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An Ontario prosecutor is urging a judge to remove a defence lawyer from a first-degree-murder trial because the defence lawyer is not available until next March, and the prosecution fears part of its case will be thrown out for unreasonable delay as a result.iStockphoto/Getty Images/iStockphoto

An Ontario prosecutor is urging a judge to remove a defence lawyer from a first-degree-murder trial because the defence lawyer is not available until next March, and the prosecution fears part of its case will be thrown out for unreasonable delay as a result.

If the move succeeds, it would be the first time the Crown has had a defence lawyer removed to prevent delay since a Supreme Court of Canada ruling last summer set new time limits for criminal proceedings and imposed obligations on defence lawyers, prosecutors and judges to minimize delay.

Prosecutors have applied to remove defence lawyers over allegations of conflict of interest, misconduct or incompetence, but the Criminal Lawyers' Association, which is an intervenor in the case, called the current request extraordinary.

Read also: Courts shaken by search for solutions to delays

"The ruling … did not provide a foundation to remove counsel of choice for reasons relating to unreasonable delay," they said.

The case involves two co-accused the Crown wants tried together. A delay in the availability of the defence lawyer for Curtis Murray of Toronto, accused of first-degree murder in the March, 2015, killing of 17-year-old Trevor Seraphine, means the delay would affect his co-accused, his brother Corey Murray. Criminal defence lawyers view the right to counsel of choice as an important element in Canadians right to defend themselves against criminal charges.

The Criminal Lawyers' Association and the Toronto Lawyers Association are intervening to oppose the Crown's request.

But the Crown argues the right to choose a lawyer is not absolute.

"Curtis Murray should not be permitted to hold Corey Murray, the public, the victim's family, the witnesses and the administration of justice hostage in order to preserve his right to counsel of choice," prosecutors Rochelle Direnfeld and Michael Wilson say in a legal brief presented to the Ontario Superior Court. Mr. Murray's right to counsel of choice "is subject to express limitations, which include the requirement that his chosen counsel be available to conduct the trial within a reasonable time."

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.

The Murray case is the latest example of how the justice system is grappling with the complications of that ruling.

The brothers were charged within two weeks of the killing and, after a preliminary inquiry, were committed to trial last October. A court offered dates for a six-week trial the following September, October, or January, 2018, all of which were acceptable to the Crown, and to Corey Murray's lawyer, Boris Bytensky.

But Sid Freeman, who represents Curtis Murray, could not be available until March, 2018, because she is representing a client in another murder trial. In its legal filing, the Crown says that, by next March, the case would have reached 36 months since the charges were laid – well over the 30-month ceiling the Supreme Court set for proceedings in superior court.

Ian Smith and Amy Ohler, representing The Criminal Lawyers' Association, said state interference in the lawyer-client relationship should be permitted only in the most compelling circumstances. The Jordan ruling "did not alter the discretion afforded to judges in the setting of dates for trial, nor did [it] alter the practical reality that counsel must be afforded reasonable latitude in scheduling dates," they said in a brief.

Mr. Bytensky is proposing separation of the trials, partly for reasons unrelated to delay. The Crown says separating the trials would harm the prosecution's case. Ms. Freeman says she views severance as an acceptable alternative.

Ontario Superior Court Justice Todd Ducharme said he, like the Criminal Lawyers' Association, viewed the request as extraordinary, and added he was having trouble dealing with it when no one had applied to have the case dismissed for delay. That led to a sharp exchange when Ms. Direnfeld, the prosecutor, outlined her concern that a murder charge would be dismissed:

"It is the Crown's position, based upon the Jordan framework, and given the resulting delay … that there is substantial likelihood of –"

"Well, I'm not interested in substantial likelihoods," the judge said. "I want to know whether in my view, it would result in a stay. If I were to determine now that the later date [March, 2018] would result in a stay, then it seems to me either I would enter that stay or I would increase the chances for a severance."

He said Ms. Direnfeld could concede a violation of the right to a timely trial: "You can make this simple."

But she said that would be difficult because Corey Murray and his lawyer, Mr. Bytensky, have not declared they are seeking a stay. And when Justice Ducharme asked Mr. Bytensky if he could have materials ready for the court to review by Thursday on the subject of delays, Mr. Bytensky said he could not, nor could he be compelled to apply for a stay to advance the Crown's case for removal of Ms. Freeman. He also said he would not waive his right to seek a stay over delay at some future time.

In her legal filing, Ms. Freeman said that even the earliest date available is 30 months off, and that the Crown has not provided any evidence on why the case has been delayed that long. (Delay caused by the defence does not count in the calculation of how long legal proceedings take. But the issue in this case is delay by one lawyer affecting a separate accused.) A client's choice of a defence lawyer is not simply about competence but trust, she said in an interview outside the courtroom. "The rest of their life is literally at stake. It is probably one of the biggest decisions – choice of counsel – that that person will ever make in their life."

The hearing on the Crown's request to remove Ms. Freeman resumes on Wednesday.

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