Ever heard of Askov?

Russell Wangersky rwanger@thetelegram.com
Published on April 2, 2013

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.