“In the Halls of Justice, the only justice is in the halls.” ~ Lenny Bruce
Thursday was an unremarkable day in the courtroom as Eric Mearow’s defence counsel, Ariel Herscovitch, presented his pre-trial motions in Superior Court today.
Eric Mearow, Dylan Jocko and Ron Mitchell have been charged with first degree murder and being a party to indignity to human remains. The victim’s (Wesley Hallam) decapitated and dismembered body was discovered in a deep ditch close to Cold Water Creek, along Landslide Road on January 11th, 2011. City police say that Hallam was killed January 7th or 8th, 2011 during a house party at 30 Wellington St. East.
Crown Attorney Kelly Weeks, is assisted by Karen Pritchard in the prosecution of this case. Anik Morrow, representing Ron Mitchell, hails from Toronto. She is not a newcomer to the Sault courts and has previously defended locally accused individuals. Ariel Herscovitch, an associate of Derstine Penman in Toronto, has been assisting Jennifer Penman, counsel for Eric Mearow, throughout the preliminary hearing. Bruce Willson, of Willson Carter in Sault Ste. Marie, is serving as defense for Dylan Jocko.
There were several delays in the courtroom today. It was a slow start to the proceedings which broke for an hour, as soon as court was back in session this morning to address technical issues in the courtroom.
A late ‘morning’ recess at 12:30 p.m. -intended to last 15 minutes, created some confusion for Bruce Willson, defence counsel for Dylan Jocko. Presuming it was the lunch break, Mr. Wilson happily went off the grid for an hour to enjoy, undisturbed, the Number 3 Combo – fried rice, chop suey and 5 sweet and sour chicken balls, at the Sun Kwong Restaurant on Queen Street. Mr. Willson begged the forgiveness of the Court to which Justice I.S McMillan good-naturedly acknowledged the profuse apology with a wave of his hand.
The presentation of motions by the defence took longer than expected prompting a further delay to allow the Crown to provide rebuttal. As a result, this matter has been adjourned until October 13th, 2015.
The lengthy delay in getting this case to trial is not a local phenomenon.
In a 2011 article written by Christie Blatchford for the National Post, she quotes Michael Moldaver, a judge on the Ontario Court of Appeal in 2003, who stated, “Criminal trials are spinning out of control. Sadly they have taken a life of their own, and if they haven’t already done so, they are fast becoming the masters of a system they are meant to serve.”
In Blatchford’s piece she notes that Judge Moldaver “acknowledged all the factors that are at work- including the role played by his brothers and sisters on the bench- but he was clear that the bulk of responsibility for the length of time it takes ordinary criminal cases to get to trial lay with defence lawyers who then were filing a barrage of pre-trial motions alleging violations under the Canadian Charter of Rights and Freedoms.”
Judge Moldaver points to the defence stating “that pre-trial motions regularly last two to three times longer than the trial itself”.[1]
Section 11(b) of the Canadian Charter of Rights and Freedoms provides that “(11) any person charged with an offence has the right (b) to be tried within a reasonable time.[2]
The criteria set out to uphold this right have been established in R. v. Askov where the three appellants were charged with conspiracy to commit extortion in 1983. The trial was delayed until 1986 and the judge granted stay “finding longstanding institutional problems were the major cause of the delay.[3] Following the Supreme Court of Canada’s decision in R. v. Askov, approximately 50,000 cases, in Ontario alone, had to be dismissed due to unreasonable delay.[4]
In his 2013 article to the National Post, Adrian Humphreys brings forward the notion that “evidence, the single most important element of a court case, is choking the life out of Canada’s judicial system; or, more specifically, the analysis, management, disclosure and argument over evidence are the guilty parties at the end of this whodunit”.[5]
One only needs to spend a morning at the Sault Ste. Marie Courthouse to observe the onerous chore with which lawyers are tasked as they grunt and lug their tickle trunk of materials, all the way up the main staircase to their courtroom.
Humphrey’s also points out that “not only have cases been thrown out because of excessive delay in B.C., Ontario, Alberta and Nova Scotia, Crown attorneys from those provinces said many more are likely to follow”.[6]
The need to relieve the pressure on the courts has led to an increased use of plea bargaining and thus, a shift of discretion away from the judiciary to the prosecution (and to some extent the defence) in sentencing decisions.[7] The Ontario Court of Appeal and most other appellate courts have instructed trial judges that they are not to reject a joint submission except in the most egregious circumstances — those where the proposed disposition would be contrary to the interests of justice.[8] In such situations, sentencing courts become little more than the traffic controllers of a system that is driven by Crown and defence counsel.[9]
The emotional wear and tear and years lost to trial delays for those most intimately affected by the Courts tendency to prolong pre-trial, and to conduct marathon-length preliminary hearings, is not to be forgotten.
In reference to the practice of Courts accepting the constitutional maximum in trial delays as an operating minimum “there is thus the perception that the state has not been forced to deal in a serious way with the appalling consequences of delay: the attenuation of the impact of punishment when the sanction is imposed months or years after the offence; the impact on victims who are in limbo for lengthy periods of time; the impact on the reliability of the verdict when witnesses are required to reconstruct events years later; and most disturbing, the lengthy periods of time spent by accused in pre-trial custody, which have resulted in an increasing number of persons serving their sentences before conviction — either in jail or on house arrest — rather than after conviction.”[10]
With the many bumps in the preliminary hearing of Jocko, Mearow and Mitchell in the murder of Wesley Hallam, and with the slow pace of pre-trial motions, it looks like the Courts will be scheduling a trial date some time in 2016 –hopefully.
That’s five years after the first arrests of the three accused men in 2011.
*****
A publication ban prohibits the reporting of any evidence procured during the preliminary hearing of Mearow, Mitchell and Jocko as well as hearings associated with the outcome of the preliminary hearing.
[1] http://news.nationalpost.com/full-comment/the-long-delay-in-getting-to-trial-has-lost-its-charm
[2] http://publications.gc.ca/collections/Collection/CH37-4-3-2002E.pdf
[3] https://en.wikipedia.org/wiki/R_v_Askov
[4] http://www.aidwyc.org/losing-the-bargain-wrongful-convictions-in-plea-bargaining/
[5] http://news.nationalpost.com/news/canada/canadas-courts-are-choking-on-an-increase-in-evidence
[6] ibid
[7] http://www.ontariocourts.ca/coa/en/ps/publications/twenty-five_years_later.htm
[8] ibid
[9] ibid
[10] ibid
