Ontario prosecutor says preliminary inquiry tradeoff did not amount to coercion

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A prosecutor says she acted responsibly and fairly when she told defence lawyers she would ask for the Attorney-General's permission to shut down a preliminary inquiry and go straight to trial unless they agreed to waive their clients' right to timely justice.

The tradeoff, which one defence lawyer described as "extortion," came earlier this year and as the courts are struggling to meet strict time lines for criminal trials set in a Supreme Court ruling last July in the case R. v. Jordan. The accused and their lawyers agreed to waive the right.

But Barb Glendinning told Ontario Court Justice Rebecca Rutherford at the preliminary inquiry on Thursday that the tradeoff did not amount to coercion; while she and fellow prosecutor Elizabeth Jackson did insist the accused waive that right, she said, it should be deemed voluntary because she could not, on her own, bypass a preliminary inquiry. Under Canadian law, she would need the Attorney-General's consent. And such consent is "not a fait accompli," whether before or after the Supreme Court's ruling in the Jordan case, she said.

She also said the defence lawyers would have had the right to make submissions to the Attorney-General on why they opposed a direct indictment, if she had sought one.

"Ms. Jackson and I know that there was a quid pro quo to the waiver, which was indeed the withdrawal of our applications in exchange for the waiver," Ms. Glendinning said. "That does not, however, make the waivers involuntary or non-binding."

At stake are charges of first-degree murder against four men in the 2014 shooting death of 31-year-old Tariq Mohammed, an airport employee, at a restaurant in downtown Toronto. A preliminary inquiry screens charges in front of a judge to make sure enough evidence exists to go to trial.

Defence lawyer Dirk Derstine, a vice-president of the Toronto Lawyers Association, had told The Globe and Mail he shouted, "That's extortion," at Ms. Glendinning in a courtroom hallway. He and three other defence lawyers, each of whom represents a different accused in the case, said they felt the choice between preserving the preliminary inquiry and protecting the right to a timely trial was coercive.

Ms. Glendinning said she would address the issue in court at the first opportunity. That came on Thursday, and reflected the tensions in the legal system since the Supreme Court ruling last July. The Ontario government has given its prosecutors more latitude since last fall to seek to bypass preliminary inquiries. And the number of direct indictments has risen sharply since, government records show, while the Canadian Bar Association, a national legal group, has called on Ottawa to preserve the embattled prelim.

Ms. Glendinning told the preliminary inquiry it is her responsibility as a prosecutor to keep cases from reaching the Supreme Court's time limits (18 months in provincial court and 30 months in superior court from the time a charge is laid), and that the Ontario Court of Appeal, in a case last September called R v. Manasseri, had urged Crown prosecutors to seek more direct indictments as a way to avoid delay. She said the Supreme Court itself had said that in some circumstances, it is appropriate to request a waiver of the right to a timely trial from an accused. And she noted that there is no constitutional right to a preliminary hearing.

She also said the defence lawyers "cast aspersions" on her integrity and that of Ms. Jackson, and that it would now be difficult to empanel a fair jury, once the case goes to trial on some or all of the charges. "Members of the public who read that article on March third may not realize that just because Mr. Derstine characterized what happened as extortion doesn't make it so. Extortion is a serious criminal offence."

And she said Mr. Derstine's comments violated the lawyers' code of conduct in creating a "substantial likelihood of prejudicing a party's right to a fair hearing."

Mr. Derstine did not back down from his comments. He told Justice Rutherford he had been in "high dudgeon" when he made the remark to Ms. Glendinning (he did not repeat the word "extortion" in court, but also did not apologize for having used it). He said he did not see how the waiver could be characterized as voluntary in the circumstances. But he said he has no intention of seeking to get out of it. Justice Rutherford accepted his statement and did not make further comments about the dispute.

In an interview, Mr. Derstine said the Attorney-General holds no public hearing on a direct indictment, and no reasons are given to the defence for a decision to go ahead with one, so any decision is virtually impossible to challenge.

"If the Crown is raising these things, I have every reason to believe the Attorney-General will go along with them, for all the reasons she said."

On whether his client's waiver of the right to a timely trial was voluntary, he said, "If someone says, 'Give up your children or your fortune,' sure, you've got a choice, right? If you give somebody a horrible, nasty quid pro quo, and then you say 'Make a decision,' you can't say it's a voluntary decision."

He said the courtroom skirmish reflects the "convulsion that's currently going on in the criminal-justice system about how to properly deal with Jordan."