Two Ottawa defence lawyers say frivolous motions made during criminal trials are not the main cause of the country's court system delays, despite the practice being targeted in a Friday ruling by the Supreme Court of Canada.
The court's strong words against the delay tactics formed part of a unanimous 7-0 ruling Friday that upheld an accused Newfoundland drug dealer's bid to have his case thrown out over a five-year wait for a five-day trial.
The ruling comes 11 months after the Supreme Court set strict new rules for an accused's right to be tried within a reasonable time, in what's come to be known as the Jordan decision.
On Friday, the Supreme Court found that both the Crown and the defence contributed to the delay in the case of James Cody. The court reiterated that a "proactive approach" was needed by both sides to speed up the pace of justice — one that included putting forward fewer motions that bear no relevance to the case being tried.
"Trial judges should suggest ways to improve efficiency, use their case management powers and not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous," the ruling said.
"Irrespective of its merit, a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay," it added.
However, it's a directive that will affect the work of defence lawyers more substantially, according to Anne London-Weinstein, president of the Defence Counsel Association of Ottawa.
"The reality is that the defence — because our clients have constitutional rights — we're going to be bringing 90 per cent of the motions. So, it's going to be our work that's assessed in terms of whether or not something is frivolous," she said.
The Jordan ruling last July set strict limits for when a trial must be completed: 30 months for a case in Superior Court and 18 months for cases in lower courts.
In the nine months since the Jordan ruling, 76 cases in Ontario have been tossed out due to unreasonable court delays, according to the Ministry of the Attorney General. Eight of those cases were in Ottawa.
Last November, an Ottawa judge stayed a first-degree murder charge against 33-year-old Adam Picard, who had been accused of killing Fouad Nayel in 2012, and had been in jail awaiting trial for nearly four years.
That decision is currently under appeal.
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The defence team for 21-year-old convicted murderer Devontay Hackett also attempted — albeit unsuccessfully — to argue that the 32½-month delay in bringing Hackett's case to trial violated his rights under the Canada's Charter of Rights and Freedoms.
Evidence 'much more complex'
Speaking in general terms about the pace of the legal system in Ottawa, London-Weinstein said defence motions often have very little to do with the problem of court delays.
"The laws of evidence have become much more complex. Trials have become longer because of the volume. Wiretap evidence is a classic example, where it just elongates the time it takes to litigate them and their admissibility," she said.
London-Weinstein also said that while defence lawyers have to provide reasonable evidence to the court as to why they're pursuing certain motions, they don't have to give their entire strategy away — and that the court's ruling could potentially affect that.
Both London-Weinstein and Ottawa defence lawyer Michael Spratt said frivolous motions or applications are rare, with Spratt noting they most often come about when an accused person inexperienced with the law ends up representing themselves.
"We do know that when there is competent defence counsel on a case, matters proceed more expeditiously," Spratt said.
"It's in no one's advantage — and it's certainly not in a client's advantage — to poison a judge or a trier of fact against your case by needlessly wasting time."
Engaging in delay tactics also doesn't endear lawyers to the judges who try their cases, he added.
"Reputation is everything in the court. And no defence counsel would ever contemplate throwing away their reputation for a motion that would not result in any difference."