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January 16, 2012

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PAGE 2 NEWS January 16, 2012 • Law Times Cases hint at reasons for project's struggles Judges cite disclosure, lack of resources as factors in Justice on Target's difficulties BY KENDYL SEBESTA Law Times hind the slow progress of the Jus- tice on Target project, two recent court rulings reveal. Judges in a few recent Ontario A cases hinted at some of the rea- sons why Justice on Target has struggled. In doing so, they struck a blow to police and the Ministry of the Attorney General in blam- ing a lack of resources and poor planning for the recent uptick in s. 11(b) motions that have been clogging Ontario's court system. The rulings come as Law Times reported last week on lacklustre results so far from the project. While it aims to reduce court appearances and the time it takes to dispose of criminal ctions by police and Crowns and a lack of court resources are among key factors be- noted dissatisfaction with the project among Crown prosecu- tors as well as others working in the courts, including judges. Many complained about a lack of resources and staff to support the project. In two cases last month, On- tario Court justices Howard Chisvin and Jack Grossman stayed convictions in separate criminal matters where the ac- cused successfully argued vio- lations of their s. 11(b) rights The Justice on Target project seemed more like a 'campaign to the public,' says Joseph Neuberger. cases by 30 per cent by June of this year, a review of the proj- ect at five Toronto-area court- houses obtained by Law Times shows it's far from reaching its goals. In particular, the review under the Charter of Rights and Freedoms due to delay. In R. v. De La Torre, Chisvin pointed to slow-moving dis- closure of critical evidence by police in Newmarket, Ont., and foot-dragging by the Crown at- torney as a significant cause of delay. He noted it took them sev- eral months to provide proper disclosure of critical DVD evi- dence despite counsel's request for it in advance. Miguel De La Torre had been facing charges of impaired driv- ing and over 80 since October 2010. Most notably, Chisvin found the Crown and defence to have contributed to an ad- ditional 110 days of delay while waiting for the DVD recording of De La Torre's breathalyzer test during his arrest. In the reasons for his judg- ment, Chisvin clearly expressed his frustration with this. "No one has suggested that this mat- ter was anything beyond what is unfortunately known as a run of the mill impaired over 80. That means that virtually the entire investigation was complete by the time Mr. De La Torre was released form the police station." Chisvin isn't alone in his criti- cism. Grossman reached a simi- lar conclusion in R. v. Mahmood last month. In his ruling, Grossman stayed the proceedings against Mubshar Mahmood aſter ruling lengthy delays in the taxi driver's case were the fault of Crown attorneys who had been searching for vid- eo footage of the inside of his cab that turned out not to exist. Mahmood had been facing charges of sexual assault and forcible confinement since June 2010. The case took 15 months and 18 days in total. The mat- ter included 317 days of insti- tutional delay caused by sev- eral adjournments as the Crown searched for the non-existent video footage. "It should not take months to find out that the video sought . . . does NOT, in fact, exist. If it did, it is critical disclosure," wrote Grossman, who noted the effects of such issues on efforts like Jus- tice on Target. "The focus of the Justice on Target program is to reduce court appearances. Fail- ure to provide critical disclosure increases appearances." But at least one Toronto crim- inal defence lawyer says these types of criminal cases are unique and that blame shouldn't fall sole- ly on Crown attorneys or police. "In the vast majority of crimi- nal cases, disclosure is provided on a fairly consistent basis," says Joseph Neuberger, a criminal defence lawyer at Neuberger Rose LLP. "Usually, by the first few ap- pearances we receive disclosure in the majority of cases. There are a few anomalies, however, like federal Crown cases or ex- tremely complicated cases, but by and large the Crowns do a good job." Chisvin, however, noted the UNCOVER THE DETAILS OF A CASE FROM EVERY ANGLE Litigator Powerful Insight for Compelling Arguments Litigator from Westlaw® Canada combines litigation-focused research with practice tools to support your strategic decisions and automate your most laborious tasks. Litigator contains Canada's largest collection of online court documents – more than 100,000 skillfully drafted pleadings, motions and facta from leading Canadian cases. Get Better Results Faster with Westlaw® Canada Call 1-866-609-5811 or visit www.westlawcanada.com growing pressures in Newmar- ket and made reference to con- cerns about the lack of resources to move cases along quickly. He quoted the case of R. v. Chou in May, in which Ontario Court Justice Ronald Minard noted that Justice on Target "did not involve the creation of any more courtrooms or the increase in any number of the complement of judges to actually handle the cases or increases in the number of Crown counsel to prosecute cases and the like but dealt with administrative changes." Added delays have been the result, according to Chisvin. "Indeed, we are, in this juris- diction now setting many trials into the year 2013," he wrote. Neuberger echoes that con- cern, noting the Justice on Tar- get project seemed more like a "campaign to the public" than a real overhaul of the system. "Prior to [the project], in fact, I didn't think that the courts were doing a bad job. Where it fails is with the resources and the fact that there is very little of them. I don't think the program resulted in significant change. I mean it was just politics really." LT www.lawtimesnews.com

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