Law Times

May 8, 2017

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Page 2 May 8, 2017 • Law TiMes the defence. It cited a Supreme Court de- cision in 2009, which stated that defence lawyers cannot be ex- pected to be in a perpetual state of availability in terms of sched- uling. The stay issued by Leroy is one of a handful of Superior Court rulings in Ontario since Jordan to examine whether un- availability for a specific time window in court should be clas- sified 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 is- sue have changed since Jordan. "I think the interpretation that the Crown wanted Justice Leroy to make was that because we de- clined a date we were not ready. There is a difference between being available and being ready," says Miller. The defence should al- ways 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 attrib- uted 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 exception- ally" 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 inter- ests for another," wrote Leroy. Donald Johnson, a Cornwall defence lawyer who represents the other accused in the Albi- nowski case, says that delay is- sues will continue in the region without additional resources. "With more judges and more courtrooms, we can work some- thing out," says Johnson. The Public Prosecution Ser- vice of Canada has 30 days to de- cide whether to file an appeal of the ruling by Leroy, says spokes- woman Nathalie Houle. She also points to a specific section of Jordan where the Su- preme Court stated that if the court and Crown are ready to proceed and the defence is not, then delay from that unavail- ability will be attributed to the defence. Savard suggests, though, that Leroy correctly found a distinc- tion between readiness and availability. "There should not be [de- fence] 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 excep- tional circumstances that justi- fied the delay. Two other recent Ontario Superior Court decisions, with slightly different factual cir- cumstances, have come to dif- ferent conclusions on the best approach in assessing delay in cases with more than one ac- cused. In her decision in R v. Ny and Phan, Justice Michal Fair- burn stayed charges against two defendants in a marijuana-traf- ficking case that took four years to come to trial. Much of the delay was caused by other accused in the pro- ceeding and Fairburn rejected the Crown's argument that this should count against all of the defendants. In dismissing an unreason- able 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 arbi- trary results," wrote Code in R v. Brissett. "It rewards one co-accused with a windfall that f lows solely from the calendar and availabili- ty of another accused's counsel," he stated. LT They will also have to walk through a metal detector. Security guards may use an additional hand-held metal de- tector if it's deemed necessary and can also conduct a physical search. Privacy lawyer Gil Zvulony says he does not think lawyers should be subjected to security screening as it will be an undue inconvenience. "[It's] much like airport em- ployees, [who] don't have to go through rigorous screening when they go to work. Simi- larly, the judges aren't going to go through screening. So, I don't think lawyers should," he says. He questioned whether court resources should be used to screen lawyers who are officers of the court and have met pro- fessional requirements. "Screening is to weed out the people we don't know, bringing in bad things," he says. Yves Leclair, a spokesman for Courts Administration Service, said that briefcases and docu- ment boxes will be screened us- ing equipment that does not re- veal the content of documents. "Security officers will not be reviewing solicitor-client privi- lege documents. If the X-ray screening equipment identifies item(s) that could be potential- ity prohibited, the lawyer will be asked to help resolve the matter by showing only the item(s) in question to the screening of- ficer," said Leclair in an e-mail statement. "This may include asking the lawyer to move aside anything in the belonging that is obstruct- ing the officer's view of the ques- tionable item(s)." He added that the screening procedures were developed to be the least intrusive possible. Leclair said further inspec- tion will only be conducted "if there is no other way to confirm there are no prohibited items present" and with the lawyer's prior consent. He added it was decided that lawyers would not be exempt from the screenings after exam- ining the practices of other juris- dictions. "As a national security pro- gram whose main objective is to minimize risks to the safety and security of members of the courts, lawyers, parties, wit- nesses, employees and the pub- lic, it is particularly important that the Courts Administration Service ensures consistency and uniformity in the security mea- sures applied throughout Cana- da," he said. CAS is encouraging lawyers who intend to submit items to the court as potential exhibits that are not documents to con- sult the registry ahead of time to see if special arrangements are available to avoid delays. Aprile says his firm's general practice is to clearly mark all files that are subject to solicitor-client privilege and that it would rarely bring such materials to court. "Frankly, security isn't ter- ribly interested in our submis- sions," he says. The courts have told lawyers to let their clients know about the requirements and encour- aged them to arrive at least 30 minutes before their proceeding is set to begin. In Ontario Superior Court, lawyers simply have to show their identification from the Law Society of Upper Canada and they can avoid having to go through security screening. Lawyers say that when they visit courts in other provinces, they can usually show their LSUC identification and walk through. The government also plans to invest $19 million over five years in both physical and IT security at federal courthouses, which will include installing new cam- eras, additional security person- nel and screening tools. The equipment necessary for the screenings is being installed at 11 federal courts across the country and should be opera- tional at all of them within the next few months. LT Continued from page 1 Equipment being installed across the country Main cause of delay lack of court resources Continued from page 1 NEWS 2 nd Annual Duties of Good Faith: An Update On Law Toronto • Online | June 2017 COURSE LEADER Eli Lederman, Partner, Lenczner Slaght Royce Smith Griffin LLP COURSE HIGHLIGHTS • History Of The Duty Of Good Faith • What Your Employees And Agents Need To Know • Good Faith In Insurance Contracts • Good Faith In Intellectual Property • Good Faith And Leasing • Good Faith And Employment • Good Faith In Franchising • Good Faith In $POTUSVDUJPO DATE & LOCATION Toronto: June 14, 2017 St. Andrews Club and Conference Centre 150 King St West, 27th Floor, Toronto, ON M5H 1J9 Live webinar: June 14, 2017 FOR QUESTIONS AND GROUP RATES, PLEASE CONTACT: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: Email: Register online at For more information, please contact Lexpert® Professional Developments at 1-877-298-5868 MAINTAINING HONESTY IN TODAY'S WORLD EARLY BIRD ENDS MAY 15 Untitled-2 1 2017-04-28 2:53 PM Follow on

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