Law Times

PAGE 4 NEWS December 5, 2011 • Law Times New trials ordered in four appeals Continued from page 1 documents or fi ling, for ex- ample. But now, the portion of time after a trial is set could also be considered part of this neutral time, too. So, essentially the clock starts ticking a lot later than usual." Th e Lahiry ruling involved four separate cases dealing with drinking and driving. Th ree of the four Crown appeals were ar- gued together, and the fourth, R. v. Shelson, was argued shortly after. Th e four diff erent trial judges in each case stayed the proceed- ings after ruling there were viola- tions of the accused person's right to trial within a reasonable time as per s. 11(b). Th ese violations involved delays of seven to 11 months in all four cases, the trial judges found. But in his ruling, Code set aside the four stays on appeal and ordered new trials. Th e trial judges, he noted, considered the entire period from the set-date appearance to the trial date in the calculation of institutional delay. But in Code's view, institutional delay begins only when "it is fi rst established when counsel were ready to try the case." In Lahiry, the accused was 35-year-old non-practising law- yer Prosenjit Lahiry. He was ar- rested on Dec. 27, 2009, for re- fusing to give a breathalyzer test. Two days later, he was released from jail and charged. From Dec. 29, 2009, to Feb. 9, 2010, a total of two months, both the Crown and the de- fence were carrying out normal pretrial duties such as retain- ing counsel and gathering evi- dence, Code noted. Th e trial judge ruled there was a six-week period of in- stitutional delay during that time when the Crown could have gathered evidence faster. But Code said the entire two- month period fell within the neutral intake period for cases. From Feb. 9, 2010, to March 3, 2010, preparations continued for both the Crown and the defence. Th e defence noted it was ready to set a date for a trial. Both Code and the trial judge agreed this was part of the neutral delay period and didn't count toward any institutional delays in the case. From March 3, 2010, to April 23, 2010, both the Crown and defence continued to prepare for trial. A trial date was also set for Feb. 28, 2011. Code ruled that although a trial date had been set at this point, it was still reasonable to allow for a one- to two-month window for further prepara- tions until the defence was ab- solutely ready for trial. Th e trial judge disagreed and found this time period to be part of the in- stitutional delay. From April 23, 2010 to Jan. 28, 2011, both the Crown and defence were ready, but the Court wasn't. Both judges agreed this was institutional delay. Th e total time between charge and trial was roughly 14 months. Th e trial judge ruled institutional delay accounted for roughly 11 months of this. Code, however, ruled other- wise. He concluded there were only nine months of institutional delay from April 23, 2010, to Jan. 28, 2011. In his view, the additional two months were part of the normal intake and neutral delay periods. Although a trial date had been set, it was reason- able to count the two months as normal preparation time for the defence and Crown, Code wrote. In each of the cases, Code ordered the accused to appear within 30 days. "I think it's a refl ection of the courts being so busy," Brown says of the court's ruling. "Th ey're hav- ing to fi nd diff erent ways to cope. Twenty years ago, they found a way to access cases faster, but it appears they have taken a step backward in that area with this." Frank Addario, former presi- dent of the Criminal Lawyers' Association, had a similar reac- tion. "It should not take a year for a simple drunk driving case," he says. "When it does, it twists the understanding of what a speedy trial is. It is the direct re- sult of business decisions being made to allocate less resources than required to the adminis- tration of justice. Instead of re- sponding to that problem, the courts have been understanding and fl exible about that business decision." Staff received surplus notices Continued from page 1 judicial scheduling, provide secretarial support for masters and in-court support for masters' hearings," said Crawley. "Courtroom registrars will continue to support masters' hearings. As a result of this realignment, though, some cur- rent masters' administration staff have received surplus no- tices." Marr, however, doesn't quite believe the government's as- sertions that not all registrars will lose their jobs. He says a move to remove the positions could create signifi cant problems for the civil justice system, particularly in Toronto where many of them work. "Th ey have signifi cant expertise in the Rules of Civil Procedure and help to manage complex multiparty cases and Construction Lien Act matters. Th ey also conduct settlement conferences and handle the majority of procedural matters." Th e layoff s aren't the only matter between the masters and NEW EDITION FEDERAL COURTS PRACTICE 2012 BRIAN J. SAUNDERS, DONALD J. RENNIE, AND GRAHAM GARTON Written by a well-respected team of authors, Federal Courts Practice 2012 is a comprehensive guide to the laws that govern the Federal Courts, with insightful commentary and cases. NEW IN THIS EDITION • Commentary on recent developments in Federal Courts practice • Case commentary on the Federal Courts Act and Rules • Examination of the choice of procedure mandated by the Supreme Court of Canada's decision in Canada v. TeleZone Inc. • Cases and commentary on the Federal Courts Immigration and Refugee Protection Rules, as well as sections 37 to 39 of the Canada Evidence Act BONUS FOR STANDING ORDER SUBSCRIBERS – INTRODUCING PRACTICE ADVISOR Standing order subscribers to Federal Courts Practice 2012 are entitled to receive Practice Advisor at no extra cost, upon request. Derived from decisions published in Carswell Practice Cases, this exclusive quarterly email service will keep you current on all signifi cant topics, decisions and changes. It also includes the most up-to-date information on statutory and regulatory changes. ORDER # 983580-61737 $140 Hardcover November 2011 approx. 1,500 pages 978-0-7798-3580-5 Annual volumes available on standing order subscription Practice Advisor available upon request on standing order subscription Multiple copy discounts available AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 the provincial government right now. In December of last year, the provincial government appealed a Superior Court judge's ruling that said the pay and terms of offi ce for case manage- ment masters were unconstitutional. In that decision, Justice Terrence Platana ruled two portions of the Courts of Justice Act incorrectly breached judicial independence. He went on to suspend the declaration of invalidity for 12 months to "al- low the government to make legislative changes to create an independent, eff ective, and objective process for determining the remuneration and tenure of case management masters." Th e matter moved on to the Ontario Court of Appeal earlier this year. Th ere, the Crown sought an order to set aside the remuneration-related elements of Platana's judg- ment and, if it failed, an extension of the stay period to 12 months from March 3 of this year. But in a ruling earlier this year, the Court of Appeal found that the "application judge was correct to conclude that the current process for setting the remuneration of case management masters was unconsti- tutional" and extended the suspension of the declaration of invalidity for 12 months following the date of its decision. In the meantime, Marr says he hopes the provincial govern- ment will work with legal organizations to come up with so- lutions to the registrar issue. "We all pick up the paper every morning and see the economic news," he says. "So we under- stand the provincial government's concern for savings. But if savings do have to ultimately be found, it's my opinion that the government should consult with the bar association, masters, and other members to ensure masters are minimally disrupted and that the most effi cient delivery of justice to the citizens of Toronto is met. Th ere may be effi ciencies we've thought of that they may have not even considered, so it's important that there's room for collective discussion." www.lawtimesnews.com

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