Slow, Canada

The excellent blog CriminalReview.ca is back from its summer hiatus with two interesting tales about the role of Canada’s Charter in criminal trials.

The simplest story concerns Toronto’s ongoing mega-terror trial (not to be confused with Melbourne’s almost-finished mega-terror trial.) The ten adults accused in that trial (down from an initial 18) have been on remand since June 2006 and it seems that they’ll stay that way until at least 2009. According to the CBC:

The 10 adults accused of plotting a militant attack in Toronto all appeared in a Brampton court on Tuesday as the judge began hearing defence motions claiming the way the case has proceeded violates the Constitution. The motions are expected to take the court the rest of the year to hear.

This disturbingly slow process for assessing (presumably) Charter matters is made all the more disturbing by an earlier Charter tale from the late 1990s.

Here’s the overview from the eventual appeal judgment:

[P]olice arrested the respondent in connection with Mr. Foster’s death on August 25, 1995. Following a bail hearing on September 15, 1995, the respondent was detained in custody. She remained in custody until a stay of proceedings was entered four years and two weeks after her arrest. Prior to the commencement of pre-trial motions on September 29, 1997, the case proceeded relatively uneventfully. However, shortly before the commencement of pre-trial motions, the respondent discharged lead defence counsel and Mr. Kevin Murphy assumed carriage of the defence. Based on the original time estimates, it was anticipated that pre-trial motions would last about two weeks and that, by the end of 1997, the trial would be completed. However, Mr. Murphy brought further pre-trial motions in addition to those that were originally planned with the result that pre-trial motions were not completed until December 17, 1997. The trial proper commenced in Brockville on January 27, 1998. However, on February 13, 1998, after less than nine full days of evidence in front of the jury, defence counsel embarked on a voir dire relating to an unproduced original will-say statement from Constable Laderoute. The trial proper never resumed.

Between February 13, 1998 and September 7, 1998 defence counsel brought three mid-trial applications for a stay of proceedings and numerous sub-applications in pursuit of an evolving theory that, at the behest of O.P.P. case-manager Detective Inspector Lyle MacCharles and with the tacit approval of Crown counsel, police investigators engaged in a conspiracy to concoct evidence and develop a case that could result only in the respondent being convicted. The respondent now concedes that the evidence adduced during the course of the proceedings not only failed to establish defence counsel’s theory, but it also did not justify embarking on many of the applications that ensued. However, on September 7, 1999, after nineteen months of voir dires, the trial judge accepted defence counsel’s theory and entered a stay of the proceedings.

Justice Paul Cosgrove found no less than 150 Charter breaches by the cops. But – and here’s the kicker – the Court of Appeal found that Cosgrove got virtually every one of those decisions wrong!:

The evidence does not support most of the findings of Charter breaches by the trial judge. The few Charter breaches that were made out, such as non-disclosure of certain items, were remedied before the trial proper would have commenced had the trial judge not entered the stay of proceedings. The trial judge made numerous legal errors as to the application of the Charter. He made findings of misconduct against Crown counsel and police officers that were unwarranted and unsubstantiated. He misused his powers of contempt and allowed investigations into areas that were extraneous to the real issues in the case.

Indeed, the trial judge is every one of James Allan’s nightmares (or is that dreams) come true. His adventures included:

  • Allowing the defence to call eight Crown counsel as witnesses(!)
  • Ordering various Crown counsel not to communicate with other Crown counsel
  • Finding that Crown counsel had breached the Charter merely by opposing defence motions
  • Questioning the legality of the Crown hiring counsel from the private bar (in response to his prior attack on the independence of publicly-employed Crown counsel from the state!)
  • Making findings of deliberate deception by the Crown about matters that were immaterial to any issue in the trial
  • Threatening to charge people with contempt for inadvertent misunderstandings
  • Threatening a stay of proceedings due to (alleged) perjury on a non-material issue
  • Criticising a Crown Counsel for saying (in a voir dire) that the prosecution wouldn’t be happening unless he thought the accused was guilty
  • Finding breaches of prosecutional disclouse in relation to irrelevant materials
  • Making numerous findings about the conduct of public authorities that could have no impact on the fairness of the trial. The Court observed:
  • The Charter of Rights and Freedoms has introduced additional complexity into our system. Trials can take longer and put greater demands upon the administration of justice. That is the price we must pay for ensuring that accused are dealt with fairly and in accordance with the principles of fundamental justice. However, the Charter has not so transformed our system of justice that a criminal trial becomes an excuse for inquiring into all the ills of society. The trial judge should not, for example, have permitted forays into the immigration system, funding for halfway houses, funding for the Centre of Forensic Sciences and the relationship between the Crown and Bell Canada. And, needless to say, the trial judge was in error in finding that the respondent’s Charter rights were violated because of perceived misconduct in relation to these extraneous matters.

    At the Crown’s appeal against the stay, the accused disavowed the judge’s approach completely. However, with considerable chutzpah, she argued that she should nevertheless be granted a stay on the basis of delay caused by her (then) counsel’s motions:

    In a nutshell, the respondent now concedes that her trial counsel was responsible for most of the delay occasioned after the commencement of her trial in the Superior Court. She seeks, however, to disassociate herself from his conduct and urges us to find her blameless. How does she do that? Quite simply, she maintains that unbeknownst to her, her trial counsel was incompetent and it would thus be unfair to characterize his actions as her actions. To the extent that she may have instructed him to proceed as he did, she should not be held responsible because her instructions were given under the mistaken belief that she was receiving effective legal assistance. Had she known that the motions brought by him were, for the most part, frivolous and vexatious and utterly without merit, she would not have countenanced them; nor would she have acquiesced in the long delays occasioned by these motions at the expense of her right to be tried within a reasonable time.

    All up, quite a case study for the anti-Charter movement. But, don’t forget to note the following:

    • The Court of Appeal reversed the stay
    • The Court of Appeal rejected the respondent’s delay argument
    • The judge is now the subject of an inquiry by Ontario’s Judicial Council and faces removal

    As for the terror trial, time (and lots of it) will tell whether the story is similar…

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