Recent Manitoba court policy to address delays could pit rights against one another: defence lawyers

Recently introducedrules for Manitoba's superior court,designed to speed up trial dates and prevent cases from being thrown out due to unreasonable delays, areraising concerns within the criminal defence community.

In light of mounting pressure over court delays, Manitoba's Chief Justice Glenn Joyal introduced a practice direction last October. It requires that,in situations where an accused person consents to their trial date being set beyond a 30-month timeframe to accommodate their lawyer's schedule, they must formally sign anagreement waiving their Charter right be tried within a reasonable time.

These changes come in response to a landmark decision by the Supreme Court in the R v. Jordan case last July that established 30 months as the "presumptive ceiling" for what constitutes a reasonable timeframeto be tried in a Canadian superior court. Since the ruling, one case has been successfully tossed out following a challenge over delays in Manitoba.

• Supreme Court sets new deadlines for completing trials
• Man accused of sexually assaulting child walks free due to court delays

While the Criminal Defence Lawyers Association of Manitoba agrees steps need to be taken to tackle delays, it is concerned this new formalized approach could lead to situation where individuals must chose betweenrights.

"There's a tension there between right to your choice of counsel and having your trial inside of 30 months," says Scott Newman, a local lawyer and spokesperson for the organization.

The new Queen's Bench procedures requirethattrial dates for all criminal casesbe fixed to comply the Supreme Court's 30-month deadline and that in advance of the pre-trial conferences, defence lawyers consider whether or not they will be available for trial dates within thattimeframe.

If the defence lawyer cannot accommodate a trial date within the30-month window and the accused person wishes to continue working with this lawyer, the Court may permit up to six additional months of delay beyond 30 months but only ifthe defendant agrees in writing to waive their right to a timely trial. The wording of the agreement isopen-ended withno end date.

If the defendantopts to notwaivetheir Charter rightand their lawyer of choice cannot accommodate the presumptive ceiling timeframe, the courts will require that the defendant findanother attorney orself-represents, effectively losing their right to counsel of choice.

"We're concerned that judges are going to be so strictly interpreting these issues on delay that they're going to be telling defence lawyers that we can't act and they're going to be interpreted in a way that means that people are going to be stripped of one right to satisfy another," said Newman.

• Defence lawyer for the man accused of killing Candace Derksen files motion to stay case

• Manitoba looks to get rid of preliminary inquiries to deal with court backlog

"When you have a constitutional right, it's meant to be used as a shield to protect you from some harm and we're concerned in this case they're using their concern about delay as a sword to strip away an accused right to their lawyer of choice," he added.

Reconciling rights

Manitoba Chief Justice Glenn Joyal, who also used the word "tension" to described the current situation in his October practice direction, told CBC News on Friday that these measures stem from the court's responsibility to adhere to the new specific timelines prescribed in the Jordan ruling while ensuring the administration of justice.

"What the courts have told us to do, when rights are colliding, is to try and reconcile the two," said the chief justice.

"If [the defence is]setting a date beyond the 30-month stage in our court, they're effectively asking us to endorse or be okay with a timeframe that is beyond what is the constitutional limit as set out in Jordan," said Joyal. "We're saying 'Wait, a minute, if you're going to go past the 30-month period, you need to say that you know that that's what you're doing and that you're waiving your right from that point on to raise a Charter challenge with respect to the delay that would be forthcoming."

Asked about concerns raised by criminal defence lawyers regarding scenarios where an accused agreed to waive his or her rights to be tried in a reasonable timeframe, but due to Crown-related delays the trial date gets postponed, Joyal chose to not speculate about how this wouldunfold.

"Those are case-by-case situations. I really don't want to comment on those, because those are scenarios that are going to be subject to the judge's discretion when those challenges come before them," said Joyal.

Since that decision, Manitoba Justice figures showthat a total of 34 lawyers representing clients under charge have filed a motion for a stay of prosecution on the grounds of delays.

• 27 delay motions filed for criminal cases in Manitoba

Reports from Statistics Canada on adult criminal court completion times for Manitoba rank among the highest in the country with a median time of 155 days last year, nearly double the timeframe for Saskatchewan (83 days).

How is 'delay'calculated in the era ofR v. Jordan?

The Ontario Bar Association provides this generalizedcalculation:

• Total delay from the charge date to anticipated or actual end of trial.
• Less delays caused by the defence.
• Less exceptional circumstances.
• Equals operative delay.
• If operative delay is greater than 30 months in federal court, or 18 months in provincial court, the charges must be stayed with a few exceptions.