Appeal ruling rebukes judge
Cut trial short after Crown was accused of having weak case
When the Supreme Court said trial judges should do their part to reduce delay in the justice system, it wasn’t suggesting what Justice Richard Blouin did in a 2017 criminal case, an appeal court has ruled.
Blouin, a provincial court judge in Toronto, cut the case short and acquitted the accused after hearing from the Crown’s only witness, but before the defence was able to call its evidence, and before either side could make closing submissions.
“There is a provision in there talking about preventing delay,” Blouin said in his October 2017 ruling, referring to a Supreme Court decision in R v. Cody.
“And I just wanted to speak to that because I’m not going to ask the defence to call any evidence because in my view the Crown is not anywhere near proving his case beyond a reasonable doubt.”
The Crown appealed the acquittal, and Superior Court Justice Suhail Akhtar ordered a new trial in a decision released this month.
“Whatever the ramifications of Cody and its comments encouraging judges to ‘control and manage’ a trial, the Supreme Court of Canada did not sanction the elimination of one of the fundamental tenets of a criminal trial: the right of a party to make submissions on the guilt or innocence of an accused person,” Akhtar said. “What happened here was a serious violation of natural justice and the appeal must be allowed on this ground alone.”
The case involved a Toronto man, Brian Sibbert, who was charged with failure to comply with a probation order for allegedly contacting his neighbour, whom he had previously pleaded guilty to assaulting. The woman was the Crown’s sole witness.
Even the accused, who is now facing a second trial, agrees that Blouin made a mistake.
“The judge erred, therefore the Crown appeal should stand and I agree with that ruling,” Sibbert told the Star.
“It wasn’t a murder case. It’s a monumental waste of time and money for the court, and a waste of my time and my money.”
After the Crown had filed its final exhibit and after the defence confirmed that it intended to call Sibbert as a witness, Blouin spoke about the “new approach”.
“And we are asked to do things a little differently and expedite the process and try to come to some decisions without full-blown hearings,” he said.
He cited the Cody decision, which reiterates much of what the Supreme Court said in its landmark R v. Jordan decision in 2016. That ruling set strict timelines to complete criminal cases — 18 months in provincial court and 30 months in Superior Court — and said “trial judges should make reasonable efforts to control and manage the conduct of trials.”
Blouin then dismissed the case against Sibbert over concerns with the Crown witness’s reliability, but without hearing submissions from either side.
“And again we could have gone through this charade and it would have been, in my view — the defendant would have testified, and (the Crown) would have cross-examined based on a number of issues that would come up, and we could have spent another hour dealing with this matter,” Blouin said.
Akhtar, the appeal court judge, took issue with what Blouin said in acquitting Sibbert, finding the judge’s comments “strongly suggest that he had prejudged the matter.”
He said Blouin’s comments also “reflect a serious misunder- standing” of the the Cody decision. By commenting on trial judges managing trials, the Supreme Court was referring to the streamlining of motions and applications before and during trial to avoid delay, Akhtar said.
“The paragraph relied upon by the trial judge and the sentence he emphasized hardly signalled a system by which a trial judge could ‘short circuit’ a trial even though there was further evidence to be called, and submissions to be made, simply because he or she thought they had ‘heard enough,’” Akhtar wrote.
Toronto lawyer Megan Savard, who represented the Criminal Lawyers’ Association as an in- tervener in the Cody case before the Supreme Court, said there are many things judges can do to reduce delays, including imposing deadlines on themselves, appointing lawyers to act for unrepresented accused persons, and setting time lines and working withparties to narrow issues.
“It is tempting to try to solve the delay problem by taking procedural fairness guarantees away from defendants,” Savard said.
“Here, the trial judge’s intervention made the trial more efficient but at an unacceptable cost: it undermined the defendant’s right to be heard.”