Another day another Poriskyite court hearing. Actually the top dog himself, Russell Porisky. I'd had him slated on my kitchen calendar for a hearing a week from today and found out about this hearing just by chance. I thought I'd just screwed up and put the wrong day on the calendar. Not, in my life, an unlikely event. I once missed a flight to Florida even though I was at the airport at the right time. Problem was that I was there on the wrong day. My flight had left the day before. Anyhow I hadn't screwed up this time. A rush hearing to settle some matters before the hearing next week.
I said in a prior posting;
One interesting point is that while Russ is now self-represented his wife, Elaine Gould, is hanging on to her lawyer. So her defence must be based on arguments a non-OPCA type lawyer feels comfortable with. Not a true believer after all?
Well she's not hanging on any more. One reason for the hearing was that her lawyer either quit or was fired and today was when he requested the court's permission to withdraw as Gould's counsel. The other reason was Russ's request to get his, and by default, Gould's scheduled trial adjourned and extended.
The lawyer first with commendable efficiency. He was at the hearing when it started but gone and out the court within the first minute. "Ms. Gould has ended my retainer so I'm removed as counsel of record and excuse myself from the remainder of this trial". Judge approved and he scooted.
Gould, who had been sitting in the cheap seats with me then went up and joined Russ at the counsel table. Russ wanted to make an application to adjourn his trial, scheduled for January, to an unspecified later date to give him time to prepare. Since Porisky and Gould have a joint trial the judge advised Gould that if Russ got his request her trial would obviously be also rescheduled so she could challenge reschedule request if she wished. Gould said she would not oppose the application.
First a purely subjective comment from me on Russ's presentation style. Check him out on this You Tube video pulled at random. You can find dozens more just by typing "Porisky" in the You Tube search bar;
https://www.youtube.com/watch?v=_pBbWA- ... 051E8F5FE1
Articulate, engaging, focused, decisive. A seasoned public speaker with hundreds of seminars in his resume. But he wasn't that way today. He seemed halting, uncertain, disorganized. Not the Russ of the videos. I think to some extent a bit of an act. He wanted an adjournment of his trial and he may have been, at least to some extent, trying to convince the court through his oral statement that he actually was being put at a disadvantage by the confusion and lack of preparation that he claimed justified his request.
So on to his request. An adjournment of the trial and a doubling of the trial time from for weeks to eight. He had a rambling claim of a Charter challenge about his right to a full defense. He's now a self-represented individual unfamiliar with court practices and procedures so it isn't fair to expect him to be efficient at trial. He complained about the 5,000 documents and over 100 hours of video in the 37 video sets filed as evidence by the Crown. He claimed only a "cursory" understanding of it all and he would need time, a lot of time, to review it all to find out what was in it. Also the Crown had filed, and given him, yet another pile of documents just his morning. He said that it wasn't his fault that his lawyer withdrew, it was unexpected and shocking. None of this was his fault. He needed the eight weeks because he didn't know how long it would take him to make a full defense. He might call witnesses at trial but at the moment he doesn't know who or how many.
He cited this case as support for his adjournment request;
R. v. Tortora, 2010 BCCA 547
http://canlii.ca/t/2dpv9
However this was very much a double-edged sword since he got a copy of the case from Crown counsel who planned to enter it as support their opposition to his motion. An ominous sign! Perhaps, since it was being entered in any case he was being proactive. What the case had that was relevant to today's hearing is a laundry list, prepared by the British Columbia Court of Appeals, of the factors a trial judge should consider when asked to grant an adjournment;
Refusal to grant an adjournment
[21] The main question on this appeal is whether the trial judge should have granted an adjournment of the trial to give Mr. Tortora time to retain counsel or apply for legal aid. An appellate court may review the trial judge’s exercise of discretion whether to adjourn a case if it is based on reasons not well-founded in law: R. v. Barrette, 1976 CanLII 180 (SCC), [1977] 2 S.C.R. 121 at 125.
[22] When determining whether to deny an adjournment to an unrepresented accused, I adopt as the appropriate test the following factors from R. v. Beals (1993), 1993 CanLII 5636 (NS CA), 126 N.S.R. (2d) 130 (C.A.) at para. 29:
1. The decision whether to grant or refuse a request for an adjournment because an accused is not represented by counsel in a criminal trial is a discretionary one but one that must be based on reasons well-founded in the law. ...
2. An accused has a constitutional right to a fair trial. Representation by counsel at trial is generally essential to a fair trial if an accused is charged with a serious offence and a complex trial can be anticipated. ...
3. The right to counsel at trial is not absolute ... there is no constitutional right to be represented by a state funded counsel at trial. ...
4. The right of an accused to retain counsel to represent the accused at trial must be exercised honestly and diligently so as not to delay a scheduled trial. ...
5. Each application for an adjournment on the ground that the accused will not have counsel at trial must be decided on its facts. Relevant facts to be taken into account by the trial judge are: (a) whether or not there have been prior adjournments due to the unavailability of counsel and the accused was warned well in advance of trial that the trial would be proceeding on the scheduled date with or without counsel. ... (b) the accused’s criminal record which reflects on the accused’s degree of familiarity with the criminal justice system and legal aid programmes ..., (c) whether the charge against the accused is simple or complex which fact impacts on the critical question whether or not the accused can get a fair trial without counsel ... (d) the public interest in the orderly and expeditious administration of justice....; (e) if the accused has been refused legal aid and when the refusal was communicated to the accused.
6. As a general rule an accused should not be refused an adjournment if the fact that he is without counsel on the scheduled trial dates is not his fault but that of his counsel and he had no complicity in the matter. ....
7. As a general rule an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtain counsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose of delaying the proceedings. ...
8. On an appeal from a refusal it would appear that a court of appeal will not find the learned trial judge erred notwithstanding his reasons may not be fully articulated if the record discloses evidence from which it can be inferred that the absence of counsel was brought about by the accused for the purpose of delaying the proceedings. ...
9. The scope of review by an appeal court of a refusal, notwithstanding it involves the review of the exercise of a discretionary power, is wide as the consequences of a refusal are to deprive an accused of his right to be represented by counsel. On appeal the appellant must show that in refusing the adjournment the trial judge deprived the appellant of his right to make full answer and defence and thus made an error in principle which constituted a miscarriage of justice. ...
This section of the decision played a prominant part later in the hearing. What Porisky failed to do was relate these factors to his specific situation to show why they were relevant to his application request. The Crown did not make the same mistake.
Russ's arguments ended with Gould, as the other affected party, saying she supported the application.
Then on to Crown counsel who did a very efficient job of eviscerating Porisky's arguments. Crown STRONGLY opposed to the application and adjournment request. First counsel went through a history of the case going back to Porisky's original conviction in 2009. Russ represented himself and Gould at that hearing. When Russ appealed his conviction he originally represented himself as this July 2012 decision shows.
R. v. Porisky, 2012 BCCA 309
http://canlii.ca/t/fs16j
However he soon retained counsel who is noted in the August 2012 decision allowing his appeal of his conviction;
R. v. Porisky, 2012 BCCA 371
http://canlii.ca/t/fsrtk
Note that his counsel of record was Martin Peters. Mr. Peters is the same lawyer who removed himself from representing Elaine Gould today. From what I can get from my notes (I was scribbling away trying to keep up and I can't guarantee this is entirely correct) Porisky and Peters had a "breakdown in their relationship" after the successful appeal. Porisky got another lawyer who also withdrew. He got yet another who withdrew just before the scheduled retrial causing that to be adjourned. Then we have the lawyer who withdrew for "ethical reasons" on November 27th. Crown counsel said that history was just repeating itself with this adjournment request. While it may not be Porisky's fault that his lawyer resigned "so late in the day" it is not reasonable to wait until Porisky finds another lawyer. He's been through four lawyers already. She noted that, contrary to Porisky's comments, he is not unfamiliar with the criminal justice system since he represented himself before and during his original tax evasion trial.
While Porisky said he needs time to prepare he was prepared before the original trial and this one is going forward on the same evidence. All of the evidence he referred to (5,000 pages and videos) were seized from his house during the search or were otherwise in his possession and it is reasonable to assume that he is familiar with them. He wrote most of the documents and he is the presenter in almost all of the videos.
Regarding the additional Crown disclosure today these were just documents that the CRA wasn't aware they had but which have somehow surfaced. So the Crown has disclosed these to the court but will not be entering them as evidence.
Counsel said, in respect to the requested additional four weeks of court time that while they had thirty-seven sets of videos they only planned to show the jury about nine and a half hours from four of them. Rest not necessary because they are very repetitive. Regarding Porisky's submissions on his defense it should be no different than his first trial since exactly same issue at that trial Porisky only used three days of court time. That ended Crown's submission.
Judge said that she would check if four weeks of court time was available to add on to the end of Porisky's current trial schedule so we waited while clerk checked into that. Yes.
Judge then gave her decision on the application. She noted that both defendants were represented until recently. Porisky said that he was shocked by his lawyer's withdrawal and that he required eight weeks of trial time for a full answer and defense. He needed this because of the volume of documents and videos.
Crown strongly objects. Gave chronology from 2009 through various trial schedules and adjournments to accommodate counsel who came on board then withdrew. A unique aspect of this case was that it has already has a full trial and a successful appeal. She read out verbatim the laundry list given above and then said she would apply it to this case.
Items 1 to 4 were in respect to the right to counsel. The accused have represented themselves and had counsel in this matter. However all counsel have left. The lack of counsel is no reason to delay this case since it is unlikely that they will find new counsel. There have been many prior adjournments and they had been warned in prior case (note - missed what they were warned about. I assume unnecessary delay).
They have shown familiarity with the criminal justice system and they are in the unique position that they have already represented themselves in the same issues and have an intimate knowledge of the facts.
She then brought up the administration of justice. The case had been outstanding six years. It is in the public interest that it proceed with dispatch.
A request for adjournment should not be denied if parties act diligently however neither Porisky or Gould have advised the court on any steps to get counsel.
There is no principled reason to allow an adjournment and trial will proceed. Judge allowed the possibility of adding an additional four weeks of trial time but was not convinced that eight weeks was necessary. This would be discussed at the case management meeting next week.
Something was up when we left. We had the last courtroom in the corridor and we were first on the morning court list. When we left the corridor access to the courtroom had been roped off and everyone coming past had to go through a metal detector. There were three or four sheriffs on duty by the detector and a sizeable bunch of young people, I'd guess in their 20's waiting to get in. The court schedule showed that the hearing after us was called R. V. Giles, Van Kalkeren, Read, Howard, Oldham & Womacks
Turned out to be a high profile Hell's Angels case about drug trafficking;
http://www.vancouversun.com/news/appear ... story.html
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