Law Times

LAW TIMES / JUNE 2, 2008 FOCUS PAGE 11 'A day is not a day' in our courts, says lawyer BY GRETCHEN DRUMMIE Law Times not a day," says a veteran Toron- to lawyer. In fact, he says a day is actually four hours and 38 min- utes — if you're lucky. And then that "day" turns into another "day" months later, in a system that's chronically backlogged. From the trenches, Joseph W Neuberger tells Law Times that in the past number of years there has been "strong encouragement" to estimate trial time more ac- curately to prevent needless con- tinuation of trials and streamline the process, that way preventing against 11(b) applications. "So, many of us in the de- fence bar try really hard to es- timate what the real timing is," says the partner of Neuberger Rose LLP. For example, he says a simple trial with an expert and two witnesses could be done in four hours. But, if you book it for four hours, "what will happen is there will be other matters in the courtroom; there will be a guilty plea, there might be another tri- al, because the way the days are assessed are somewhere between six and eight hours, so a day is six to eight hours according to whoever sets the schedule," says Neuberger. "But, the reality is a day is not a day; it's not really six or eight hours. hen it comes to crim- inal trial estimates these days, "a day is "If you actually anecdotally take a look at what trial time really is, courts that start at 10 a.m., have a break by 11:25 a.m. to 11:30 a.m.; you come back at quarter to 12 a.m. to 12 p.m., if not later; you sit maybe until 1 p.m.; you come back at 2:15 p.m., sometimes 2:20 p.m.; you take another break at 3:15 p.m.; and then it's 3:45 p.m. and you realize you're not going to finish today so you had better run off to the trial co-ordinator to get the continuing dates; you come back at 4 p.m. and if your court is ending at 4:30 p.m., that's it. You're looking at, by my esti- mate, 4 hours and 38 minutes of real trial time, so a day is not really a day." Certainly not if your trial is also shoehorned in after other matters, he adds. And just try and get an early date for a so- called one-day trial, he says. Neuberger says he's noticed lately "when you set the one- day, that comes back as a Crown argument on an 11(b) applica- tion. I've had a number of cases where it's been 12 or 13 months to get to trial, no delay on the defence part, pure nine-to-10- month institutional delay, and the Crown's argument is, 'The defence, in particular the defen- dant, wanted a full-day trial, and therefore they had to wait longer for a full-day trial than had they booked it for four hours, and we could have offered them earlier dates.' The problem is that pre- to be ordered, at the client's ex- pense, so the busy lawyer can read them just to remember where the trial was when they stopped. So why not book it for two Joseph Neuberger says a day in court is really four hours and 38 minutes, not six to eight hours. sumes four hours is really four hours, and that a day is really a day, and it's not. Four hours would never be four hours, be- cause we know they'll jam the court up with other matters." The Crown's argument has been "gaining a bit more traction, and I just don't think it's legitimate." Neuberger says if you sched- ule a trial for four hours in the first place, the reality is the matter will probably be reached late, and not finished that day, and then a second day has to be chosen; the expert has to be paid for two days; so does the lawyer; witnesses have to be subpoenaed or dragged back and "nobody is happy." Meanwhile transcripts have Q. Why Does the legal profession trust Martin's? A. Analysis and commentary from renowned authors you won't find anywhere else Martin's Annual Criminal Code, 2009 Edition Martin's Annual Criminal Code is the most current and authoritative resource available accessing decisions from all court levels, including more reported and unreported cases than any other Code. It includes supplements (including statutory updates and recent amendments), Forms of Charges and an Offence Grid. 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In this latest edition benefit from a comprehensive review of: • the Criminal Appeal Rules • the Criminal Proceedings Rules of the Superior Court of Justice • the Rules of the Ontario Court of Justice in Criminal Proceedings • relevant sections of the Provincial Offences Act • regulations governing appeals under the Provincial Offences Act Hardbound & CD-ROM • 1,088 pp • Published July each year Standing order (includes free supplements) $91 • P/C 0654140000 Current edition only $96 • P/C 0654010999 • ISSN 1188-9640 1955 to Present MARTIN'SONLINE Criminal Code CA019 CA019 (LT 1-2x5).indd 1 MARTIN'S days up front? "If you book it for four hours then it becomes a two-day matter; if you book it for one day as it should be, then you have a better chance of being heard, but not always, be- cause the reality is that one day is not really a day. It's not six to eight hours; it really isn't. When it comes to booking for more, which I've done, they come back at you and say, 'This is not a two-day case, it's a day-and- a-half case, maybe you're over- estimating it,' and they discour- age it and put things on record to indicate you're asking for longer time, ergo it's going to be longer in the future because you want a day-and-a-half and somehow maybe the defence is involved in creating more delay, and that's not really the case, it just isn't," says Neuberger. He says the issue has an im- pact because there is so much go- ing through the system. "Part of the argument has been in recent years that the defence, in many cases, are bringing unmeritori- ous Charter applications which unduly complicate matters and cause delay. There may be legiti- macy to that, but there's equally a concern about the way cases are screened, the way they're set down by Crown attorneys and what are proper estimates of time, because it also impacts." He thinks some of the trouble is rooted in inaccurate timing on the part of the Crown and "cer- tain cases which are being sent to trial which shouldn't be, which probably should be screened ei- ther to be withdrawn or dealt with in a much more lenient manner. We're seeing more and more backup happening now at Old City Hall and in other jurisdictions . . . It's not just a defence job to be careful about what applications you bring. I think we all have to co-operate, the Crown, defence, and the court, in trying to find a more streamlined approach to getting cases to trial quicker and more efficiently." Neuberger says over the past 18 months he's seen more con- tinuations than normal and he thinks the system is simply "overburdened. But we all have a role to play and we have to do an accurate job of picking trial time, both the Crown and the defence, and not blame the defence when we book a day be- cause it really is four hours and 38 minutes worth of trial time, and not deluding ourselves that a day is really eight hours, because it just doesn't exist." He adds that in the last year he's had two cases with serious Charter violations "where I was told every which way from Sun- day that they're viable prosecu- tions, and on the day of trial they See Courts, page 12 With annotations by Edward L. Greenspan, Q.C. and The Honourable Justice Marc Rosenberg, Court of Appeal for Ontario Martin's Related Criminal Statutes, 2008-2009 Edition This important, fully annotated resource includes all relevant, up-to-date related criminal statutes and case law, and the most significant federal criminal statutes. Includes decisions from every level of the courts, and cross-references to related provisions. 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