of his wife, Brenda, and sentenced to life in prison with no eligibility for parole for 10 years.

An appeal was launched immediately, but the 47-year-old spent eight-years in a maximum security prison before the file found its way to the Court of Appeal in 1997 with lawyer Jerome Kennedy’s assistance.

Dalton’s conviction was subsequently overturned by the appellate court in 1998 and a new trial ordered. He was acquitted in June 2000.

Day, who became involved in Dalton’s appeal in 1993, has been testifying for the past two days before the commission of inquiry headed up by Antonio Lamer, a former chief justice of the Supreme Court of Canada.

Day has told Lamer that while he was contacted by Dalton in 1993 to represent him at his appeal, an agreement for legal aid funding wasn’t secured until Nov. 22, 1994 — due in part to wrangling over appropriate funds.

But Day also told the inquiry that throughout the period he represented Dalton, November 1994 to 1997, he experienced severe ill health which at times impaired his efficiency, a condition he did not address with Dalton.

One of those bouts caused a delay in legal aid issuing the certificate.

Day sent Dalton a solicitor/client agreement April 28, 1994, which Dalton returned days later with words of encouragement contained in his letter that after five years his appeal was making progress.

However, two months later, the legal aid commission wrote Day to determine if he would be accepting the certificate.

Simmonds pointed out that correspondence shows the commission was waiting for Day’s response.

Day said he was waiting for them and that there had been a misunderstanding.

By June 9, 1994 the misunderstanding was resolved, however, Simmonds said, the certificate was still not issued because Day had not asked legal aid to issue it.

“We’re now approaching another year since he wrote you, and all that’s holding it up is a phone call for the certificate, which is crucial to get the file started. You could have phoned the commission and had it sent over to your office by courier in 10 minutes,” suggested Simmonds.

Day agreed.

“I took ill in June 1994, I ultimately was in hospital the summer of 1994, I was sufficiently rehabilitated by November 1994. Yes, somebody could have called and said send the certificate to us, but I wouldn’t have been there to honour it,” Day explained.

“I’m not discounting your illness, but I put to you you knew the only thing from continuing the deal was the signing of the certificate,” said Simmonds.

Unquestionably, Day said.

Simmonds asked Day if he though it appropriate to call for the certificate and get his associate working on the appeal, in light of his illness and the fact Dalton was still in jail.

“My preoccupation was myself. I should have called the secretary to have legal aid issue the certificate, but I wouldn’t be there to honour it. I should have called Dalton. Why didn’t I? I have pondered that. When a person is ill you go into denial, refuse to believe your health has interfered with your ability to complete work. My hope was to be on the bridge to finish the job,” Day told the inquiry.

“I didn’t notify him. I believed in him and his case. I wanted to do it. I wanted to solve it. I was wrong. I will add that what I just said applies with equal force from November with respect to my ability to live up to my responsibilities,” he said.

Simmonds asked him why he didn’t get his associate Sandra Burke to work on the file.

“It is my responsibility at the end of the day, when the inquiry looks at the delay, I was responsible, not Ms. Burke,” he said.

However, Simmonds noted in the end Burke did do some work on the file and in fact prepared a factum which she sent to Dalton in 1995, one year before Day sent the exact same document — minus Burke’s name and the date.

By the end of June 1994 there was still no legal aid certificate.

Correspondence filed at the inquiry revealed that in October 1994 legal aid, as well as Dalton, was still left wondering what was going on with the file and the certificate.

On Nov. 22, 1994, Day wrote to legal aid: “this firm agrees, effective today, to accept a certificate from the Newfoundland Legal Aid Commission to represent Ronald Dalton on his appeal.”

The certificate was issued three days later and honoured by Day in January 1995.

Following the day’s proceedings, Simmonds said the issue with Day was not the time he spent on the file, his research or even the money he spent out of his own pocket, “it was his conduct or carriage of the file did not produce any useful result, or a very limited result.”

“He did not properly deal with Mr. Dalton, he did not advise Mr. Dalton of relevant concerns and issues which were retarding the progress of the file such that, as we heard today, that he purposefully did not sign the certificate from the period June 30 up until January the following year … he should have then reassessed his position but that went on until finally out of absolute exasperation Mr. Dalton on April 3, 1997 contacted Mr. (Jerome) Kennedy,” he said.

The inquiry continues today.