ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-M7874
DATE: 2015/09/24
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Adam Picard
Accused
Dallas Mack and James Cavanagh, for the Crown
Lawrence Greenspon, for the Accused
HEARD: August 6 and 7, 2015
REASONS FOR JUDGMENT
R. Smith J.
[1] The accused has brought an application seeking an expedited trial date to be scheduled, earlier than the currently set trial date, in the winter or spring of 2016.
[2] At the May 29, 2015 pretrial, the accused and the Crown agreed on a date for two weeks of pre-trial motions commencing on September 6, 2016 with the trial commencing on November 7, 2016. February 1, 2016 was the first date that was available for the Court to set two weeks of motions, but September 6, 2016 was the first date that both Crown Attorneys assigned to the prosecution were available.
[3] The Crown argues that the effect of ordering an earlier trial date, where at least one of the two senior Crown Attorneys assigned to prosecute this case is not available, is equivalent to ordering the removal of at least one of the currently assigned Crown counsel. September 6, 2016 is the earliest date that both Crown counsel assigned to the case are available following the first date offered by the Court for two weeks of motions.
[4] The accused asks the Court to exercise its inherent jurisdiction and order that the matter proceed to trial at an earlier date because he will have been been in custody for almost four years by the time of his trial. The accused submits that another Crown Attorney should be assigned to this case to allow the accused to have an earlier trial date.
BACKGROUND FACTS
[5] The accused was arrested and charged with first degree murder on December 12, 2012. He was denied bail on June 25, 2013 and has remained in custody since his arrest.
[6] The accused was committed to stand trial for first degree murder by Lahaie J. on March 13, 2015.
[7] February 1, 2016 was the first date available to the Superior Court for the two weeks of motions to be followed by a six week trial.
[8] The February 1, 2016 date was not available to one of the assigned Crown Attorneys because he was involved in a previously scheduled trial at this time. A number of other dates were offered by the Court between February and June but the Crown Attorneys were involved in other murder trials during this time period, and at least one of them was unavailable until September 1, 2016.
[9] The defence counsel is currently scheduled to appear at a trial schedule for February 3 and 4, 2016, but stated that if an expedited trial was ordered, he could “clear the decks” and make himself available commencing on February 1, 2016 to start the two weeks of motions.
[10] The Superior Court does not schedule jury trials in the months of July and August which meant that the first available date where all parties were available for the commencement of the trial motions, was September 6, 2016.
[11] The Crown submits that the delay caused by their unavailability is at a maximum five months, namely from February 1, 2016 until June 30, 2016. The Crown further submits that the actual delay caused by their unavailability is only four months, because defence counsel was not actually available on February 3 and 4, 2016, and the next available date was at the end of February 2016. The defence includes the two months in the summer and the month of February, 2016 and submits that the Crown’s unavailability has actually caused a delay of seven months. I find that the Crown’s unavailability has caused a delay of a maximum of five months, as the defence would probably be able to reschedule his other trial set for February 3 and 4, 2016. The Crown is not responsible for the Superior Court’s decision not to schedule any trials during the months of July and August and so the delay during the summer is not caused by the Crown Attorneys’ unavailability.
ANALYSIS
Issue #1 – Does the Court have jurisdiction to order the trial to take place on an earlier date when this will have the effect of removing the present Crown Counsel, without a finding of an abuse of process?
[12] The accused argues that the Court has an inherent jurisdiction to control its process, prevent abuse of process and to ensure that the machinery of the Court functions in an orderly and effective manner. The accused relies on the cases of R. v. Cunningham, 2010 SCC 10, [2010]1 S.C.R. 331, and R. v. Stelco Inc., 21 C.E.L.R. (N.S.) 159 in support of this proposition.
[13] The defence also relies on the case of R. v. Brown, 2013 BCSC 1027, at para. 24 to support its position that “a superior court of criminal jurisdiction has general powers, including supervisory powers, which enable directions to be given to expedite trials”.
[14] The defence submits that in the Brown decision, the judge found that an 11 month delay in setting a trial date for an accused who was in custody was unacceptable without a further explanation. The case was assigned to another prosecutor and an earlier trial date was scheduled.
[15] In the Brown decision, the Court did not actually order the removal of the Crown Attorney in order to obtain an earlier trial date. The judge requested an explanation for the delay and the Crown responded by agreeing to reassign the case to a different Crown Attorney. The issue of the Court’s inherent jurisdiction to order the removal of a Crown Attorney to obtain an earlier trial date, in the absence of a finding of an abuse of process, was not argued in Brown.
[16] The Brown decision is also distinguishable because it was a detention review case to which s. 525(9) of the Criminal Code, R.S., 1985, c C-46 applied. Pursuant to s. 525(9) of the Criminal Code, the Court is specifically authorized to give “directions to expedite trials”. This section is not applicable to the facts before me as it is not a detention review case and the parties have already agreed to a trial date.
[17] The defence submitted that in MacMillan Bloedel Ltd v v. Simpson, 1995 57 (SCC), 68 B.C.A.C. 161, [1995] 4 S.C.R. 725 at para 33, the Supreme Court approved a definition of the Courts’ inherent jurisdiction as set out by the Australian author James Mason, who stated “that the inherent jurisdiction of superior courts are growing, at least in Australia”. This quote is more applicable to Australia than to Canada.
[18] In R. v. Imona-Russell, 2013 SCC 43, the Supreme Court stated that the doctrine of inherent jurisdiction does not operate without limits and that even where there are no legislative limits, “the inherent jurisdiction of the Court is limited by the institutional roles and capacities that emerge out of our constitutional framework and values (see Provincial Judges Reference at para 108).
[19] I agree with the Crown’s submission that the effect of granting the accused’s application and ordering the trial to proceed on an earlier date, where at least one of the assigned Crown Attorneys are unavailable, would have the effect of overriding the discretion of the Attorney General to appoint Crown counsel to carry out a prosecution.
[20] In R. v. Anderson, 2014 SCC 41 at paras 37-51, the Supreme Court of Canada reviewed the issue of prosecutorial discretion. At para. 45, the Supreme Court stated that “prosecutorial discretion applies to a wide range of decision making.” At para. 46, the Supreme Court quoted from para. 45 of Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372 (S.C.C.) as follows:
In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive…
[21] In the Code-Lesage Report, the authors recognized that the assignment of Crown Attorney’s was an exercise of Crown discretion. In R. v. Desjardin at para 13, the Supreme Court also stated that the assignment of Crown Attorneys was an act of prosecutorial discretion.
[22] I am satisfied that the assignment of a Crown Attorney or Crown Attorneys to prosecute a serious criminal charge of first degree murder is within the Attorney General’s authority and is a matter of prosecutorial discretion. As a result, the Court should treat the Attorney General’s or his or her agents’ decision to appoint these two Crown Attorneys to this case with deference.
[23] In Anderson, the Supreme Court concluded that prosecutorial discretion was only reviewable by the courts for abuse of process. At para. 51 the Supreme Court stated as follows:
In sum, prosecutorial discretion is reviewable solely for abuse of process. The Gill test applied the by the Newfoundland and Labrador Court of Appeal was developed at a time when courts were struggling with the post Krieger “core” versus “outside core” dichotomy. To the extent, the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, it should not be followed.
[24] In Anderson, at para. 50, the Supreme Court described an abuse of process as Crown conduct that is egregious and seriously compromises trial fairness or the integrity of the justice system. The accused must prove an abuse of process on a balance of probabilities.
[25] The accused has not shown any evidence of “bad faith or improper motives” on the part of the Crown and indeed has not alleged any abuse of process by the Crown. The Crown Attorneys have had carriage of the prosecution of a serious and relatively complex murder trial since the beginning. The Crown Attorneys have legitimate reasons for their unavailability to proceed with this trial as they are currently assigned to other complex first degree murder trials between February 1, 2016 and September 1, 2016. The assignment of these two senior Crown Attorneys to prosecute this case is an exercise of prosecutorial discretion that I cannot override in the absence of a finding of an abuse of process, which has not been alleged or found.
[26] The accused argues that my decision should be informed by s. 11(b) of the Canadian Charter of Rights and Freedoms which grants a right to a trial within a reasonable time. The accused still has a potential remedy if his s. 11(b) Charter rights to a trial within a reasonable time have been infringed. The accused has chosen not to bring a s. 11(b) Charter motion seeking a stay of the prosecution. I cannot decide the s. 11(b) Charter issue as a s. 11(b) Charter motion has not been brought by the accused and the parties have not had the opportunity to fully argue this issue.
Disposition
[27] For the above reasons, the accused’s application seeking an order for an earlier trial date, which would require the reassignment of at least one Crown Counsel, is dismissed.
Mr. Justice Robert J. Smith
Released orally: September 24, 2015
COURT FILE NO.: 12-M7874
DATE: 2015/09/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ADAM PICARD
Accused
REASONS FOR JUDGMENT
R. Smith J.
Released orally: September 24, 2015