Ontario judge rebuked for ending day early as delays pile up

By Sean Fine

Globe and Mail

Feb 17, 2017

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An Ontario judge has been rebuked by a higher court for contributing to the “culture of complacency” besetting Canada’s criminal-justice system, after breaking for the day at 4 in the afternoon, two days in a row, while two witnesses waited in the hallway to testify. The two witnesses eventually testified for roughly a half-hour in total – at a cost of two months and five days of delay in finding another court date when the prosecution and defence lawyers were available.

The criticism of Ontario Court Justice Rick Libman – chair of the court’s rules committee – comes in a published decision by Justice Michael Code of the Ontario Superior Court. Justice Code had been asked for a stay of proceedings over unreasonable delay by two men accused of cocaine trafficking, under new rules set by the Supreme Court of Canada last July.

The Supreme Court said a “culture of complacency” has afflicted the criminal-justice system for years. It established time limits of 18 months from the laying of a charge to the completion of a trial in provincial court, and 30 months in superior court.

Since that ruling, criminal defence lawyers have applied to have more than 800 cases thrown out of Canadian courts over delay, a Globe and Mail review has found. Two first-degree murder charges have been thrown out in Alberta and Ontario over delay. (Both rulings are under appeal.)

The rebuke of Justice Libman shows that, while judges are in some ways leading the push to keep cases moving through a clogged system, they are not immune to criticism.

“This two-month period of delay would have been completely unnecessary if the Court had adopted a more appropriate sitting schedule,” Justice Code said in his ruling last month in a case known as R v. Brissett. “In my view, it is not acceptable to adjourn court at 4:00 p.m. on two consecutive days when brief witnesses have been waiting out in the court hallways and are available to testify. The approach taken by the Court during this period of delay is emblematic of the ‘culture of complacency’ described in R. v. Jordan.”

In the end, Justice Code did not stay the charges against the men. Their cases had taken 36 months to come to trial, with an expectation the trial would end within the month. Justice Code subtracted five months for delay caused by the defence, and four months for exceptional circumstances (caused in part by the Pan American Games in Toronto taking up the time of a police witness). That brought the delay down to an acceptable 27 months.

Justice Libman declined to comment, through a spokesperson for the Ontario Court of Justice.

Anthony Moustacalis, president of the Criminal Lawyers’ Association, described Justice Libman as a good, hard-working, smart judge. He said part of the function of higher-court judges is to criticize the conduct of other judges, but added, “they should be careful. They can’t have a dialogue to find out what happened or why. There may be reasons that are not on the record.” He said some judges are not as diligent as Justice Libman, and “there should be a peer-review mechanism in place to capture those situations.”

In some jurisdictions in the province, courts begin at 9:30 a.m., and in others, at 10, and they generally sit to 4:30 or 5 p.m., Mr. Moustacalis said. “I’ve never had a problem if I say, ‘Look, I’ve got a witness from out of town, can we sit until 5 or 5:30?’ The only time it doesn’t happen is if someone has child-care issues.”

Justice Libman is a former Crown attorney who has been a judge since 1996. He has a doctorate in law from York University’s Osgoode Hall Law School. He is an adjunct professor at Osgoode, and a frequent legal author whose works include Regulatory Offences in Canada and Criminal Trial Rules in Provincial Courts in Canada.

“Everything I know about Justice Libman is that he is a committed, fair, knowledgeable, hard-working Justice,” Toronto lawyer John Allen, who co-authored Handling Provincial Offence Cases in Ontario 2016 with Justice Libman, told The Globe in an e-mail.

A Toronto judge who asked not to be named said judges generally rely on decisions by others, especially lawyers, and thus have little control over sitting hours. In some circumstances, this judge said he has deliberately adjourned early for the day – for instance, if an accused begins to testify and is not going to finish that day, the law society restricts the type of contact his lawyer can have with him. “Especially if the accused is under cross-examination, counsel may barely speak to him overnight. So rather than get into that position, I might well break early so that counsel isn’t put into that position.”

Justice Libman is not the first respected participant in the justice system to be accused of complacency toward delay. Last September, the Ontario Court of Appeal called Crown attorney Dallas Mack’s conduct of the trial of George Kenny “a poster child for the culture of complacency towards delay,” saying he had “a leisurely approach to disclosure” and failed to pay “any real heed” to Mr. Kenny’s right to a timely trial, despite concerns raised by Mr. Kenny’s lawyer. The court threw out Mr. Kenny’s conviction for assault causing bodily harm for taking part in a fatal beating, and stayed the charge against him. Mr. Mack is the winner of an Excelsior Award for public service from the Attorney-General’s Ministry, and prosecutor of the year from International Association of Financial Crimes Investigators.