COURT FILE NO.: CR-23-00000005-0000
DATE: 2024/05/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Applicant
Matthew Humphreys, for the Crown
Robin Flumerfelt, for the Crown
– and –
BRIAN NADLER
Respondent
Brian Harold Greenspan, for the Respondent
Naomi M. Lutes, for the Respondent
Anna Zhang, for the Respondent
HEARD: May 29, 2024
Ruling- Application for adjournment
Phillips J.
[1] This is my ruling with respect to an application by the Crown for an adjournment of the six-week-long first-degree murder trial set to start on June 3, 2024. The Crown proposes that the trial should be re-scheduled to commence in late 2024 or early 2025.
[2] The Crown seeks the adjournment for principally three reasons. First, my ruling released on May 24, 2024, that a key expert opinion witness shall not be called entitles the Crown, it is submitted, to have time to determine how to respond. Second, voluminous materials recently received after a defence third-party records application requires time to digest. Third, a report has just been received by the Chief Forensic Pathologist of the Ontario Forensic Pathology Service and the parties require time to consider it.
[3] I have decided that an adjournment is warranted, but nowhere near the length requested.
[4] I consider that Brian Nadler is entitled to his day in court. He has lived with the stress of facing four counts of first-degree murder since those charges came about in early 2021. I can only imagine what his life has been like living under such a cloud. Even though he has been cloaked in the presumption of innocence, I have no doubt that to be alleged to be a doctor who murders his own patients has been an experience that has taken its toll. The idea that this trial should be postponed into 2025 as the Crown wishes must be assessed with the accused's perspective included.
[5] The fact that this matter has been ongoing since March 2021 also means that the authorities have had ample time to delve deeply into the material issues and to marshall a prosecution case as fully and completely as the unlimited resources of the Crown allow. While I agree that facilitation of the truth-seeking function of the criminal process is an important part of the reputational maintenance of the administration of justice, that notion does not extend into a Crown entitlement to indefinite post-charge investigation. At some point, the state must be called upon to play its cards. In my view, after roughly 38 months of investigation, that time has come.
[6] I disagree that my March 24, 2024, ruling ought to now result in the Crown being given sufficient time to replace that now-disallowed body of evidence. The Dr. Crowther component was presumptively inadmissible and one of the potential outcomes of any voir dire is the exclusion of the evidence under consideration. Indeed, the exclusion of evidence is a regular result of the application of the law in many contexts as are the consequences that often follow. If the Crown were to be given an adjournment sufficient to essentially re-cast its case, this trial would end up in a perpetual state of unreadiness - the defence would be entitled to respond to the new “case to meet” with possibly new experts, prompting response from the Crown and on and on it would go.
[7] I cannot conceive how I could end up compelled to re-consider my March 24, 2024, ruling as the Crown proposes. I heard the parties out and made a decision. Even though it is not directly applicable, the functus officio rule would surely have relevance. Of course my decisions are reviewable, just not by me.
[8] I do, however, agree that an extension of time is called for in light of the late-breaking disclosure arising from the third-party records application as well as the report recently received from Drs. Pollanen and Milroy.
[9] After considering the quantity and nature of the materials involved, I agree with defence counsel's proposal for a two to four week adjournment. Out of an abundance of caution, I choose the outer limit of that range and adjourn this trial to commence July 2, 2024.
The Honourable Justice Kevin Phillips
Released: May 30, 2024
COURT FILE NO.: CR-23-00000005-0000
DATE: 2024/05/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Applicant
– and –
Brian Nadler
Respondent
Ruling- application for adjournment
Phillips J
Released: May 30, 2024