Ontario judge criticized by higher court for causing case delays

Ontario judge criticized for delaying trial

TORONTO — An Ontario judge has been criticized by a higher court for adding to a “culture of complacency” plaguing the justice system after early adjournments in a drug case resulted in a two-month delay in the matter.

Ontario Superior Court Justice Michael Code had pointed words for the judge in a decision handed down last month. Code never referenced the judge by name, but court documents show the judge was Rick Libman of the Ontario Court of Justice.

Code analysed the judge’s conduct when ruling on an appeal of two men who alleged their trial for drug trafficking had been unreasonably delayed.

Code ultimately dismissed their application, but criticized Libman’s decision to adjourn court early on two days in a row despite the fact that witnesses were waiting in the hall to testify.

Code said Libman’s approach on those two days ultimately caused two months worth of delays and said it exemplified the attitudes within the justice system that prompted the Supreme Court to crack down on trial delays last year.

“In my view, it is not acceptable to adjourn court at 4 p.m. on two consecutive days when brief witnesses have been waiting out in the court hallways and are available to testify,” Code wrote in the decision R. V. Brissett. “The approach taken by the Court during this period of delay is emblematic of the ‘culture of complacency’ described in (the Supreme Court ruling).”

Libman declined comment on the matter.

The Charter of Rights and Freedoms says someone charged with an offence has the right to be tried within a reasonable time.

The Supreme Court ruled last July that the old means of determining whether a person’s constitutional right to a timely trial had been infringed was too complex and unpredictable.

It said unnecessary procedures and adjournments, inefficient practices and inadequate institutional resources had been accepted as the norm and had given rise to “ever-increasing delay.” It said the old framework failed to address this “culture of complacency.”

Under a new framework, the Supreme Court said delays must not exceed 30 months in superior courts and 18 months for cases at the provincial level.

Those benchmarks are not set in stone, however, and the court ruled prosecutors could challenge the notion that a delay is unreasonable by showing there were “exceptional circumstances.”

Code’s decision involved an application in which two men contended their trial had exceeded the new 30-month limit.

Code ultimately dismissed the application on the grounds that the delay amounted to only 27 months, some of which were caused by exceptional circumstances and lack of availability for some lawyers. But one area in which Code did acknowledge a delay was with scheduling in Libman’s court room.

The preliminary inquiry into the trial was due to take place over three days in March 2015 and hear from a total of seven witnesses.

Code’s decision outlines complaints from the accused, who alleged Libman started the court session late at 11 a.m. on one of those days and adjourned court early at 4 p.m. on two.

Code said the condensed court schedules meant two witnesses had to be booked for later days.

The preliminary hearing ultimately took place over six days between March and September 2015. Code acknowledged some of the delay in this was attributable to other factors but laid two months worth of delays directly at Libman’s door.

“This two month period of delay would have been completely unnecessary if the Court had adopted a more appropriate sitting schedule,” he wrote. “The seven anticipated witnesses could all have testified on the three scheduled days.”

Libman, a former criminal prosecutor, was appointed as a judge in 1996. He holds a PhD from York University’s Osgoode Hall law school, where he also currently teaches.

Michelle McQuigge, The Canadian Press

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