An Ontario judge sent a loud blast across the bow of the province's overloaded court system yesterday, throwing out domestic-assault charges against a man who was not given a bail hearing until 24 days after his arrest.
"Individuals have been allowed to languish in custody awaiting show-cause hearings," said Mr. Justice Howard Chisvin of the Superior Court of Ontario. "The serious nature of this matter can only be remedied by the most significant remedy available - that being a stay of the charges."
Before freeing Davood Zarinchang on four charges of assault, three threatening charges and two mischief charges, Judge Chisvin went further and ordered the Crown to also pay his legal costs as a punishment for its "lackadaisical attitude."
Judge Chisvin said that the Ministry of the Attorney-General bears sole responsibility for the "serious and flagrant ... disaster that was afoot" in the Zarinchang case.
"The time period that the applicant experienced here far exceeded what would be, or should be, acceptable," he said. "It is simply unacceptable that an individual is held in custody and wants to proceed with his show-cause hearing, and is unable to do so because of a lack of space."
The criminal defence bar is growing increasingly militant about the difficulty of obtaining bail hearings for clients who may ultimately never be convicted of a crime.
Under the law, individuals have a right to a bail hearing within 24 hours of being arrested. In addition, the Crown cannot adjourn a bail "show-cause" hearing for more than three days. However, in many jurisdictions, the deadlines have become a mockery.
The significance of Judge Chisvin's decision will mushroom if other judges choose to follow his example and enforce strict time limits for bail hearings.
"I'm hopeful that whatever can be done is, in fact, done to bring an end to this travesty," Mr. Zarinchang's lawyer, Boris Bytensky, said in an interview yesterday. "This includes judges issuing similar rulings, but it also includes the willingness of other defence lawyers to make the effort to bring these challenges forward."
On four occasions during the 24 days that Mr. Zarinchang waited for a bail hearing, family members or employers showed up at the Newmarket, Ont., courthouse to act as sureties. His case was continually bumped back on the court docket because of cases in which defendants had been waiting even longer.
Judge Chisvin said that the Crown cannot helplessly throw up its hands and say the lists are too long. Sureties may not be able to take time off work to keep coming to court, and defendants may run out of money before their trial simply paying their lawyers to sit around in courthouse hallways all day, he said.
"The potential for abuse here is great," the judge said.
He specifically rejected Crown counsel Michael Demczur's contention that the case had reflected an unusual confluence of circumstances that created an unpredictable "perfect storm."
"Even if I were to accept that submission - which I do not - this perfect storm was a predictable storm that could have been avoided with proper preparation and management," Judge Chisvin said. "The applicant should not be left to flounder on the seas of neglect by those responsible for ensuring sufficient resources exists."