Ever heard of Askov?

Russell Wangersky
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Finance Minister Jerome Kennedy has certainly heard of Askov. He’d have to: he was a defence lawyer for years, and as a lawyer with standing at the Lamer inquiry into wrongful convictions in this province, Kennedy would be well familiar with something that has become a key piece of law in Canadian courts.

The Queen vs. Askov was an extortion case that was heard by the Supreme Court of Canada in March 1990. A seminal case, it established that the accused in any case has the right to be tried in court within a reasonable period of time, while memories are fresh and evidence is new.

It doesn’t just benefit the accused.

As the court pointed out at the time “A quick resolution of the charges also has important practical benefits, since memories fade with time, and witnesses may move, become ill or die. Victims, too, have a special interest in having criminal trials take place within a reasonable time, and all members of the community are entitled to see that the justice system works fairly, efficiently and with reasonable dispatch. The failure of the justice system to do so inevitably leads to community frustration with the judicial system and eventually to a feeling of contempt for court procedures.”

In the Askov case, the court decided that the two years it took to get the case to court was too long, and threw the charges out: “The Crown did not show that the delay did not prejudice the appellants, and nothing in the case was so complex or inherently difficult as to justify a lengthy delay. This trial was to be heard in a judicial district notorious for the time required to obtain a trial date and figures from comparable districts demonstrate that the situation there is unreasonable and intolerable.”

Since then, Askov and other cases have been regularly cited by defence lawyers — like Kennedy — as a precedent for why their clients can’t get fair trials and should have the charges against them dismissed.

Why is this important now? Well, because last week, the provincial budget took an axe to the Crown prosecutors’ office in St. John’s. In March 2012 there were 25 prosecutors. Now, that number stands at 16. In addition, there were deep cuts to the office’s support staff.

A quick search of the Canadian Legal Information Institute (CanLII) database shows Askov has already popped up more than 60 times in judgments made in this province alone — even before the cutbacks to prosecutors — and there are a fair number of Newfoundland cases that aren’t indexed on CanLII.

Chances are, we’ll be hearing more about it.

Askov, and other cases that followed, set out a framework for how and when charges should be stayed — essentially dropped — because delays are a violation of the accused’s rights. (And before the commenters charge off in all directions talking about “guilty people getting away with it,” stop and think how you’d feel if you or your child had to wait for two or three years to have a criminal charge dealt with, especially if you were innocent.)

The less serious and involved the case, the less delay there needs to be before a judge can halt the case entirely.

The irony, of course, is that, the more strapped the courts are for time, the more time will be eaten up by dealing with Askov-type claims of prosecutorial delay. It is a vicious circle.

Darin King is the minister of justice and he’s maintained that the cuts to prosecutors and their support staff — and the addition of 300 cases to the caseload of the remaining 15 prosecutors (another prosecutor has since announced she’s quitting) — will have no effect on the administration of justice.

“I don’t see a problem,” he said when asked about the cuts. “I have every confidence in the decisions we’ve made.”

Maybe he should talk to the lawyerly minister of finance about how these things really work.

Because, all political posturing aside, Kennedy knows.

Russell Wangersky is The Telegram’s  editorial page editor. He can be reached by email at rwanger@thetelegram.com.

Organizations: Supreme Court of Canada, Canadian Legal Information Institute, CanLII

Geographic location: Askov, Newfoundland

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Recent comments

  • ian simpson
    April 04, 2013 - 18:39

    "Justice delayed is justice denied." I can't remember the origin of the quote, but I think it pertinent.. Simon Winchester,--in his book the Professor and the Madman,-- which was an introduction to his magnificent book on the making of the Oxford English Dictionary, described a psychotic American Doctor, traumatised by the American Civil War, who shot an innocent worker in London because he was under the delusion that this worker was " out to get him " The Courts in London found him " Guilty but insane". Within a very short time he was sent to Broadmoor Hospital; ---an institution for the criminally insane-- He continued to read and study, and was actually a major contributor to the Oxford English Dictionary, during his time in Broadmoor. We should always hope and expect that our legal and parliamentary system would always remember such cases. By the way,some years later, he was eventually released, to return to the US and his family, when it was realised by the government of the day , that he was no longer a threat to society. Winston Churchill, as Home Secretary, was the Minister who signed his release. I think Maggie Carter is right.

  • Hector
    April 03, 2013 - 16:03

    The reasoning of the court in Askov, i.e., that a speedy trial is in order to preserve memory, to avoid witnesses becoming ill, dying or moving abroad, etc., is typical of the one-sided thinking of judges; Askov does not apply to the defense. I can cite chapter and verse of a murder trial here in Ontario (Askov here applies) that took five years to convict the accused; being in custody and getting two for one credit if convicted in addition to the hope that any of the reasons above come to pass are tactics frequently used by defense lawyers. I think some commentators have missed the point of the article; it is not about political ideology, it is about the courts and judges interpretation of the laws.

  • crista
    April 03, 2013 - 06:36

    yes,another interesting article and you are right kennedy and not only him that knows???? the problem is they do not want you and your readers to know???? what has gone on and the way that they conduct politics and enforce the law and it takes your human rights right out of the code and that enables the ones that do know and the ones that do not know???? and who are the ones are left in doubt???? and what becomes of the doubt???? and you speak of the lamer inquiry, it was not only the the lamer inquiry????

  • Sam
    April 02, 2013 - 20:04

    Has the prosecutor resigned? I have been watching for the follow up to Saturday's front page.

  • Maggy Carter
    April 02, 2013 - 12:40

    I think Russell that you and others might be missing the bigger picture here. I could be wrong but my guess is that the cuts in the justice department are intended to deliver savings well beyond the salaries and expenses of the prosecutor's office. For the past few years a clandestine war has been waged between the federal and provincial governments with respect to the administration of justice in Canada. Changes to the Criminal Code adopted by the Harper Government were essentially designed to do two things: (1) appeal to their conservative base by pushing for more convictions and longer sentences; and (2) downloading a greater share of the costs of investigating, prosecuting, and incarcerating criminals onto the provinces. Although the federal government has exclusive jurisdiction over the Criminal Code, its enforcement is largely borne by the provinces. Newfoundland has pleaded unsuccessfully with the feds for years for help in upgrading our 19th century prison system. Our penitentiary continues to be a blemish on the administration of justice in this province. There has been a conspiracy among prosecutors, defence lawyers, judges and criminals to the effect that when prospective sentences are anywhere in the eighteen month range, they are invariably pushed beyond two years to avoid the local penitentiary in favour of out-of-province incarceration in federal prisons. The federal changes - which have been heavily criticized by criminologists across the country - are no doubt putting tremendous pressure on provincial budgets to the point that justice ministers are looking for ways to reduce their exposure. One such tactic would be to deliberately undermine the ability of your own justice department to function at a high level. Reduced numbers of prosecutions means fewer chargers, fewer convictions and fewer inmates. No, they won't let murderers and rapists go free but, as one lawyer already pointed out, they will put less effort into the less heinous crimes like shoplifting. The reality is that - like health care - we are already seeing a serious rationing of resources in the criminal justice system. At $300 plus per day per inmate plus the many thousands spent upfront to obtain and hold conviction, it is perhaps about time that politicians stopped feeding ill-informed public opinion and took a closer look at the science of criminology and the question of recidivism.

    • SD Redgrave
      SD Redgrave
      April 02, 2013 - 15:06

      Way to look at the big picture Mag! Yours is the most sensible twist I have heard so far and it makes perfect sense. The "Out of the Darkness" report of 2007 pointed out so many deficiencies in our prison system it has overwhelmed the current government. What the heck, their only criminals , right? Judge Greg Brown was part of that report and If I had to guess, he's not too pleased with what's going on right now. Nonetheless, this latest maneuver with proverbially, blow up in their faces.

  • Cyril Rogers
    April 02, 2013 - 10:20

    I find it rather odd the the Dept of Justice has taken such a big hit in this budget. Given the complexity of court cases, the sorry history of many trials and cases in this province, I would think we are only asking for another situation that will result in an inquiry. Something doesn't seem right!

  • EDfromRED
    April 02, 2013 - 09:32

    Jerome Kennedy is certainly showing his arrogant stripes. He's willing to cut the Justice Dept. to the bone --endangering the publics safety. But refuses to cut or tax anything that cause discomfort to millionaires or billion dollar corporations. It's scary that anyone who is so removed from reality is in charge of our finances. It illustrates a level of incomprehensible aloofness and disdain for the common person. It would not surprise me if in response to the pleas of the public he says: "Let them eat cake"

  • Roy
    April 02, 2013 - 07:38

    What's going to happen is plea bargaining down to soft flicks on the wrist.

    • SD Redgrave
      SD Redgrave
      April 02, 2013 - 08:31

      OK brother Roy: Hypothetically...you are accused of a crime; let say assault for arguments sake and you are innocent. Someone has mistaken you for your twin brother who fled to Alberta. So, after spending two weeks in custody the crown makes you an offer. "I'll give you two years probation if you want to plead guilty, or if you want I'm going for three years incarceration if you choose to run it and go to trial, I'll give you 15 minutes to make your decision" . What would you do Roy?

    • Roy
      April 02, 2013 - 14:04

      Well, I would hire you as my hypothetical lawyer. And then we could sell our hypothetical story and make hypothetical millions.

  • S Redgrave
    S Redgrave
    April 02, 2013 - 07:04

    I couldn't agree more Russell. Time is a major consideration in court proceedings. Sometimes it is beneficial for both parties to take the time to fully explore some of the more complex cases. When a prosecutor is over worked they have a tendency to get facts and dates mixed up, or focus on issues that hold little relevance to the proceedings at hand simply because they had to take a "crash course" familiarization of the case. I have personally witnessed highly skilled prosecutors in court who were struggling to come up with their next line of questioning because they were in such a rush. This was before the loss of their colleagues. I cringe when I think of what may be coming next. I feel bad for all sides involved. I'm confident we may see some backpedaling and reinstatement of of funding once reality slaps Dunderdale in the face.