Counsel of choice a key defence right: Gadhia

By Jennifer Pritchett, Associate Editor

Removing a defence lawyer from a first-degree murder trial because the Crown fears part of the case could be tossed is not the way to deal with court delays and also attacks a fundamental right of the accused, says Toronto criminal lawyer Roots Gadhia.

“To replace defence counsel with a new lawyer who may not have the full knowledge of the file has the potential to hurt the client’s ability to be represented properly,” she tells

Gadhia, principal of R. Roots Gadhia Criminal Defence Law, says an accused’s right to counsel of choice is a vital part of their Constitutional entitlement to defend themselves.

She comments as the Globe and Mail reports the Crown asked a judge to take a defence lawyer off a murder trial because the counsel wouldn’t be available until March 2018, and the prosecution fears the charge could be stayed for unreasonable delay.

The prosecution wants the two co-accused tried together and a delay in the availability of one of the defence lawyers means it would impact the case of the other accused, says the article.

“The Crown argues the right to choose a lawyer is not absolute,” says the newspaper.

Both the Criminal Lawyers’ Association and the Toronto Lawyers Association oppose the Crown’s request and are interveners in the case, says the Globe.

If the prosecution is successful, it will be the first time since the Supreme Court of Canada in 2016 handed down new timelines for trials to be heard in R. v. Jordan, says the article. The SCC says a maximum of 18 months is permitted after a charge is laid and a trial scheduled for provincial court and 30 months in Superior Court.

In the Ontario case involving the Crown asking that defence counsel be removed, the prosecution says by the time the trial is set for March 2018, it would be 36 months since the charges were laid — well past the 30-month ceiling set for Superior Court, says the article.

The matter is the latest example of how Canada’s justice system is still struggling with how to deal with the new timelines set out in the Jordan ruling.

“Judges in Alberta and Ontario have dismissed two charges of first-degree murder over unreasonable delay since the Supreme Court ruling involving a drug-trafficker named Barrett Jordan,” reports the Globe.

Gadhia says, “The dust is settling on Jordan and it is understood that delay beyond the realm of 30 months (in Superior Court) must be explained by the Crown.

“The Crown’s failure to proceed expeditiously should not be used as a sword against the defence,” she says. “A preemptive attack by the Crown on counsel of choice is not the way to deal with delay issues that Jordan has raised.

“Replacing the defence counsel of choice after they have ushered a case through the preliminary hearing process because the Crown is concerned they may not be able to get the matter on the trial docket to meet the deadlines set out in Jordan may harm the accused’s defence.”

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