It was a complex case that involved the execution of a search warrant, computer forensics and over 200 e-mails. After disclosure was complete, the matter was scheduled for a preliminary hearing beginning in June 2011. The delay in getting to that stage was caused in part by the complexity of the matter.

In the spring of 2011, after extensive negotiations between the Crown and defence, the Crown formally withdraw the charges of criminal libel and extortion. It proceeded only on the two counts of criminal harassment. At that point, the preliminary hearing dates were converted to trial dates. The trial commenced in June 16, 2011. J.D. was represented at trial by Erec Rolfe.

Due to the shear volume of material, the trial did not complete in the allotted time. Accordingly, additional trial dates were scheduled, beginning in April 2012.

In Canada, everyone charged with an offence has a right to a trial within a reasonable time, pursuant to s. 11(b) of the Charter of Rights and Freedoms. In September 2011, the defence brought an application seeking a judicial stay of proceedings because of unreasonable delay.

What constitutes a “reasonable time” is not a fixed period – it changes from case to case and depends on a number of factors, including the complexity of the case. The application was heard on April 2, 2012. The Crown argued that the delay in this case was reasonable, in light of the complexity of the matter. Erec, on the other hand, argued that even considering the complexity of the matter, it took too long to get to trial.

On May 7, 2012, the court gave it’s reasons. The court accepted that the matter was a complex one. However, the court ruled that J.D.’s constitutional right to a trial within a reasonable time had been violated. Accordingly, the court stayed the proceedings pursuant to s. 24(1) of the Charter. His Honour’s ruling brought an end to a long fight on behalf of J.D.

The facts of the case were not disputed: in June 2009 S. killed his landlord, stabbing him multiple times for no apparent reason. The issue at trial was whether S., who had a history of serious mental illness, was able to perceive at the time of the murder that the act of killing was morally wrong.

Although two well-regarded psychiatrists testified that S. was not criminally responsible the killing, the Crown vehemently contested their findings in court. In spite of his own expert witness’s opinion to the contrary, the Crown contended that S. could in fact distinguish right from wrong. Ms. Penman fought for the experts’ opinions to be recognized, and presented further witnesses with first-hand knowledge of S’s mental illness.

The judge agreed with the defence and found S. not criminally responsible for first-degree murder.

He was charged with two counts each of sexual assault, choking to overcome resistance, and forcible confinement.  He was accused to assaulting his roommate and an acquaintance in separate incidents.

S.M. elected to to be tried by a judge and jury, and requested a preliminary inquiry.  Erec Rolfe conducted the preliminary inquiry in November 2011.  At the preliminary inquiry, Erec successfully elicited numerous significant admissions from the complainants that cast great doubt on their stories.

After the preliminary hearing, the Crown Attorney for Grey County offered to the withdraw the both counts of sexual assault, both counts of choking to overcome resistance, and both counts of forcible confinement.  The Crown advised that he was doing so in light of Erec’s cross examinations at the preliminary inquiry.

S.M. pleaded guilty to two counts of simple assault and was sentenced to 45 days of pre-trial custody, which he had already served.  Before the serious charges were dropped, he was facing a penitentiary sentence.

When a client makes bail, both he and his sureties are often required to promise a sum of money without deposit.  That means that if the client breaches his bail conditions, the Crown can bring a proceeding to take (or “estreat”) all or some of that money from the client and/or his sureties.

C.L. is a client who has numerous serious charges before the courts.  C.L. was granted bail in the amount of $70,000, given the seriousness of his charges.  The Crown alleged that while out on bail, C.L. breached his conditions.  The Crown then brought an estreatment hearing, seeking payment of the full $70,000.

In January 2012, Erec brought several procedural deficiencies in the Crown’s case to its attention.  After considering the issue, the Crown advised that it would abandon the estreatment hearing in light of those deficiencies.

As such, C.L. and his sureties saved a large sum of money.

The Crown alleged that after an argument with his roommate, P.D. “judo-chopped” his roommate with his left hand.  It was alleged that the roommate fell to the ground and P.D. returned with a machete and threatened his roommate with it.

P.D. was right handed.  At the trial, he testified that he only fought in one style: boxing.  He advised the court that he only used his left hand for one purpose when fighting – a left hook.

Erec successfully impeached the roommate’s credibility by eliciting numerous inconsistencies in his testimony.  Erec then argued to His Honour that if P.D. were to fight his roommate, and use his left hand, he would only use it for a left hook, not a judo chop.

His Honour agreed, accepting that as a former boxer, P.D. took great pride in his boxing skills.  After describing the mechanics of a left hook, the judge found that if P.D. were to fight his roommate, his pride would have dictated that he use a left hook, not a judo-chop.  His Honour accepted that P.D. would be ashamed to use a judo-chop.

Regarding the weapons charge, Erec successfully argued that the machete in issue had numerous uses, including as an ornamental item.  The judge agreed that the Crown did not prove beyond a reasonable doubt that the machete was a weapon.  His Honour acquitted P.D. of all counts.

J.B. was charged with the offences in early 2011.  He was facing a lengthy prison sentence, if convicted.  After a preliminary hearing later that year, the trial began on March 19, 2012 at the Superior Court of Justice in Toronto, Ontario.  The trial consisted of the testimony of the complainant and five police officers, and the introduction of over 50 exhibits.

Erec successfully argued to the jury that the complainant’s story lacked the “ring of truth”, and inconsistencies in her story could not be explained by mere lapses of memory. Erec argued further that the complainant, who had a long criminal record, found herself in a situation where she had to fabricate the allegations.  In particular, she was seen leaving J.B.’s apartment, where he was left with serious injuries.  Erec argued that her story was doubtful and that J.B. was entitled to and deserved the benefit of that doubt.

On March 27, the jury returned after deliberating for two hours.  They acquitted J.B. of all counts.  After being in jail for almost one year, he walked from the prisoner’s box, and out of the courthouse, a free man.

Read this article in Lawyer’s Weekly to learn more about the effect R. v. Shmickle could have on combatting the legality of mandatory minimums and putting discretion in sentencing back in the hands of trial judges: http://www.lawyersweekly.ca/index.php?section=article&volume=31&number=39&article=2

As of today’s ruling, individuals convicted of possession of a firearm will not be subjected to a mandatory three year minimum sentence.

Mr. Smickle, the young man Mr. Derstine was appearing on behalf of, was in possession of a firearm for a matter of minutes when he picked it up and took pictures of himself which he posted on the social networking site Facebook. Even though he had no criminal record, as a result of the mandatory minimum, he was facing a minimum sentence of three years in a federal penitentiary. Thanks to today’s decision, he will serve and much more fair and appropriate sentence.

Mandatory minimums are becoming more and more abundant in Canadian law under the Harper government. Today Justice Molloy of the Superior Court of Justice agreed with Mr. Derstine that these mandatory minimums can lead to cruel and unusual punishment and, where they do, should be struck down under the Canadian Charter of Rights and Freedoms.

Read more about this decision here:

http://www.theglobeandmail.com/news/politics/ontario-court-rules-mandatory-minimum-sentence-unconstitutional/article2336816/