Saturday, October 20, 2012

Trial delay

R. v. Papandrea [2012] O.J. No. 4880 has disturbing language about delay:

43     Trial dates are now being set in this jurisdiction at the outer limit of tolerable delay. Trials are being added on to impossibly overbooked lists in the hope that some trials on those lists will collapse and the trial list will thereby become manageable. Some days this works and other days it does not. We are seeing more days now that it doesn't work than when it does.

44     As such, I expect that we can anticipate an increase in 11(b) applications being advanced in this jurisdiction. As more and more defence counsel become aware of this problem they may commence setting cases on client instructions with a slim chance of success at trial, because they will likely advise their clients that even though they may be bereft of defences, their hope of getting reached on the first trial date becomes less likely, thereby opening up the possibility of a stay of proceedings.

45     Though the client will ultimately make the decision whether to go to trial or not and pay the retainer fee for doing so, this is a consideration that I found many of my clients balancing during the lead up to, and in the fallout from the Askov crisis over two decades ago when I was defence counsel.

46     The success of using the protection of s 11(b) as a sword instead of a shield is a distinct possibility in this climate of crisis and may have a negative influence on our already overcrowded case lists.

47     This strategy is next to impossible to detect by judges but it can be stated simply in the following way; if the client's case will result in catastrophic consequences for their life, for instance the loss of their job or liberty, is it worth the risk, weighed against the "discount" for an early guilty plea to spend the money on setting a case for trial when no legal defences exist.

48     A defence counsel may inform their client that 20 percent of cases in an overburdened jurisdiction are generally not reached on an average trial day. The client then weighs the 'benefit' of not getting tried within a reasonable time and having a successful stay application against the 'risk' of having to throw away the cost of their legal fees and whatever benefit may be obtained by an early guilty plea against the value to them of avoiding the consequences of a conviction.

49     This is a subtle yet important consideration of the allocation of resources to allow trials within a reasonable time. In jurisdictions where there are six to nine month waits for trial this is not a consideration but in jurisdictions that are struggling, as Halton is, then this is a valid concern that further resources are needed to head off this mindset. Once the individuals facing trial in the jurisdiction realize that they have a chance of obtaining stays based on delay that can have an exponential effect on an overburdened region, resulting in a 'perfect storm', the need to withdraw or dismiss cases against a significant number of individuals who should be facing the consequences of their conduct.


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