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w w w . C A N A D I A N L a w y e r m a g . c o m J U N E 2 0 1 7 9 A n Ontario decision has helped clarify what is meant by defence- caused delay, an issue trial courts have been grappling with since the Supreme Court of Canada decision in R. v. Jordan last summer. The unavailability of a defence law- yer because of scheduling issues will not necessarily count against an accused in assessing whether the right to a trial in a reasonable time has been breached, a Superior Court judge in Cornwall ruled. "Counsel are not expected to devote their time to one case," wrote Justice Rick Leroy in staying human trafficking charges against three defendants for a violation of their Charter rights in a case that took nearly 40 months to be brought to trial. The main cause of the delay was a lack of Superior Court resources, noted Leroy in his ruling in R. v. Albinowski et al, released on April 20. "A symptom of the poor health of the criminal justice system in this jurisdic- tion is that we were unable to assign priority status to a serious case with serious consequences for the accused if convicted because the pipeline was/is full," he wrote. Scheduling delays, especially in cases where there is more than one accused, says Toronto defence lawyer Megan Savard, has not been settled in the trial courts in Ontario when it comes to how to interpret that aspect of Jordan. "There is a vigorous debate. I think there is a divide in the Superior Court," says Savard, a partner at Addario Law Group LLP, who represented the Criminal Lawyers' Association as an intervener at the Supreme Court in R. v. Cody, which is also about unreasonable delay. In Cody, the criminal lawyers group argued there should be a high bar for attributing delay to the defence. It cited a Supreme Court decision in 2009, which stated that defence lawyers cannot be expected to be in a perpetual state of avail- ability in terms of scheduling. The stay issued by Leroy is one of a handful of Superior Court rulings in Ontario since Jordan to examine whether unavailability for a specific time window in court should be classified 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 issue have changed since Jordan. "I think the interpretation that the Crown wanted Justice Leroy to make was that because we declined a date we were not ready. There is a difference between being available and being ready," says Miller. \ AT L A N T I C \ C E N T R A L \ P R A I R I E S \ W E S T REGIONAL WRAP-UP ONTARIO DECISION HELPS DEFINE 'DEFENCE-CAUSED DELAY' POST-JORDAN Continued on page 10 A World Leader in Lifelong Law School Learning Osgoode Professional Development brings together top legal and professional experts each year to deliver over 100 programs on the latest legal issues. Find your program at osgoodepd.ca/2017cle OSGOODE PROFESSIONAL DEVELOPMENT CONTINUING LEGAL EDUCATION Learn from leading minds. ntitled-1 1 2017-05-12 10:10 AM

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