Monday, 24 October 2016

The right to a speedy trial 

Over half a century ago, I gave shelter to a friend being looked for by the police. I only had to wait three days in jail for my trial. In the ninety nineties when I was still practicing law, I represented clients who had to wait as much as a year before they got their trials. Then the Supreme Court of Canada in a decision by that court put an end to those delays. The court stated that the unnecessary delays were in conflict with section 11(b) of the Canadian Charter of Rights and Freedoms that guaranteed speedy trials for everyone.

After that decision was handed down by that court, those of us representing clients who waited a long time for their trials would bring in a motion to stay the proceedings permanently along with our client’s sworn affidavits stating that the delays caused great anxiety and financial problems et cetera for them. The cases would then be stayed and our happy clients smiled as they walked out of the court rooms.

Then the courts decided that the motions and affidavits were not really that necessary any longer and as soon as we told the court how long our clients waited for their trials, the judges would automatically stay the proceedings. Then when the list of persons having waited unnecessarily for their trials grew into thousands upon thousands, the courts were free to stay the proceedings of those thousands of accused persons without them actually being aware of it before they got to court. When the court list of long delays was finally done with and the courts were no longer overwhelmed by so many cases in which they would be stayed, Those freebies were then gone forever. 

Alas, while we are in the mid part of the second decade of this century, the courts and the accused persons are back into that previous era where accused persons are still waiting unnecessarily long for their trials.

I retired from the practice of law in 2006 however last spring (2016) I represented a friend who had waited for three years for the police officer’s notes. I brought to the court the motion and sworn affidavit but it wasn’t actually needed. At the previous hearing I told the officer that the case would be stayed as soon at the court read the documents. He knew that I was right so he didn’t bother attending the court. The prosecutor told the judge that he had no case to present to the court. The case against my friend was subsequently dismissed.

I also represented another friend who waited a year for his trial. He was charged with making a left turn without using his signal lights. Unfortunately, his only witness moved from Canada and returned to Europe three months before the trial.  I then submitted to the prosecutor’s office and the court administration office my motion and my friend’s sworn affidavit to stay the proceedings against him. The prosecutor told the judge that he had no qualms about the matter being adjourned so that the witness could return to Canada to attend the trial.

I said to the judge, “Your worship. The maximum fine is so small, would the prosecutor if he was in my friend’s shoes, be willing to pay several thousand dollars in air fare and hotel expenses to fight a charge that where the fine is less than a hundred dollars? “  The case was stayed.

Supreme Court Justice Michael Moldaver wrote for the majority in a decision (Regina v Jordan—a  2016 case) slamming complacency towards delays in the Ontario court system.

 As the months following a criminal charge become years, everyone was suffering. Now the new rules have been established by the R v Jordan decision to ensure that accused persons get a trial within a reasonable time. Needless to say, this has left courts all across Canada scrambling to deal with a new reality—all accused persons are entitled to a speedy trial. 

Instead of trying to figure out whose fault the delay was, the Supreme Court determined that cases at the provincial court level shouldn’t take longer than 18 months and cases at the Superior Court level shouldn’t take longer than 30 months from the time charges were laid. I see a problem with that ruling. Here are two examples.

1:  The accused keeps delaying the process because his only witness is no longer living in Canada and his lawyer has sent an investigator to a small town in France to find the witness.

2:  The prosecutor keeps delaying the process because his only witness has not fully recovered from the brain injury caused by the attack.

As a result, lawyers say, relatively minor charges may be less likely to be thrown out, but in a dramatic change,  cases as serious as murder are now in jeopardy.

The Supreme Court added that a delay that is attributable to or waived by the defence does not count towards the presumptive ceiling.

The court said in part that;

 Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.

It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

If the exceptional circumstance relates to a discrete event (such as, for example, an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable and no further analysis is required.
In exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay. This could include a shortage of judges, courtrooms or a witness that is too ill to testify until a later date.

Below the presumptive ceiling, however, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases.

 As to the first factor, while the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.

Turning to the second factor, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. These requirements derive from a variety of factors, including the complexity of the case and local considerations. Determining the time the case reasonably should have taken is not a matter of precise calculation, as has been the practice in the past.

For cases currently in the system, a contextual application of the new framework is required to avoid repeating the post‑Askov situation, where tens of thousands of charges were stayed as a result of the abrupt change in the law. Therefore, for those cases, the new framework applies, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. unquote

In Alberta, a first-degree murder charge was stayed after the case took more than five years to get to trial. The Ontario Court of Appeal recently stayed a conviction for assault causing bodily harm in a case that took five-and-a-half years.

Those two cases were far too long for anyone to wait to give testimony, especially witnesses. Memories fade as time goes on.

At present, prosecutors and defence lawyers are concerned that an increasing number of motions claiming delay under the new rules are being filed and have yet to be heard.

The Jordon decision has created uncertainty and problems. For example, lawyers may file unreasonable delay motions out of concern over being negligent later for not doing so and in doing so, the process will take up court resources adding temporarily to more delays. “Everyone is scrambling to find the best way to handle the transitional cases that began before the decision in Jordan.”

Another example will come in December of this year when a court will hear what may appear as an unreasonable delay motion in a high-profile sexual assault case involving three Toronto police officers accused of raping a fellow officer in a downtown hotel room in January 2015. Subsequently, their trial is set for the end of May next year. That means that all the parties to the crime have to wait two years and five months.

Their argument is that the case took longer than 18 months in the provincial courts. A preliminary hearing had been set for July 2016, but was cancelled when the Crown chose on June 30 to proceed directly to trial – a move known as a direct indictment.

A direct indictment requires the consent of the Attorney General and is rarely used – but may become more frequent as Crowns face pressure to keep cases under 30 months.

A spokesperson for the Ministry of the Attorney General says they are taking several steps to reduce delay, including a review of cases to ensure that those in jeopardy of being tossed are dealt with proactively.

The efforts “will not only help it complete cases as efficiently and fairly as possible, they will actually demonstrate Ontario’s commitment to ensuring that everyone’s right to be tried within a reasonable time is respected and upheld.”

The benefit of time limits for the beginnings of trials is that people will at least know how long they have to wait for the trials to begin.

The 18 month ceiling for a provincial court case is actually a longer period of time than was typically acceptable under the previous guidelines..

One of the questions on many person’s minds is will special attention be given to accused persons who are in custody?  In my opinion, this should take top priority.

Previously the courts would look at the impact the delay had on an individual – but that is no longer a key factor in determining whether delay is unreasonable. People who are in custody may have to wait longer for their trial if their cases are treated the same as people who are out of custody. This seems fundamentally unfair.”

The Jordan decision loomed large when Dellen Millard who has been charged with first degree murder of Laura Babcock asked on October for the court to postpone his trial.

Justice John McMahon noted that the delay would be unreasonable to both Millard’s co-accused Mark Smich and the Crown but he allowed the February 2017 trial to be moved to September 2017 at the latest.

An area that remains murky is which cases will be allowed to exceed the time limits that had been described by the Supreme Court of Canada as particularly or exceptionally complex cases.

Whether that will include cases that require lots of technical work such as child pornography cases or cases with a huge amount of documentation and often several accused people, such as wiretap cases, remains to be seen.

It’s also unclear how cases involving charges under the Occupational Health and Safety Act (OHSA) or the Environmental Protection Act (EPA) will be affected; especially when corporations are involved.

Previously in the judges’ views, corporations tend not to be impacted by delay in the same way people are however the impact of the delay is no longer a factor under the new rules.  Generally it has  not been unusual for similar quasi-criminal or regulatory cases to take much longer than 18 months.

Such a case is before the courts now that is a lumbering and multi-faceted trial that stemmed from the death of a British drum technician named Scott Johnson, who was killed when a stage collapsed at the Downsview Park hours before concert began. That was more than four years ago.

In the wake of the Jordan ruling, concert organizer Live Nation and engineer Dominic Cugliari—both having been charged for the stage collapse under the OHSA; their lawyers applied to have their charges stayed because the trial is taking too long. At this point, it’s been more than three years since the charges were laid.

Arguing in a Toronto courtroom,  Live Nation’s lawyer, Jack Siegel, said the length of the trial is “so far beyond the pale it simply can’t be justified.”

David McCaskill, the lawyer for the Crown, countered that the applications are “opportunistic” and argued that the new decision shouldn’t apply to the case because the defence lawyers didn’t bring up the issue of an unreasonably delayed trial until after the Jordan ruling.

That is an interesting point. If the Supreme Court hadn’t made its ruling, would the lawyers for the defendants still remained silent about the long delay of the trial?

McCaskill said, “You can’t stand up at the eleventh hour and complain that your rights have been violated.  “This isn’t a traffic ticket. This is something of great consequence.”

In the criminal courts too, the impact of the Jordan decision is already clearly visible. Crowns and judges are actively pushing cases forward– sometimes even when the defence does not yet have all the information. That in my opinion is wrong.

A very concerned factor in the delays of trials is the shortages of judges. As early as 2007, the chief justice of Ontario's Superior Court was warning that a shortage of judges at courthouses across the province could lead to criminals being freed without being brought to trial. Justice Heather Smith said if more judges are not appointed soon to replace those that are retiring, cases could start being tossed out,  Wait times for criminal trials in Ontario had been "dangerously extended" because of the federal government's failure to fill judicial vacancies on the province's Superior Court.

There are now 61 empty seats on federally appointed Superior judges across the country, more than at any time during the previous administration. The lack of judges has exacerbated access problems and court delays that were already posing a threat to fair process and public safety.

In 2013-2014, the median completion time of a case before superior courts was 514 days. It’s not unheard-of for cases to carry on for upwards of five years. Such delays jeopardize the constitutional rights of both victims and the accused to justice within a reasonable period of time.

In May of this year, at least two sexual assault trials in Calgary had been delayed due to the ongoing critical shortage of judges in Alberta. Some criminal trials are now being booked into early 2018 which is more than the standard recommended by the Supreme Court of Canada from the time of arrest to the time of trial. Canada's justice minister says she's aware of the growing shortage of federally appointed judges in Alberta that has been deemed a "crisis," but could offer no immediate timelines on how to address it.

From the time of the charge being laid to the actual or anticipated end of trial, the delay is presumed to be unreasonable, unless exceptional circumstances justify it. Would a shortage of judges warrant an extensive delay? That hardly seems appropriate.

Hopefully, in the future, trials of all kinds will begin and end expeditiously. The rights of those caught up in the justice system depend on it.

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