Ruling impacts defence scheduling post-Jordan

The unavailability of a defence lawyer because of scheduling issues will not necessarily count against an accused in assessing whether the right to a trial in a reasonable time has been breached, a Superior Court judge in Cornwall has ruled.

Defining what is defence-caused delay is one of the issues that trial courts have been grappling with since the Supreme Court of Canada decision in R v. Jordan last summer.

“Counsel are not expected to devote their time to one case,” wrote Justice Rick Leroy in staying human trafficking charges against three defendants for a violation of their Charter rights in a case that took nearly 40 months to be brought to trial.

The main cause of the delay was a lack of Superior Court resources, noted Leroy in his ruling in R v. Albinowski et al, released on April 20.

“A symptom of the poor health of the criminal justice system in this jurisdiction is that we were unable to assign priority status to a serious case with serious consequences for the accused if convicted because the pipeline was/is full,” wrote Leroy.

Scheduling delays, especially in cases where there is more than one accused, says Toronto defence lawyer Megan Savard, has not been settled in the trial courts in Ontario when it comes to how to interpret that aspect of Jordan.

“There is a vigorous debate. I think there is a divide in the Superior Court,” says Savard, a partner at Addario Law Group LLP, who represented the Criminal Lawyers’ Association last month as an intervener at the Supreme Court in R v. Cody, which is also about unreasonable delay (the decision is on reserve).

In Cody, the criminal lawyers group argued there should be a high bar for attributing delay to the defence.

It cited a Supreme Court decision in 2009, which stated that defence lawyers cannot be expected to be in a perpetual state of availability in terms of scheduling.

The stay issued by Leroy is one of a handful of Superior Court rulings in Ontario since Jordan to examine whether unavailability for a specific time window in court should be classified as defence delay.

Bob Miller, a defence lawyer based in Cornwall, Ont. who acts for one of the accused in Albinowski, says the court did not accept the federal Crown’s position that the rules on this issue have changed since Jordan. “I think the interpretation that the Crown wanted Justice Leroy to make was that because we declined a date we were not ready. There is a difference between being available and being ready,” says Miller.

The defence should always make efforts “to keep the show moving along,” says John Sheard, a Toronto-based lawyer who represents Albinowski.

At the same time, if there is only one scheduling option offered or else a proceeding is delayed for several months, it should not necessarily be attributed to the defence, says Sheard.
“You can’t just tick a box and say the rest of the delay is defence delay,” he states.

Leroy notes in his ruling that all of the parties were ready to proceed, but two of the defence counsel could not change their schedules to have the case tried earlier in 2016 when court time “opened up ad hoc exceptionally” for reasons unrelated to any of the lawyers in the case.

“Defence counsel are bound to the solicitor-client paradigm.They do not have the option of compromising one client’s interests for another,” wrote Leroy.

Donald Johnson, a Cornwall defence lawyer who represents the other accused in the Albinowski case, says that delay issues will continue in the region without additional resources.

“With more judges and more courtrooms, we can work something out,” says Johnson.

The Public Prosecution Service of Canada has 30 days to decide whether to file an appeal of the ruling by Leroy, says spokeswoman Nathalie Houle.

She also points to a specific section of Jordan where the Supreme Court stated that if the court and Crown are ready to proceed and the defence is not, then delay from that unavailability will be attributed to the defence.

Savard suggests, though, that Leroy correctly found a distinction between readiness and availability.

“There should not be [defence] deductions of a week here and a week there just because the court had a spot available,” she says.

“It is the Crown’s job to get the case to trial,” she adds.

In the Albinowski case, the accused were not seeking to be tried separately and the judge concluded there were no exceptional circumstances that justified the delay.

Two other recent Ontario Superior Court decisions, with slightly different factual circumstances, have come to different conclusions on the best approach in assessing delay in cases with more than one accused.

In her decision in R v. Ny and Phan, Justice Michal Fairburn stayed charges against two defendants in a marijuana-trafficking case that took four years to come to trial.

Much of the delay was caused by other accused in the proceeding and Fairburn rejected the Crown’s argument that this should count against all of the defendants.

In dismissing an unreasonable delay application in January in a Toronto drug-trafficking case with three accused, Justice Michael Code urged caution in adopting the approach taken by Fairburn if delay is attributable to one of the defendants.

“I am concerned that, post-Jordan, treating delay caused by one co-accused as personal to that accused in cases where a joint trial remains reasonable and justified, will lead to arbitrary results,” wrote Code in R v. Brissett.

“It rewards one co-accused with a windfall that flows solely from the calendar and availability of another accused’s counsel,” he stated.

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