R. v. Murtha, 2013 NSPC 28

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Murtha, 2013 NSPC 28 Date: April 24, 2013 Docket: 1924901-1924924 Registry: Halifax Her Majesty the Queen v. Richard Anthony Murtha DECISION Judge: The Honourable Judge Jamie S. Campbell Heard: April 15 and 16, 2013 Decision: April 24, 2013 Charge: cc 380(1)(

a) x 8; cc 380(1)(

b) x 9; cc 334(a); cc 336; cc 362(2)(

a) x 2 Counsel: Alonzo Wright - Crown Attorney Elizabeth Buckle - Defence Counsel By the Court : Nature of Application: [ 1 ] Mr. Murtha has been charged with 21 counts of fraud. They are alleged to relate to his law practice covering the period from 2003 to 2006. [ 2 ] He has made an application for a stay of proceedings. He claims that his rights under s. 11(

b) of the Canadian Charter of Rights and Freedoms have been breached because of the delay in getting this matter to trial. The time in question includes the three and a half year period from the date the charges were laid until the original dates for trial in December 2011. The trial did not proceed on those dates. [ 3 ] The claim also involves some of the delay arising after that time, from October 2012 when this application was first scheduled until the dates set for the conclusion of the trial in August 2013. That time relates to disputes about the disclosure of information. [ 4 ] Mr.

Murtha’s application had included a claim with respect to “lost evidence”. That which was thought to have been lost or non-existent or already made available, has either been found, confirmed to exist in some form or made available once again. At this point it will suffice to say that the “lost evidence” application brought by Mr. Murtha has been abandoned.

Trial dates and application dates: [ 5 ] Mr. Murtha carried on a practice of law under the name “R.A. Murtha & Associates” during the time period to which the charges relate. He was suspended from the practice of law by the Nova Scotia Barristers’ Society (“the Society” or “NSBS”) on 6 January 2006. On that date his files, records and assets including his computer were turned over to Darlene Jamieson, Q.C., a receiver appointed by the Society, pursuant to s. 51(1) of the Legal Profession Act . [ 6 ] An investigation was conducted by the Society.

On 11 July 2006 the Society reported its findings to the Halifax Regional Police. [ 7 ] On 4 January 2007 Mr. Murtha was disbarred. [ 8 ] Mr. Murtha was arrested and charged with these offences on 26 June, 2008. He first appeared in Provincial Court on 23 July 2008. After 20 subsequent appearances by counsel, on 6 December 2010 trial dates were set beginning in December 2011. [ 9 ] The application as it relates to delay focuses first on the period from 26 June 2008 when Mr. Murtha was charged until December 2011, when the trial was originally set to begin.

No claim is made with respect to the two and a half years that elapsed from his suspension until he was charged. No claim is made with respect to various delays that happened after December 2011, when the applicant himself requested and was granted adjournments. Those were requested and granted because of Mr. Murtha’s own health issues, those of his then legal counsel Brian Smith Q.C. and because of the requirement eventually for Murtha to retain and instruct new counsel. [ 10 ] The delay claim does include some of the time after December 2011 though. Ms. Buckle first appeared as counsel for Mr.

Murtha on 5 June 2012. This application was then set for 10, 11 and 12 October 2012. On 8 June 2012, trial dates were set for 15, 16, 17, 18 and 19 April and 6, 7, 8, 9, and 10 May 2013. [ 11 ] Further delays resulted in the application for delay itself being delayed. The application could not be completed in October 2012, and the April 2013 trial dates have now been used for the application. During the course of hearing this application on 16 April 2013, dates were set for the conclusion of the trial in August 2013.

Issues from June 2008 to December 2011: [ 12 ] The matter has been plagued throughout by complications relating to the disclosure of documents. Some of those documents were client files. The issues of privilege and client confidentiality had to be carefully addressed. Some of the information sought was found in the accounting and practice management materials that related to Mr. Murtha’s law practice. [ 13 ] Det. Constable Hewitt was the investigating officer for the Halifax Regional Police. This matter was far from usual in his view.

The complaint was made by the Society and he assumed the Society would cooperate in passing over the documents required to do his investigation. That was not to be. He needed to have a search warrant to get those documents and even at that was not entirely sure what he was supposed to be looking for. He arranged to execute the search warrant on 27 April 2007 and was presented with three boxes. Two boxes contained non-privileged documents and a third was sealed. He said that he had no idea what it contained.

The sealed information remained sealed until an application that was eventually made to the Supreme Court was completed in November 2009. [ 14 ] The charges were laid in June 2008 now almost 5 years ago. Mr. Murtha already had counsel. Brian Smith Q.C, had been representing him on the matters that related to professional discipline. [ 15 ] On 23 July 2008 Mr. Smith appeared in court for Mr. Murtha. Mr. Smith asked that the matter be set over until the end of October.

He indicated that he had received four bankers’ boxes of binders and was trying to get access to the client files which he believed to have been taken by the NSBS and which he presumed to be in the custody of the police. Mr. Smith didn’t have to review what he had to know that the files seized by the NSBS would be relevant. If the Crown had for some reason assumed that the contents of the sealed box provided in response to a warrant could simply remain sealed, Mr. Smith’s statement could be seen as a fair head’s up that this was not to be. [ 16 ] In October of 2008 Mr. Smith on behalf of Mr.

Murtha began writing letters in an effort to get disclosure. Mr. Smith wrote to the Crown Attorney, Diane McGrath on 22 October, 2008. That letter sets out an itemized list of the disclosure materials required. [ 17 ] On 30 October 2008 election was adjourned to give the Crown the opportunity to respond to the disclosure requests contained in the letter. At that appearance, Ms. McGrath for the Crown said: I anticipate that six weeks would be enough time for us to get the material in our possession, provide copies to Mr.

Smith and, as well, provide him enough opportunity to review it so that when we come back on the 10 th we’ll be in a position to move this matter forward. Or not. [ 18 ] There was no suggestion at all at that time that the Crown would step aside and require Mr. Smith to sort out issues of confidentiality and privilege with the NSBS. The indication was that a further warrant might be required, in addition to the one that had

been executed with respect to the NSBS in April 2007. [ 19 ] The matter did return to court on 10 December 2008. The Crown did not yet have the materials in its possession. They had not yet been provided to Mr. Smith and of course, he had not yet been able to review them. No further warrant had been executed to obtain the disclosure requested in Mr. Smith’s letter of 22 October, 2008. [ 20 ] At a court appearance on 24 February 2009 the Crown advised the court that it was contemplating an application to Supreme Court to access the materials. These would be the materials obtained in April 2007 and sealed. Mr.

Wright, on behalf of the Crown said; There is still some further disclosure that we are seeking in regards to this matter, including a document that is housed here in the Provincial Court that we need to make application to the Supreme Court to get access to those documents. That application process is underway . I am in contact with the Barristers’ Society in terms of getting those documents released and hope to have them released in the near future.

That being said, once they are released my friend will need time to review them and speak to his client about that. (emphasis added) [ 21 ] The parties returned to court on 15 April 2009. At that time the application had not yet been filed. Once again, Mr. Wright for the Crown said, Your Honour this is a rather complicated process that we’re going through right now. We’re asking that the matter be put over till June 30 at which time we hope to have the information obtained through the court process.

There’s a rather formal application that will have to be undertaken to get this information. [ 22 ] The application to the Supreme Court was made on 28 May 2009. Counsel for the Nova Scotia Barristers Society and the Crown appeared in Supreme Court on 4 June 2009. Neither Mr. Murtha nor his counsel was present. They had been given no formal notice of the application and did not have copies of the documents involved in the application. The Crown requested that the matter be adjourned. [ 23 ] The matter returned to Supreme Court on 18 June 2009. Justice Duncan asked whether anyone was there to represent Mr. Murtha.

Mr. Wright indicated that Mr. Smith was “aware of the application”, that was before the court that day. It was adjourned so that the Crown’s application could be perfected. [ 24 ] The matter returned to Supreme Court on 25 June 2009. On that date Justice Coady asked if the matter was being done “ex parte”. Mr. Nielson for the NSBS answered that it was. A date for hearing of the application was set for 28 September 2009. [ 25 ] When the parties came back to Provincial Court on the scheduled date of 30 June 2009 the Crown requested that the matter be adjourned until 10 July. On 10 July 2009 Mr.

Wright appeared for the Crown and Mr. Smith for Mr. Murtha. Mr. Smith expressed his frustration with the process to that point. We’ve been looking for disclosure of whatever is in these various packages for some considerable time, back even before Mr. Wright was on the file, and I can’t do anything for Mr. Murtha until such time as I have, you know, complete disclosure. [ 26 ] Judge Brian Gibson asked what would appear to have been a very pertinent and timely question and put the Crown on notice that Mr. Murtha’s charter right to a trial within a reasonable time was at stake.

It is important to set out Judge Gibson’s comments at some length. I gather for the record then the….it is the view of counsel that these records, in the possession of this third party … or notwithstanding the fact that the records are in the possession of a third party, nevertheless fall under the Crown’s obligation to disclose? Is that essentially the position that has been taken here? I only say this from the point of view that as these matters proceed along I’m not unmindful, and I suspect counsel is not unmindful, of the fact that time is elapsing and Mr.

Murtha’s right to a trial within a reasonable time is behind all of what’s taking place. So, I simply make these observations for they’re worth, but infer from what I’m hearing today that Mr. Murtha believes, I assume, that the Crown has some duty to disclose these records. Who has made the application, by the way before the Supreme Court? Has the Crown made that application? [ 27 ] Mr.

Wright confirmed that the Crown had made the application before the Supreme Court to have the documents unsealed on behalf of the defence who had requested the documents. [ 28 ] Judge Gibson noted that in his view it was important “that the record be fulsome relative to what’s transpiring here.” He went on to say that that was why he had raised the question. [ 29 ] On November 12 2009 the parties were back before Judge Gibson. At that time Mr. Wright advised the court that the decision from the Supreme Court would not be available for about two more weeks.

The matter was set over until 14 January 2010. [ 30 ] The decision respecting privilege was rendered by Justice Farrar, then of the Nova Scotia Supreme Court, on 17 November 2009. From application at the end of May to decision in mid-November, that process took about 5 and a half months. [ 31 ] The matter was adjourned until 23 February 2010. [ 32 ] Mr. Smith wrote to the Crown on 10 February 2010 advising that all but two of the items requested in the 22 October 2008 letter remained outstanding. On 23 February 2010 the Court was advised of the ongoing issues with disclosure. Mr.

Smith advised of the request to have a production order prepared by the Crown to obtain information from the Receiver and the NSBS. And I’ve suggested to my friend that a production order be issued and served upon the receiver and perhaps that’ll have some impact

upon her. I don’t know what “I’ll get back to you with my position” means. This is a very serious criminal matter for which my client has significant exposure, and it’s just been going on and on and on. I need to have disclosure of everything I can possibly get my hands on that’s relevant to the proceeding. I appreciate my friend’s difficulty, but I have the difficulty that’s been quite a burden to represent my client properly. [ 33 ] When asked by the court what was being requested Mr.

Wright, for the Crown, indicated that, “I think we’re asking to have the matter set over one more time to allow us to get a position from Ms. Jamieson in relation to the information that we’ve requested.” [ 34 ] The matter was adjourned until 1 April 2010. At that time Mr. Smith referred once again to the 22 October 2008 letter. He said that 29 of the requested items had not been provided. [ 35 ] Mr. Wright at that time made reference to a letter from Ms. Jamieson of 17 March 2010 in which she stated that she had nothing else to provide to the Public Prosecution Service. At that time Mr.

Wright expressed the view that they had got “everything that was there” and had provided it to Mr. Smith. He further went on to say that given that there was a denial on the behalf of the receiver that there was anything further in her possession, there were no grounds for a production order and one could not be granted. In any event Your Honour, I understand this matter is getting quite stale-dated in its length that it’s been before the court.

The Crown has made every effort, in its opinion, to get this information and provide it to the defence. [ 36 ] Judge Gibson made reference at that appearance to the obligation of the Crown to make full disclosure. He stated as a preliminary opinion that an individual who has an honest belief that there are documents within the possession of the Crown that are material to full answer and defence and not being disclosed is in a position of withholding his election until those items are disclosed. [ 37 ] He went on to say, The Crown may take a different view on that particular issue.

The Crown may say, “We have disclosed everything that is within our power to disclose and we can do nothing more.” I’m not suggesting that that’s the position that’s being advanced by the Crown here today, I don’t hear that position being advanced by the Crown, but if, in fact, that is the position… Mr. Wright responded, “I think you’re right,Your Honour”. [ 38 ] The Crown and defence had reached what amounted to a stalemate on the issue of disclosure. They returned before Judge Gibson on 16 June 2010 to make representations on that issue. [ 39 ] In the course of that appearance, Mr.

Rick Harlten who had been asked by Chief Crown MacDonald to step in and assist with cataloguing and responding to the disclosure requests, made reference to the 22 October 2008 letter from Mr. Smith to Crown Attorney Diane McGrath. Over a year and a half after the letter was sent, the Crown was at least intimating that the 22 October 2008 letter had not ever been received. Mr. Harlten stated, That letter purports to have been sent to Ms. McGrath, a senior Crown Attorney, who was originally responsible for the file and who has since transferred to the Sydney office of the Public Prosecution Service.

Part of my conversation with Mr. Smith yesterday was to confirm whether he was aware that Ms. McGrath ever got that letter and whether… and I want to be clear on whether Ms. McGrath had ever given her undertaking that each and every one of those supplemental requests for disclosure would be fulfilled or could be fulfilled by the Crown. After my discussion with my learned friend I spoke with Ms. McGrath directly, in the presence of Mr.

Wright, and it’s her position, or recollection, that she does not recall receiving the letter, does not have a copy of it and did not specifically address those supplemental requests with Mr. Smith and certainly did not undertake to fulfill those requests. That Your Honour, jibes with the fact that the letter wasn’t in the Crown’s file when Mr. Smith referred it to Mr. Wright. [ 40 ] That once again, was 16 June 2010. The letter requesting disclosure was from 22 October 2008. The Crown was seriously questioning whether indeed it had ever been received. [ 41 ] Mr.

Smith in his affidavit dated 14 December 2012 indicated that he received the usual fax machine acknowledgement that the transmission had been successful. He recalled a conversation between himself and Ms. McGrath in which she confirmed that she had sent the letter to Det./Cst. Hewitt. Back in October 2008 transcripts of the court appearances suggest very strongly that the Crown did indeed have the letter. On 30 October 2008 Mr. Smith makes reference to a four page letter having been sent to Ms. McGrath setting out additional items for disclosure. In response she says, Yes, that’s correct.

Your Honour it’s going to be necessary for us to ascertain, first of all, where the material is kept at the moment, and I anticipate that where it is likely stored is not going to be accessible to us without a search warrant. [ 42 ] It would also appear as though a copy of that 22 October 2008 letter was forwarded from the Crown to D/Cst Hewitt. A 27 November 2008 letter from the Society indicates that D/Cst Hewitt was in possession of the letter and had forwarded it to them. [ 43 ] In argument and after hearing a considerable amount of evidence on the issue of the letter’s receipt, Mr.

Wright indicated that the Crown does not now dispute that the letter was indeed received when sent by Mr. Smith. The letter may well have gone missing from the Crown’s file at some stage, but it is clear now that the Crown received it. Mr. Smith had acted promptly in getting the disclosure request to the Crown. It appears as though Mr. Wright took over carriage of the file for the Crown in or about January 2009 and the letter was not included in the materials provided to him. From January 2009 until January 2010 when Mr. Wright asked Mr.

Smith for a copy of the 22 October 2008 letter, the Crown appears to have been responding, or more accurately not responding, to disclosure requests detailed in a letter that it didn’t have.

[ 44 ] From May through October 2010 the Crown provided Mr. Smith with some further disclosure. On 14 October 2010 Mr. Smith confirmed that some material had been received but that some still remained outstanding. On 9 November 2010 the parties were in court again. At this point the Crown asserted that full disclosure had been made. Mr. Smith disagreed. [ 45 ] On December 6, 2010 the matter was set for trial to commence on December 12, 2011.

Evidence with respect to the laptop computer and information contained or thought to be contained on it: [ 46 ] When this application was commenced it included a claim based on “lost evidence”. That aspect of the application was abandoned when the evidence that was at one time thought to have been lost, non-existent or withheld was disclosed. [ 47 ] One of the items Mr. Smith had been seeking throughout was his client’s laptop computer. The disclosure of the laptop and the materials on it was the source of confusion and considerable disagreement. It has now been described as a “red herring”.

Neither counsel now seek to rely on the circumstances surrounding that issue. [ 48 ] For an issue that has turned out to be a red herring, a lot of time was spent talking and writing about. It is in some senses a legal train wreck from which it is very difficult to avert one’s eyes even when told that at this point it really doesn’t matter very much to anyone. Reading the exchanges between the receiver and Mr. Smith and Mr.

Smith and the Crown, with the benefit of being removed from the situation, has that frustrating feel of listening to people talk at cross purposes who sound like they are speaking different languages without an interpreter.

In the correspondence and court appearances each party becomes more exasperated and it seems more distrustful with the other and it is hard not to feel a bit sorry for each of them, knowing what we know, or think we know, now. [ 49 ] To address it in the very briefest of ways, and to reduce it to its most basic points, it involves what is now understood to have been a misunderstanding amongst counsel acting in good faith. Ms. Jamieson, as receiver had Mr. Murtha’s laptop computer as an asset of the legal practice. Once authorized to do so she sold it to him. Mr.

Smith noted that programs that he believed to have been on the computer and that had been used by Mr. Murtha in the financial administration and general management of the law practice were no longer on the laptop when he received it. Mr. Smith believed that something was missing but could not provide a detailed list of everything that might have been there. Ms. Jamieson as receiver insisted that nothing was missing and that she couldn’t help Mr. Smith unless he could tell her precisely what he wanted. [ 50 ] During the course of the matter, from 2008 when the computer was provided to Mr.

Smith until very recently, there have been many exchanges about that issue. It was eventually resolved when Ms. Buckle obtained access to the mirror image of the laptop and was able to satisfy herself that no significant material was missing. [ 51 ] That skeletal

summary obviously misses many of the nuances and removes consideration of some of the more colourful exchanges. In light of the agreement that the laptop really had no impact on the delay of this matter, one way or the other, getting into those details might further and unnecessarily complicate things. From October 2012 to April 2013: [ 52 ] This application was originally set to be heard on October 10 and 11, 2012, well in advance of the scheduled trial dates for April 2013. Darlene Jamieson Q.C. was subpoenaed to appear. On the day that the application was to get started and on which she was to appear Ms.

Jamieson did not appear. Mr. Nielson, solicitor for the NSBS attended and advised that Ms. Jamieson was applying to the Supreme Court to have the subpoena quashed. The matter was adjourned to allow that application to proceed. Evidence from a computer expert and from Mr. Murtha was heard. The application had to be adjourned until 14 December 2013 pending the outcome of Ms. Jamieson’s application to have the subpoena quashed. [ 53 ] But that application was never made. The very next day after the appearance by Mr. Nielson, indicating that Ms.

Jamieson would be applying to have the subpoena quashed, a letter was received from Mr. Nielson indicating that now Ms. Jamieson would not be applying to quash the subpoena. The wrinkle was then however that Ms. Jamieson would not be available for court on 14 December 2012. [ 54 ] The matter returned to court on 14 December. The entire day wasn’t wasted. The evidence of Brian Smith Q.C. was heard. The matter was then adjourned to get some dates on which Ms. Jamieson might be available. On December 20 the parties were back in court to get those dates. [ 55 ] On 8 February 2013, Ms. Jamieson did appear in court.

Counsel advised then that the information that had previously not been available might now actually be available. Rather than examining Ms. Jamieson it was agreed by counsel that a better course of action would be to review what had just been provided to see whether there would even be a need to examine Ms. Jamieson and whether arrangements could be worked out to deal with issues of privilege and further disclosure. [ 56 ] On 1 March 2013 counsel appeared again. They advised that there were further issues with privilege that had arisen. Ms. Buckle indicated that the Society had advised that Mr.

Murtha could now have access to some of the materials because those were materials that he had either created or helped to create or to which he had had access while dealing with them in his capacity as a lawyer. The issue to be resolved was whether those files could be shared with his lawyer and potentially with the Crown. In other words, what Mr. Murtha had created could not be privileged from himself, which though it seems like a rather self-evident proposition must be

considered in the context of some very serious legal issues. [57] On 26 March 2013 the parties were back in court. This time, Ms. Buckle advised that she had indeed received practicemanagement material, the 2006 copy of material from the laptop, a 2008 mirror image of the laptop, and printed material from computersoftware relating to charged clients and time entered by Mr. Murtha. [58] The practice management material was described by Ms. Buckle as being entirely new. It had not been disclosed to herbefore. It included information that related to clients in relation to whom Mr. Murtha has been charged.

The other printouts includedcopies of various ledgers relating to clients in respect of whom charges have been laid. Some of the ledgers had not previously beendisclosed but Ms. Buckle conceded that the information contained on the ledgers had been previously disclosed. Some informationrelating to one specific client had not been disclosed previously. [59] A copy of material that had been uploaded to a server from the laptop in January 2006 when it was seized and the mirrorimage of the laptop taken in 2008 were provided. Ms.

Buckle has noted that most of that information is not new and was contained onthe laptop when it was returned to Mr. Murtha. She did note however that there were a number of emails that had been deleted from theemail folder in 2006, were not present in the 2008 copy and were not on the laptop when it was returned to Mr. Murtha. [60] The application was then finalized on 15 and 16 April. [61] The rescheduled trial had been set for the week of April 15 and the week of 6 May 2013. The first week of trial time has thenbeen lost to the trial and used for this application.

The trial is now scheduled for a week in May 2013 and a week in August 2013. The law as it relates to “unreasonable delay”: [62] The onus is of course on the applicant in this matter. He must show, on the balance of probabilities that his rights under s.11(

b) of the Charter have been breached and that a stay is the appropriate remedy. [63] As Justice Cacchione recently confirmed in R. v. Callender, 2013 NNSC 95, citing R. v. Conway (1989), (SCC), 49 C.C.C. (3d) 289 a stay of proceedings should be ordered in only the “clearest of cases”. [64] The Nova Scotia Court of Appeal has provided a

summary of the law as it relates to post-charge delay in R. v. MacIntosh2011 NSCA 111. The court affirmed the principles set out in the Supreme Court of Canada decisions in R. v. Morin (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 (Q.L.) and R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, [1990] S.C.J.No. 106 (Q.L.). [65] It is particularly valuable, given the broken chronology of this case, to take note of the comments of Justice Cromwell in R.v. Godin 2009 SCC 26. He said that it is important not to lose sight of the forest for the trees. He referred to Justice Sopinka’s commentsin R. v.

Morin, that the general approach is not by the “application of a mathematical or administrative formula but rather by a judicialdetermination balancing the interests which s. 11(

b) is designed to protect against factors which either inevitably lead to delay or areotherwise the cause of delay.” [66] That would not appear to mandate the simple application of judicial intuition based on a “big picture” sense of the situation. There is a process for deliberation and factors to be considered. The focus however should not be on the precise calculation of thenumber of days but on a balancing of the interests involved. [67] The s. 11(

b) interests to be balanced include the right to liberty and security of the person, and the ability to make full answerand defence. They are considered along with the factors that caused the delay and the societal interests of having a trial on the merits. [68] A court should consider the length of the delay and whether there has been a waiver of any time periods. The reasons for thedelay should be examined.

That should include a consideration of the inherent time requirements of the case, the actions of the accusedperson as they relate to the delay, the actions of the Crown as they relate to the delay, limitations on institutional resources and otherreasons for the delay. The reasons for a delay can be complex and in many respects interrelated. [69] Some cases move along at a slow pace because neither party seems particularly interested in having them get to a trial. Acomplex matter is assumed to take a longer time to litigate.

Trial dates will be later because there are difficulties in getting large blocks ofcourt time. It is easier to book a day of court time than to get two weeks for example. That in its own way feeds a more relaxed attituderegarding time. Counsel may take longer to review materials. They make take longer to respond to correspondence. No one isparticularly at fault but the sense of the matter as a long and complex one becomes almost a self-fulfilling description. [70] In that context it can be difficult to unravel the reasons why a case has taken as long as it has to get to court.

Focusing only onthe chronology and gaps of time is, to use Justice Cromwell’s metaphor, to see the trees but miss the forest. It is not a simple matter ofassigning “fault” for each period of delay and tallying them up. [71] The court should consider the prejudice to the accused caused by the delay. That prejudice may either be inferred or actual. [72] The nature of the case is also a consideration. The value to society of taking a matter to trial must be weighed against therights of the individual.

That is not to say that some matters are just so important that a long and otherwise unreasonable delay whichcompromises individual rights should be acceptable. Rights are not traded off against practical considerations but their scope andmeaning may be in

part informed or defined by how they apply in the real world.

[73] The remedy for a violation of an accused person’s right to be tried within a reasonable time is the issuing of a stay ofproceedings. “After the passage of an unreasonable period of time, no trial, not even the fairest trial possible is permissible.” R. .v Rahey (SCC), [1987] 1 S.C.R. 588 (S.C.C.) The delay in this case: [74] The first period of time for consideration is the time from the laying of the charge against Mr. Murtha in June 2008 until thedate initially set for the trial in December 2011 or about 42 months. There is then an intervening time from December 2011 until June2012.

No delay claim is made with respect to that time. The trial was delayed because of the illness of both Mr. Murtha and his legalcounsel Mr. Smith. The second period of time relates to the time leading from about June 2012 when Ms. Buckle was retained until thedate set for completion of the trial in August 2013. [75] In R. v. Morin (para. 35), the Supreme Court of Canada directed that an inquiry into the reason for a delay should be enteredinto only if the time period is sufficiently long to raise an issue as to its reasonableness.

A delay of three and a half years from charge totrial is, in itself sufficiently lengthy to justify that inquiry. The Crown did not dispute that. The Supreme Court Application: [76] In any matter there are time requirements that are inherent in the process. Inherent time requirements involve a considerationof things like retaining counsel and conducting bail hearings. There was no pause in the case to allow for the retaining and instructing ofcounsel. Mr. Smith had been representing Mr. Murtha through the process with the NSBS.

He was up and running right away. [77] Time was required in this case to resolve the issues related to claims of privilege. As it turned out, the court process ofresolving privilege as it related to the materials seized from the NSBS took about 4.5 months from 25 June 2009 when the Crown’sapplication was perfected until the decision was rendered by the Supreme Court on 17 November 2009. There is nothing unreasonableabout that time period. [78] What is noteworthy is that the application was made only in June 2009. A search warrant had been executed on the NSBS inlate April 2007.

The police had received boxes of documents, one of which had been sealed. They had been obtained as a result of asearch warrant which related to the criminal charges against Mr. Murtha. It would not be unreasonable to conclude that whateverinformation was in that sealed box would be relevant or potentially relevant to those charges and that it was sealed because the NSBSwas asserting claims of privilege. [79] The Crown could not have been unaware that issues of privilege and confidentiality were likely to arise. This was not the firstcase involving criminal charges against a lawyer.

The issue could well have been anticipated to have arisen very soon after the chargeswere laid. [80] In any event the application was made some months after the issue was raised by Mr. Smith. Mr. Smith gave the heads up onthat issue in July 2008 when he appeared in court. The Crown was aware, or certainly should have been aware of the nature of disclosurerequests made by Mr. Murtha’s counsel upon receipt of his letter of 22 October 2008. Mr.

Wright first made mention of an application ofthis kind on 24 February 2009, when he alluded to material being “housed” at the Provincial Court and that an application would have tobe made to the Supreme Court. He said, “That application process is underway”. [81] Despite being “underway” in February of 2009, the application wasn’t actually made until the end of May 2009 and“perfected” in June. That was about a year after the charges were laid and the Crown was aware of the sealed box of potentially relevantdocuments pertaining to criminal charges. [82] Once the application was made in June 2009 Mr.

Murtha was not a party to it. The Crown from the very outset acceptedresponsibility for dealing with the release of documents from the Society. That was clear from Ms. McGrath’s appearance on 30 October2008, Mr. Wright’s appearances on 24 February 2008, 15 April 2009, 10 July 2009 and 12 November 2009. The application before theSupreme Court was undertaken by the Crown. Mr. Murtha was not even a party to it. [83] When Justice Duncan inquired in court of 18 June 2009 whether anyone was in court for Mr. Murtha, Mr. Wright respondedthat, “Mr. Brian Smith is representing Mr. Murtha.

He’s aware of the application that’s going before the court today.” [84] At the 25 June 2009 appearance in the Supreme Court, there was discussion about service of notice on other parties andgiving them an opportunity to make representations. That appears to have related to former clients whose file materials were beingsought. There is no reference to Mr. Murtha or his counsel, in an application headed as Her Majesty the Queen and Richard Murtha. [85] Justice Farrar’s decision on the application notes as legal counsel, Mr.

Wright for the Crown, Andrew Nielson for theSociety and “Richard Murtha (Unrepresented/ Not Appearing)”. [86] In a letter to Mr. Wright dated 7 January 2010 Mr. Smith commented on that issue. As I read the decision, I was rather surprised to learn that Mr. Murtha was a named party to the Supreme Court application. I hadunderstood that the Crown was making its application to obtain access for disclosure purposes, to materials over which the Nova Scotia

Barristers’ Society had claimed privilege. I acknowledge that in various casual conversations you did advise me of your efforts to obtain this material. I was unaware that Mr. Murtha was a named party. Surely on that basis we should have been formally notified and afforded the opportunity to participate in the process. [ 87 ] Mr. Smith added that he certainly should have received copies of the briefs and materials filed. [ 88 ] Had that application been made with Mr. Murtha as an actual party rather than merely as a “named party”, Ms.

Buckle has suggested that other arguments could have been raised before the Supreme Court. Mr. Murtha through his counsel could reasonably have made arguments about the compelling nature of his right to a fair trial and of the need for him to have access if even in some limited way, to documents that he had created. [ 89 ] Ms. Buckle is in my view most certainly not “second guessing” the decision of Justice Farrar. Reading that decision in light of what has transpired more recently with regard to disclosure it is entirely reasonable to consider what might have happened had arguments been put forward on Mr.

Murtha’s behalf with respect to his compelling need to access the documents to enable him to prepare a defence. [ 90 ] She noted that there was certainly an argument that as the documents related to Mr. Murtha himself there was no privilege at all. For example, in the course of that application the Society sought to redact any information that might identify Mr. Murtha’s clients. As Justice Farrar noted, solicitor/client privilege encompasses the identity of the client. A

summary of actions taken by Mr. Murtha on a client file and correspondence between Mr. Murtha and his client were, of course, held to be privileged in an application between the Crown and the Society. Disclosure to the Crown or others would be a breach of the client’s right to privately consult a lawyer. [ 91 ] At the same time, it is not difficult to see how those documents could be important in the preparation of a defence with respect to charges that pertain to work done for those clients. It is also not unreasonable to suppose that Mr.

Murtha, as the person who created some of the documents and who of course knew the identity of the clients who had consulted him, might be able to look at those materials without practically breaching any confidentiality. [ 92 ] That option was not one that Justice Farrar had before him. The strength of that unmade argument is suggested by what has transpired in the past few weeks. The NSBS has now agreed to make material available to Mr. Murtha because he has already seen it. A letter that he wrote is then not privileged from himself. He can show it to his counsel Ms.

Buckle, based on her assurance of confidentiality as a barrister. That information would be intended to allow Mr. Murtha to access material that he had either previously created or to which he had previously had unrestricted access. The material remains privileged from the Crown. That potential “resolution” was not one that was likely to have been put forward when the matter was strictly between the Crown and the Society in the context of a formal application. [ 93 ] Had that material been made available for review by Mr.

Murtha and his counsel, the disagreements that caused the matter to lurch and stumble through almost all of 2010 might well have been avoided. The 22 October 2008 missing letter: [ 94 ] Mr. Smith’s letter to the Crown dated 22 October 2008 is important. That letter set out the detailed requests for disclosure. Those requests did not significantly change. It was not a situation of Mr. Smith moving the disclosure goalposts by demanding more each time something was received. It was not a matter of ill-defined requests that morphed into something different as time went on.

The requests he made in October 2008 were essentially the same ones he was making about 2 years later. [ 95 ] For some portion of that time, pretty much all of 2009, that important letter seems to have gone missing. The letter was not in the file that was given to Mr. Wright when he became involved in early 2009. Mr. Smith referenced the letter in his correspondence of 7 January 2010 to Mr. Wright. That seems to have been the first that Mr. Wright had heard of it. He asked Mr.

Smith for a copy soon after that. [ 96 ] In June 2010, a year and 8 months after the letter was sent and acknowledged as having been received, Crown counsel were in court indicating that the lawyer to whom it was addressed could not recall having received it. Mr. Smith maintained his professional composure during that exchange. It can only have been frustrating in the extreme. From October 2008 until June 2010 Mr. Smith was persistently pursuing disclosure.

Then he was told that his detailed request had never actually been received in the first place. [ 97 ] A considerable amount of time in the hearing of this application was spent in establishing that the letter was sent and was received by the Crown. That is no longer in dispute. [ 98 ] For about the full year of 2009, when disclosure was in dispute and when the Crown was before the Supreme Court with the NSBS arguing about privilege and confidentiality, Crown counsel did not even have in his possession a copy of the disclosure request.

Then, in June 2010, rather than simply acknowledging the misplacing of that important piece of correspondence Crown counsel were aggressively, and as it turns out incorrectly, trying to shift responsibility and arguing that the letter was never received in the first place. [ 99 ] So, from June 2008 until June 2009 no action was taken to unseal the box obtained from the NSBS and from January 2009 until January 2010 the Crown didn’t even have the list of disclosure requests that had been provided by Mr. Smith. The January 2006 statement/interview:

[ 100 ] Mr. Smith had difficulty in getting a version of Mr. Murtha’s statement, in a form that was not redacted, given to the Society at the time of the investigation. He was still looking for it in November 2010. Mr. Murtha was interviewed as part of that process on 10 January 2006. He was given a copy of what he had said but most of it was obscured by black marker. The man was being asked questions and he was responding to them. He could not get a copy because of issues of confidentiality. [ 101 ] There are legal issues involved. The confidentiality of client records is an important interest to protect.

It does seem more than just a bit strange that a person’s own statement is confidential from himself though. Of course there may be restrictions on how he can use that information to preserve confidentiality of clients who may be referenced by name in the statement, but the idea that his own spoken words can be confidential from himself is perplexing. [ 102 ] In cross examination as part of this application this matter, Mr. Wright asked Mr. Murtha whether the request for the statement of 10 January 2006 was really a request for something that did not exist. Mr.

Murtha had said earlier in his evidence that he had not given a “statement”. When the Society asked to speak with him he had agreed. On 10 January 2006 they met in the Bar Society office with him and Brian Smith. He swore an oath and was questioned for three hours. A recording was made. He said that he was asking for a copy of the transcript of that meeting or interview. [ 103 ] Mr. Wright suggested to him that because there was no “statement” and just a meeting, the request for disclosure asking for a copy of the “statement” was asking for something that did not exist. Mr.

Murtha replied that he believed it was entirely clear what was being requested. That would be particularly true given that the specific date of the statement or interview was included in the request for disclosure. [ 104 ] There is no evidence that the Crown at any time before that expressed confusion about what was being sought with respect to the January statement. That may not be entirely surprising given that the Crown had lost the letter setting out that request and didn’t have a copy of it again until January 2010. The Crown did provide a redacted copy of the very “statement” that Mr.

Smith had been requesting. [ 105 ] To suggest at the hearing of this application in October of 2012 that there was some confusion is nothing short of bizarre. To put it in the vernacular, it appeared as though Mr. Murtha was having his “chain yanked” on that issue. It seemed to be simply a “gotcha moment” of cross examination, not really significant in any real sense. In argument Mr. Wright was asked about what that perplexing line of questioning was about, assuming that he would confirm that it really meant nothing. He was asked whether it really said anything about the reason for delay at all.

He said that it did. He actually maintained that the lack of clarity in that request made response to that request more difficult. [ 106 ] A simple question is sometimes a proper response to that feeling of baffled incomprehension with which most reasonably self-aware people are sometimes overcome.

That question might have been along the lines of “What did you mean?” or “When you’re asking for an unredacted copy of the statement from 6 January 2010 do you mean an unredacted copy of the redacted document of the same date that we’ve already provided?” That simple inquiry might have got to the bottom of things pretty quickly. [ 107 ] The cross examination took place well after the dates to which the first claim regarding delay relate. Perhaps that exchange does provide some insight into why disclosure remained an issue for so long before the December 2011 trial dates were set. Mr.

Smith made a clear and prompt request for the disclosure of a number of items. Even in light of the confidentiality issues involved the request was to use his words, straight forward.

If the Crown was confused by the request for a statement to the NSBS made on 6 January 2010, because it was believed that a recorded interview had taken place on the same date and that an interview and a statement are two different things, the threshold for bewilderment is not very high. [ 108 ] Instead, the Crown chose to ask questions in cross examination about it 4 and a half years after the letter was sent and, it would certainly appear, 4 and a half years after it was received. The April 2010 warrant: [ 109 ] On 30 October 2008 Ms. Diane McGrath appeared for the Crown on this matter.

At that time she said that it was likely that information would not be accessible without a warrant. At that time the Crown was in possession of the material seized by the execution of a warrant at the offices of the NSBS. Some of those documents were in sealed boxes but the Crown or police had them and there was need for a warrant to “re-get” them. [ 110 ] Materials were in the possession of the Receiver, particularly those relating to client files. A warrant would be required to get that material. On 10 December 2008 the parties appeared in court and Mr. Smith for Mr.

Murtha noted that there was a disclosure issue. He went on to say that he understood that there was “a reasonably significant issue with disclosure necessitating, I believe another warrant to be issued”. [ 111 ] The Crown was aware that to move this matter forward a warrant was going to have to be obtained to get client information that was in the possession of the receiver. If the Crown was not aware of this as soon as the charges were laid, it should have been well aware of it by October 2008. [ 112 ] No further warrant was issued until April 2010 about a year and a half later.

That was the warrant issued and executed on the offices of the Receiver. On 29 April 2010 Mr. Wright wrote to Mr. Smith enclosing information received by D/Cst Hewitt from the receiver’s office. “Please be advised that the Crown will be taking immediate steps to unseal these documents via a Supreme Court Application.”

[ 113 ] There is nothing to indicate that the application has ever been made. [ 114 ] Ms. Buckle argued that had the information seized in April 2010 been served and made available earlier and made available more promptly the disclosure issues could have been resolved and trial dates set then, rather than waiting until December 2010 to do that. As matters transpired it would appear highly likely that she was right in that assessment. Conclusion: [ 115 ] There are real concerns that arise from October 2012 until the dates set now for the conclusion of the trial in August 2013.

Disclosure remained an issue and the Crown had obligations to continue to pursue the issue even after the original trial had been adjourned. Ms. Buckle has recently received documents that are potentially relevant, now almost 5 years after the charges were laid. The manner in which adjournment of this application in October was essentially thrust upon the Crown and defence was frustrating. That is the case especially in light of the fact that the application relates specifically to delay. [ 116 ] None of the delays in proceeding with the application were the result of the actions of Mr. Murtha or his counsel.

To some extent they are inherent time requirements and to some extent they are delays for which the Crown had much less direct responsibility than for the delays that arose earlier in the process. [ 117 ] The much more significant aspect of the application relates to time expired from the charge until the trial dates that were set for December 2011. [ 118 ] The inherent time requirements of the case would include time required to deal with initial intake and dealing with issues of disclosure. Eight months could reasonably be attributable to getting the case ready for trial.

Five more months should be added to allow for the complications pertaining to Supreme Court application. That is 13 months in which to deal with disclosure and issues of privilege. Ten months would normally be attributable to the time needed to

schedule trial dates. In this case it took 12 months because of the longer time required for the trial. That amounts to 25 months or more than two years, from charge to trial. [ 119 ] The total time from charge to trial is 42 months. Of that, in total 25 months is attributable to the reasonable time requirements of the case. The rest of the delay, or 17 months of delay, is attributable to the Crown. It is attributable entirely to the Crown. There has been nothing to indicate that Mr.

Murtha or his counsel contributed to the delay beyond the inherent time requirements of the case. [ 120 ] The delay does not relate to any time prior to the charges being laid. The time runs from the date the charges were laid. The Crown should not have been caught by surprise when defense counsel requested disclosure that included some of the materials contained in the sealed box obtained from the search warrant executed at the NSBS in April 2007. It would be unreasonable in fact to assume that it would just remain some kind of inscrutable mystery box sitting in an office.

Waiting until May or June of 2009 to file the Supreme Court application to have the box unsealed is not reasonable at all. [ 121 ] It should equally have come as no shock that client information in the possession of the receiver and over which the NSBS might claim privilege would be sought.

Waiting until April 2010 to execute a warrant with respect to the information held by the receiver is not reasonable. [ 122 ] The Crown either does not seem to have been adequately prepared and properly equipped or simply lacked a sense of incentive to respond in a reasonably timely way to the position taken by the NSBS and the receiver. [ 123 ] Mr. Murtha through his counsel was diligently looking for disclosure and not simply letting time fly by. Mr. Wright made a number of references in argument to Mr. Smith “lying in the weeds”. That was to suggest that Mr.

Smith had made the requests for disclosure then was not diligently pursing those requests. It insinuates that Mr. Smith’s agenda was to let time pass in furtherance of an eventual application such as the one made here. [ 124 ] The record in this matter simply does not support that inference in the slightest. It is very difficult to find anything in the record thatcould in any reasonable way be interpreted as supporting that assertion. Mr. Smith was diligent and doggedly determined.

He wrote letters repeatedly asking for disclosure and referencing his comprehensive letter of 22 October 2008, which as it turns out the Crown had lost. At every turn in court Mr. Smith reminded the Crown of the requirement for disclosure. Even the court made reference to the passing of time and raised the concern about Mr. Murtha’s right to be tried within a reasonable time.

This is the very opposite in fact of a party “lying in the weeds” while watching the months drop from the calendar. [ 125 ] Months went by when disclosure issues were supposedly being dealt with when Crown counsel didn’t even have a copy of the letter setting out the details of the disclosure request. [ 126 ] The Crown has an obligation not only to provide disclosure but to “have its act together”. Here, it evidently did not. Having taken on the responsibility of dealing with the NSBS on issues of privilege the Crown cannot later give up in frustration and hand the problem over to the defence.

It has been argued here that the NSBS, as a body with statutory obligations relating to the regulation of the practice of law in Nova Scotia and the complainant in this matter, is not in the same position as an individual third party. That may well be the case.

The Crown’s obligations with respect to getting information from the Society may well be more expansive than they would be for individual third parties with no statutory mandate, no powers to investigate, seize materials and information, no authority to impose professional disciple and no professional responsibility to assist in preserving the integrity of the legal system. That is not an issue that needs to be decided here. [ 127 ] Having taken on the role of dealing with the Society and the receiver, the Crown is stuck with it.

[ 128 ] That delay has to be considered in light of the societal interest in taking the matter trial. These are very serious charges. They have been brought with respect to allegations of fraud alleged to have been perpetrated while the accused was a practicing lawyer. There is a very substantial public interest in having matters such as this go to trial. The prospect of a former lawyer potentially avoiding trial on criminal matters that pertain to public trust in the profession gives cause for reflection. [ 129 ] As Ms.

Buckle has noted, the consideration of societal interest should include not only the nature of the charge but the circumstances of the accused person. Mr. Murtha has been the subject of serious disciplinary sanctions through the NSBS. He has been disbarred. Orders for compensation have been made against him. Mr. Murtha will never practice law again. He has been professionally ruined. He suffers from Post-Traumatic Stress Disorder relating to his military service in Vietnam.

Those issues have to be considered when evaluating the societal interest in proceeding to a criminal trial against this particular defendant. [ 130 ] While lawyers have high obligations of integrity to the court and the public, lawyers do not lose the fundamental right to fairness in dealing with allegations brought against them. While zealous prosecution and enforcement is appropriate, the reputation of the system of justice is not enhanced when the rights of a person are trammeled. Lawyers must be held to high standards of professional conduct.

At the same time the system that insists on that high standard must itself reflect a respect for the legal values that are founded on fundamental fairness and confirmed in the Charter . [ 131 ] The prejudice to the accused person must also be considered. Some degree of prejudice can be assumed to arise from a delay. The memories of witnesses and the accused person fade over time. That can affect the ability to mount a defence. Any person who is facing criminal sanctions over an extended period of time will experience some stress. In Mr. Murtha’s case the prejudice goes beyond those things.

His health has been adversely affected. In February 2011, before this matter was first scheduled to come to trial in December 2011 he suffered a stroke. He now has challenges with respect to short term and long term memory. [ 132 ] The delay here is unreasonable, having regard both to the time of the delay and the circumstances that have given rise to it. Mr. Murtha’s rights under the charter must be considered in the context of society’s interest in having the matter proceed to trial.

The delay in this case is such that allowing the trial to proceed would be a very poor reflection of the value placed on individual rights, one might say, even the individual rights of those held to a higher standard of behaviour due to their professional status. [ 133 ] The test is not whether the matter has amounted to an institutional fiasco or a procedural mockery. This case however is one which might well provoke the observation that this is simply not fair and not right. No one accused of a crime should be dragged through this kind of confusing muddle, for this long.

Society has an interest in seeing this matter and those of this kind resolved on their merits. Society has an even greater interest in this case of upholding the right of an individual to a fair trial within a reasonable time. [ 134 ] That decision is based on time that elapsed from Mr. Murtha being charged until the dates set for trial in December 2011. That time itself is sufficient to justify the granting of the application. [ 135 ] A stay of proceedings is the only appropriate remedy. A stay will be issued.