Judge denies charter challenge appeal in Herbert Hildebrandt assault trial

Justice Mark Poland has denied an application by Herbert Hildebrandt that his assault trial took too long.

“Mr. Hildebrandt’s rights were clearly and obviously not violated on the facts of this case, the defence application is denied,” said Justice Mark Poland from a St. Thomas, Ont. courtroom.

Hildebrandt had filed a section 11b application contesting that his case was not completed in 18 months as stipulated in the Supreme Court of Canada.

Under 11b, the Canadian Charter of Rights, “entitles anyone charged with a crime to the right to be heard within a reasonable time.”

There were a few reasons why the trial exceeded the expected time frame.

More defence witnesses were called than originally expected in the judicial pre-trial. There was a defence delay and then the crown got COVID-19 and was ill which caused the case to be pushed back.

Hildebrandt was found guilty of assault against octogenarian Jack Dyxhoorn on Aug. 22, 2022 after an altercation at a farm in December 2020.

“There is no doubt on the evidence before me that as of May 24, 2022, Mr. Hildebrand knew that the trial would not be completed until after the August dates,” said Poland.

“Although nothing changed in the time period between May and August 2022, Mr. Hildebrandt declined to bring his section 11b application until three days after the verdict was rendered on Aug. 22 2022. This approach is in my view, inconsistent the general direction of the Supreme Court of Canada.”

Justice Poland referenced defence lawyer Lakin Afolabi’s modification of the approach he forecast during the pre-trial. He didn’t fault him for adding more witnesses, but then had difficulty with the claim of “unreasonable delay” after the chance of approach.

“It constitutes the procedural equivalent of having one's cake and eating it too,” said Poland.

Poland finished by hammering home the main reason for the delay in the trial was due to crown prosecutor Stephanie Venne becoming ill and was unable to conduct the trial on April 25, 2022.

The defence claimed due to illness, the case could have been passed to another Crown lawyer.

“That proposition simply cannot be accepted,” said Poland. “To accept the defense proposition here, would be to treat the crown attorneys the present cases in Ontario courts, not as officers of the court, but as some kind of clone-like automatons where one warm body is just as good as the next.”

Poland then pointed to the constitutional right of counsel of choice.

“The obvious reality here is that cases in the justice system are not widgets mindlessly pumping out the finishing of a production line. The court has laid down clear expectations the grounds should be wherever possible, assigned to and personally engaged in the cases that they present to the court.”

While Poland was ready to give a sentence in this case, the defence was caught off guard not expecting that to happen Tuesday.

Hildebrandt will learn his fate on Feb. 23, 2023.