Delay Under Transitional Cases

Omar Ha-Redeye was interviewed by the Lawyer’s Daily in “Ontario Court of Appeal ruling reminds both parties of need to avoid delays in trial proceedings,” discussing the Court of Appeal for Ontario’s decision in R. v. Zahor 2022 ONCA 449,

A recent Ontario Court of Appeal ruling that dismissed a man’s appeal of his convictions of possessing and making available child pornography over unreasonable delays in his case illustrates how the courts will scrutinize the role of defence counsel in light of the framework for trials to be conducted within a reasonable time set out by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27, according to Omar Ha-Redeye, general counsel for Fleet Street Law, a legal incubator in Toronto.

“In Jordan, the court emphasized that all parties in the justice system have a responsibility to ensure that matters proceed in an expeditious manner, but it also singled out criminal defence lawyers to some extent given that their clients benefit the most from the outcome of any unreasonable delay,” he said.

“Meeting these obligations to raise every issue and advance every argument or question may be in direct contradiction or tension with the need for expediency in criminal proceedings, as this case illustrates. Where these issues or arguments centre around evidentiary concerns, there is a concern that pressures for expediency may ultimately dilute or even compromise trial fairness.”

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Ha-Redeye said that although the concerns by defence counsel about the late disclosure of images that gave rise to a potential claim of tainted information were “ultimately unfounded, this was not an unreasonable concern from a defence perspective, and the challenges it created were also in part due to the delay in the disclosure that was attributable to the Crown.”

“Both the trial judge and the appellate court held defence counsel responsible for these delays.”

He said that while “the nature or the nature of the issues can justify a delay,” as the court stated in Zahor, “there is at least some element of Crown responsibility here that had broader impacts on defence counsel’s ability to mount an effective defence. Defence counsel required consultation and discussion with an expert to review the digital evidence and confirm the position of the parties.”

Ha-Redeye said the Appeal Court also made repeated references to the trial judge’s characterization of defence counsel’s “no stone left unturned” approach to litigation, “though the court noted that this was not due to any inappropriate conduct on behalf of defence counsel.”

“Faulting the defence for this approach, and subtracting these dynamics from the credit applied to the calculation of unreasonable delay, would potentially put counsel’s professional obligations to the client in tension with the obligation of counsel to the justice system to promote expediency,” he explained. “Expediency in our justice system cannot be interpreted as a shorthand for unwarranted concessions, an unjustified inclination towards pleas where there is insufficient evidence, or providing resolute and effective advocacy on behalf of criminally accused.”

“My concern is that in the broader goals of trying to promote expediency in the justice system, some defence counsel will also feel as if they cannot still effectively do their jobs,” said Ha-Redeye. “This may be particularly true where there are limited resources, defence counsel is funded through legal aid, and there are complicated or technical aspects to the evidence involved.”