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Medical Evidence Served on Crown Counsel

Legal Brief: Abscond

To: Judge Barry Singer, Provincial Court
Re: Medical Evidence in Support of Adjournments
From: Georgena Sil

On instruction from my attorney Robert Borden, I write this brief in support of scheduling our Court dates to accommodate my physical disability.

In complex litigation, a courtroom lawyer by necessity teams up with a technician. Legal-Aid tariffs, however, do not cover two lawyers. And even the one assigned lawyer faces a low ceiling on billed hours. Since I am physics-educated, I thus fulfill the job of technical assistant to my attorney: both in the writing of this brief, and throughout the case.

Robert Borden and I reviewed our cumulative experience with the case. We tender this report to the Court: The one-week recuperation between Court events, which was the original advice of my doctor, would suffice if there was no work to do. But when there are witnesses who testify that I develop cross-examination for; when I read and analyze our Muirhead Disclosure of 1000-plus pages; when I study forensic texts and precedents in the U of S Law Library; when I visit my attorney's office for cogent work sessions – then the one-week recuperation between Preliminary Inquiry sessions is not nearly sufficient. A much more significant period of time is required.

My intent and my goal is to be present in Court. Mr. Borden assigns my role as active participant, rather than passive listener. It is I who knows where the documents are; it is I who keeps track of the myriad technical points. Yet my Court attendance is limited by intolerance to activity and a lengthy recuperation time. My diseases combine to cause severe chronic pain, muscle weakness, and cognitive exhaustion. My diagnoses were well-established before the legal case began; in fact they pre-date the case by several years.

Sil Diagnoses: Onset Dates
1984 Interstitial Cystitis
1985 Osteitis (bone inflammation)
1989 Guillain-Barre Syndrome
1994 Dizziness (presyncope) and atypical seizures
1998 Systemic Lupus Erythematosus (now deemed the umbrella over all my auto-immune conditions)
1999 Reflex Sympathetic Dystrophy (complication of a surgical biopsy to my right foot)
2002 Legal case began

We tender to the Court our full set of medical exhibits. The chronology is:

  • In March/04 I obtained a note from Dr. Balakrishna. The brevity of his note and testimony was largely due to the fact that English is not his first language. The Canadian Medical Directory indicates Dr. Balakrishna was trained in Bangalore, India. This I did not know at the time.
  • In due course, I obtained a detailed report from Dr. Straza of the Idylwyld Mediclinic. He is now my regular GP. Dr. Straza prepared his report on Aug 3/04, but it did not reach me by mail until after the Aug 5/04 Preliminary Inquiry session.
  • Concerned about how that delay would affect my obligation to the Court, I sought another report that month from a walk-in clinic. I saw Dr. Mettle at the Minor Emergency Clinic on Laurier Drive. His report is dated Aug 3/04 also. I picked it up in person, thus received it in time. My attorney had Dr. Mettle's report in hand before the Preliminary Inquiry session held on Aug 5/04.
  • On Aug 10/04, my attorney forwarded both of the new detailed reports (from Dr. Straza and Dr. Mettle) to the Crown Prosecutor Robin Ritter.
  • The medical advice was snubbed. Robin Ritter had possession of the new medical reports since mid-August, yet he allowed the next Preliminary Inquiry dates to stand as a solid block of four full days running from Nov 1 to Nov 4, 2004.
  • On Friday Oct 29/04, my attorney called me in to his office where we spent an hour in conference discussing a negotiation advanced by Robin Ritter. Later that day, Mr. Borden sent a 14-page topical precedent to my home via courier. I studied this precedent and then telephoned my answer to Mr. Borden. The work was intensive that day, but the topic was standard and could have been proposed much earlier by this experienced Prosecutor.
  • The Preliminary Inquiry began on Monday Nov 1. My presence was expected there also. I have a strong work ethic, and take my legal duty seriously. I tried to do both: to visit the Borden Law Office on Oct 29, and then attend Court on Nov 1. I found I could not do both. For that reason, I missed Court on Nov 1. I had cognitive exhaustion; my muscle strength was depleted and I could not sit up; I could not participate, not even by means of a telephone link.
  • At the Court's request, on Nov 2 I saw my family physician. Dr. Straza re-assessed my conditions and confirmed there was no change. His resultant report, dated Nov 3/04, was sworn as an Affidavit and filed in Provincial Court. Note that the two reports from Dr. Straza are nearly identical (both are attached, for comparison).
  • I attended the Preliminary Inquiry on Nov 3. The examination in chief of Dr. Joel Yelland, under oath, corroborated in depth my auto-immune health conditions.
  • I was absent from Court on Nov 4, due to the same health issues. On my instruction, my attorney requested an adjournment. The Prosecutor pressed to declare me as absconding. The Court, citing CCC Section 544, ordered this full-day session to proceed in my absence – with testimony (both direct and cross) of two major witnesses being heard.
  • At the end of that Nov 4 session, the Court chose further hearing dates. The Prosecutor again demanded a solid block of days. This was granted. The Preliminary Inquiry continuance was set for the two full-length days of Feb 23-24/05.
  • Well in advance, my attorney tried to adjust those dates via a letter and follow-up phone calls to the Prosecutor. Robin Ritter did not reply until Monday Feb 21/05, when he finally agreed to accommodate my disability. On Feb 21, Mr. Borden so notified me by phone.
  • When we arrived in Court on Feb 23/05, the scheduling barriers were old news. This was not so two days earlier. Up until Feb 21, I was still fighting for my right to be present at my own preliminary inquiry. The research and writing of this brief was necessary to establish that I did not abscond, and that Statute 544 could not be used to exclude me.

Attached to this brief are a number of documents:

  • Reports from Dr. Balakrishna, Dr. Straza (x2), and Dr. Mettle
  • Specialist reports from my medical history chart
  • Excerpts from medical textbooks which explain my conditions
  • Legal precedents (quotes are referred to by page number)
  • Excerpts from our Preliminary Inquiry court transcripts

Canadian Criminal Code
Procedure on Preliminary Inquiry

Absconding Accused

Accused Absconding During Inquiry

CCC s 544. (1)  –  Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of a preliminary inquiry into an offence with which he is charged, (a) he shall be deemed to have waived his right to be present at the inquiry, and (b) the justice:

  1. may continue the inquiry and, when all the evidence has been taken, shall dispose of the inquiry in accordance with section 548, or
  2. if a warrant is issued for the arrest of the accused, may adjourn the inquiry to await his appearance,

but where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue it at any time pursuant to subparagraph (b)(i) if he is satisfied that it would no longer be in the interests of justice to await the appearance of the accused.

Adverse Inference

CCC s 544. (2)  –  Where the justice continues a preliminary inquiry pursuant to subsection (1), he may draw an inference adverse to the accused from the fact that he has absconded.

Accused Not Entitled to Re-Opening

CCC s 544. (3)  –  Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.

Counsel for Accused May Continue to Act

CCC s 544. (4)  –  Where an accused has absconded during the course of a preliminary inquiry and the justice continues the inquiry, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

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