The trial of former Bre-X Minerals Ltd. geologist John Felderhof will take another three years to finish if the current judge is left in place, a lawyer for the Ontario Securities Commission said Monday.
Michael Code told Mr. Justice John O'Driscoll of the Ontario Superior Court that Mr. Felderhof's trial has "completely broken down" because Ontario Court Judge Peter Hryn has prevented the OSC from presenting its evidence and has allowed the defence to continually make allegations of misconduct against the prosecution.
"If the trial continues in the current fashion, we're looking at three years to complete the case," Mr. Code told the court.
Judge O'Driscoll, who was presiding over the first hearing into the OSC's application to have Judge Hryn removed, ruled that a full transcript of the first six months of the Felderhof trial must be prepared by the end of August.
Then the OSC's attempt to get a new trial can go to a week-long Superior Court hearing in mid-November, after the lawyers have had time to complete their preparations.
If the transcripts are ready earlier, the hearing can start earlier, he ruled.
The judge also decided that the court will hear, at the same time, the counterapplication filed by Mr. Felderhof's lawyer, Joseph Groia, that asks for the OSC actions against Judge Hryn to be dismissed.
Judge O'Driscoll's ruling means Mr. Felderhof's trial on charges of illegal insider trading and issuing misleading press releases is in limbo at least until the fall.
But after the hearing Monday, Mr. Code said the overall effect of an order removing Judge Hryn would be to speed up the Felderhof case.
He said that if a new judge is named, a new trial could be completed in 12 weeks - the original time frame set for the case before it started last fall.
"We think we're speeding it up [by asking for a new trial]" Mr. Code said.
The trial in front of Judge Hryn has been bogged down by lengthy disputes between Mr. Groia and the OSC's lead prosecutor Jay Naster, mainly over the admissibility of evidence.
But the OSC has also been slow to present its case. Mr. Naster's opening statement, for instance, took almost eight hearing days to present.
Only two witnesses have appeared so far, and neither has completed his testimony. As many as 30 are expected to be called by both sides, if the trial is allowed to continue.
Mr. Groia argued Monday that his counterapplication to reject the OSC request for a new trial could be heard as early as May, because it required transcripts of only two key days of the trial.
But Judge O'Driscoll said all the arguments should be heard together, and the court would need the full transcripts to do that.
Mr. Groia's counterapplication said the OSC's request for a new trial will "interfere with the orderly administration of justice" and will lead to "substantial prejudice to [Mr.]Felderhof."
Mr. Code, however, told Judge O'Driscoll that Mr. Felderhof should not be affected at all. He is not in custody, has not had to post bail and has not even appeared at his trial, so "there is not the slightest hint of any possible scintilla of prejudice against this man," Mr. Code said.
Mr. Groia told the judge that the OSC's actions show a "shocking disregard" for the lower court where the Felderhof trial has been taking place, and that the OSC is "attempting to hijack this trial."
Judge Hryn should have been asked to deal with the allegation that he is biased before the OSC went to the higher court for a ruling, Mr. Groia said.
"The trial judge is in the best position to deal with an application of this sort," he said.