DATE: 20060508
DOCKET: C43240
COURT OF APPEAL FOR ONTARIO
FELDMAN, JURIANSZ and MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Michal Fairburn, for the appellant
Appellant
- and -
N.N.M.
Frank Addario and Vanora Simpson, for the respondent
Respondent
Heard: March 22, 2006
On appeal from the decision of Justice Terrance P. O’Connor of the Superior Court of Justice dated February 18, 2005.
JURIANSZ J.A.:
Introduction
[1] This is a Crown appeal from the decision of O’Connor J., staying criminal charges against the respondent on the basis that his right to a trial within a reasonable time under s. 11(b) of the Charter had been infringed. The respondent was arrested and charged on March 20, 2002. On November 20, 2003, he was committed for trial on a thirteen-count indictment including counts of sexual assault, assault, assault causing bodily harm against his wife, uttering death threats against his wife and child, possessing and carelessly storing restricted firearms, pointing a firearm, and possessing a restricted weapon. The charges were stayed on February 18, 2005, on the basis that there had been an unreasonable delay in bringing the matter to trial. I would allow the appeal.
[2] After dealing with certain preliminary matters, I assess the entire period of delay in this case, and attach pivotal significance to the respondent’s decision on May 31, 2004, to decline an early trial date. I conclude that the respondent is unable to claim that any of the delay after he refused a trial date should be allocated to the Crown or to institutional delay. Following that, I find that the prejudice suffered by the respondent is largely negated by evidence that he did not want an early trial date. Finally, after considering all of the foregoing, I conclude that there was no unreasonable delay and this appeal must be allowed and the matter remitted for trial.
Preliminary Issues
[3] The respondent raised three preliminary issues.
[4] First, the respondent objected to the Crown relying on the preliminary hearing transcript in this court, when only a part of that transcript had been filed before the trial judge. The Crown submitted that the preliminary hearing transcripts are a necessary part of the record relying on R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 at 344 (Ont. C.A.), where this court indicated that it expects all transcripts of all relevant proceedings to be filed in a s. 11(b) case. Further, in R. v. R. (T.) (2005), 2005 18709 (ON CA), 75 O.R. (3d) 645 (C.A.), the court considered the transcripts of preliminary hearings that were not before the trial judge (see paras. 43-44). The Crown said that the transcripts are relevant to an assessment of the seriousness of the charges against the respondent. In this case the serious nature of the allegations against the respondent is abundantly apparent from the bail review proceedings that were before the trial judge. Consequently, it is unnecessary to refer to the preliminary hearing transcripts.
[5] Second, the respondent’s counsel submitted that the trial judge’s findings are findings of fact deserving of deference, absent palpable or overriding error. I do not agree. In R. v. Chatwell (1998), 1998 3560 (ON CA), 122 C.C.C. (3d) 162 (Ont. C.A.), appeal to S.C.C. quashed (1998), 1998 784 (SCC), 125 C.C.C. (3d) 433 (S.C.C.), this court applied the normal standard of review to the assessment of institutional delay. The court said (at para. 10):
The determination of whether certain factors constitute institutional delay for the purpose of an analysis pursuant to s. 11(b) of the Charter is one which, in our opinion, attracts the normal standard of appellate scrutiny. The adjudication of the s. 11(b) rights of an accused is not akin to the exercise of judicial discretion.
[6] In R. v. Qureshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453 at para. 27 (Ont. C.A.), Laskin J.A. stated that a trial judge’s accounting of the inherent time requirements is to be reviewed on a standard of correctness. In my view, this applies to the process of assessing the various periods of delay, ascribing legal character to them and allocating them to the various categories set out in R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.). For example, whether the Crown had produced documents by a certain date is a question of fact. However, the questions of whether the failure to produce those documents constitutes a failure of the Crown’s duty of disclosure and whether such failure makes the Crown responsible for ensuing delay, involve the application of legal principles. The questions raised by this appeal primarily involve alleged errors in the way the trial judge accounted for various time periods, which is reviewable on a standard of correctness.
[7] Third, the respondent objected to the Crown taking a different position on some of the issues on appeal than it had taken before the trial judge. However, in the course of argument, the respondent conceded that this court should not give effect to concessions made by the Crown that were not supported by the evidence. For example, the Crown conceded before the trial judge that the respondent had not waived any of the delay, but it is plain on the face of the transcript that he did waive a portion of the delay. In light of this concession, this objection is of no consequence to the determination of the appeal.
The Merits
[8] The respondent concedes that the trial judge made several errors in his analysis by:
confusing inherent delay with institutional delay;
regarding the administrative guidelines stated in Morin as applying to the period of total delay rather than to institutional delay; and,
calculating inherent delay by a process of subtraction rather than by assessing the time required by the proceeding itself.
[9] In addition, I would find the trial judge erred in the way he allocated delay due to alleged disclosure problems.
Reasons For Delay
[10] The total delay from the respondent’s arrest on March 20, 2002 to April 9, 2005, when it was anticipated the trial date scheduled for March 21, 2005, would be completed, is some 36½ months.
[11] I have divided the total elapsed time into two periods: the period from the laying of the charges against the respondent to May 31, 2004, and the time that elapsed after May 31, 2004. This division is appropriate because the respondent, on May 31, 2004, declined an early trial date offered to him. That refusal is critical to the analysis of the delay, and significantly changes the assessment of the respondent’s unreasonable delay claim. As stated, I would find that none of the delay, after his refusal of an earlier trial date, should be attributed to the Crown or to institutional delay.
Delay Prior to May 31, 2004
March 20, 2002 to July 23, 2002
[12] The trial judge made no separate determination of the intake period and calculated the inherent time requirements by deducting institutional delay and delay caused by the defence and Crown from the total delay. The parties agree this is not the correct approach, but dispute how long the intake period was for this case.
[13] The Crown submits that the entire period from March 20, 2002 to July 23, 2002, should be allowed as the intake period. The defence submits only two and one-half months should be allowed for intake, relying on the trial judge’s observation that “[t]his case is not complex, nor will it involve a large number of witnesses, nor will it involve a lengthy trial.” The complexity of the case and the anticipated length of the trial are not necessarily the primary determinants of the length of the intake period. The same holds true for the total inherent time of which the intake period is the first part. In Morin, Sopinka J. used a case’s complexity to illustrate how the inherent time requirements vary. However, after observing that “[e]ach case will bring its own set of facts which must be evaluated”, he went on to discuss matters that contribute to the time inherently required quite apart from the complexity of the trial, “such as retention of counsel, bail hearings, police and administrative paperwork, disclosure and similar activities.” Justice Sopinka said (at p. 17) that,
as the number and complexity of these activities increases, so does the amount of delay that is reasonable. Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay.
[14] An obvious example, unrelated to a case’s complexity, is whether the person charged has made an application for legal aid. In such a case, especially where an appeal to the area committee is involved, more time must be allowed for the accused to retain counsel.
[15] Judges must rely on their knowledge and experience in considering the particular facts of the case in deciding how much time to allow for the intake period.
[16] It is noteworthy that in this case the charges against the respondent did not arise out of an ongoing police investigation. Rather, they arose out of the urgent complaint of the respondent’s spouse that required the deployment of the Emergency Task Force. The major part of the police investigation relating to the domestic assault charges as well as the gun charges had to be conducted after the respondent was arrested. In some cases the investigation, taking of statements, paperwork and preparation of disclosure may well be underway or completed before the charges are laid. In this case, these tasks all had to be performed after the charges were laid. For example, the firearms seized had to be tested and certificates obtained.
[17] Significantly, when the parties appeared in court on June 4, 2002, to set a date for the pre-trial, it was defence counsel who suggested July 23, 2002 as the return date. When the judge commented that the July 23 date was “a long way off”, defence counsel explained that bail variations were still being considered and that the respondent was scheduled to have surgery in the interim. Thus, at the time, defence counsel seemed satisfied that an intake matter, finalizing the respondent’s bail conditions, was still proceeding. As well, the defence had not yet responded to the Crown’s initial disclosure by indicating what additional materials it wished. Defence counsel indicated a request would be sent shortly. That defence response was part of the usual intake process required to facilitate a fruitful pre-trial. The defence request was not sent until July 22, 2002.
[18] If the intake period were found to have ended before then, a portion of the delay would have to be assigned to the defence because of its lax approach to disclosure and because the respondent was unavailable for an earlier pre-trial due to his surgery.
[19] I would reject the defence’s submission that there was institutional delay before July 23, 2002, and accept the Crown’s position that the intake period extended until then.
July 23, 2002 to August 27, 2002
[20] The defence acknowledges that it caused the adjournment of the pre-trial scheduled for July 23, 2002, by failing to send its disclosure request until July 22, 2002. The judicial pre-trial was then re-scheduled for August 27, 2002. The defence waived the delay of thirty-five days.
August 27, 2002 to October 8, 2002
[21] Defence counsel did not appear on August 27, 2002, as he had to appear in Brampton in regard to another proceeding involving the respondent, as did the Crown counsel with carriage of this case. The Crown who did appear indicated that defence counsel wished the matter adjourned to October 8, 2002. I infer that defence counsel was faced with a conflict and chose to adjourn this matter rather than the other one. I would attribute the resulting forty-two days delay to the defence.
October 8, 2002 to November 12, 2002
[22] On October 8, 2002, the defence requested that a further judicial pre-trial be held. The defence suggested the date of November 5 or 12, and the matter was put over to November 12 because the Crown was not available on November 5. The defence acknowledges it is responsible for delay up to November 5, but submits the Crown is responsible for seven days between November 5 and November 12.
[23] While only seven days are involved and though the Crown did not resist responsibility for them, I do not accept the defence’s position. Sopinka J. noted in Morin “[a]ccount must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case.” It follows that some reasonable allowance for the schedules of counsel must be made. In my view, the party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time. The Crown, in this case, was available promptly. The defence was not entitled to expect the Crown to be available on the first date it offered.
[24] I would attribute the thirty-five days between October 8 and November 12 to the defence.
November 12, 2002 to November 26, 2002
[25] An agent appeared for defence counsel on November 12, 2002, and requested an adjournment, without giving a reason for defence counsel’s absence. The defence is responsible for the fourteen-day delay that resulted.
November 26, 2002 to November 24, 2003
[26] On November 26, 2002, the preliminary inquiry was scheduled for November 24, 2003, because, as defence counsel noted, that was the earliest date that the trial coordinator could provide. The Crown acknowledged in the court below and in this court that the entire twelve-month period is institutional delay.
[27] The record discloses no explanation for this extraordinary delay, which by itself exceeds the administrative guideline for tolerable delay in the Ontario Court. The Crown identified no unexpected or unusual circumstances to account for it. The situation was one in which counsel and the presiding judge should have heeded the comments of MacPherson J.A. in R. v. R.M., 2003 50092 (ON CA), [2003] O.J. No. 4240:
If an adjournment of a preliminary inquiry is required, there should not be a pro forma "what is the next available date" conversation. Instead, the time period that has already elapsed should be explicitly acknowledged on the record and there should be a frank discussion about how to sole the problem. The focus of the discussion should be on ways to speed up the proceeding. The presiding judge, the trial co-ordinator if necessary, and both counsel should attempt quit consciously to schedule the continuation of the preliminary hearing- not several months down the road, but at the earliest possible date, taking into account the commitments of the presiding judge and counsel. Then, once a continuation date is set, counsel should explicitly state on the record their position with respect to the implications of the further delay in a Charter s. 11(b) context.
[28] In this case counsel did not even put their own availability on the record. Counsel merely stated that November 24, 2003, was the earliest date the court could provide. It is extremely doubtful counsel were available for the preliminary inquiry immediately. Counsel’s availability is useful context for assessing the reasonableness of the total delay in the concluding balancing analysis.
[29] It is also worth noting that neither party allotted any time for counsel to prepare for the preliminary hearing. Counsel’s preparation time would be part of the inherent time required in this case. Nevertheless, given the Crown’s concession, I would allocate the twelve months to institutional delay.
November 24, 2003 to December 8, 2003
[30] The time required to conduct the preliminary hearing and remand the matter to the Superior Court is inherently required. The parties agree this took thirteen days.
December 8, 2003 to January 29, 2004
[31] On December 8, 2003 a judicial pre-trial was scheduled in the Superior Court for January 29, 2004, some fifty-two days later. The transcript indicates that January 29, 2004 was the first date that a pre-trial in Orangeville was available.
[32] The Crown submits the time to schedule the pre-trial is inherent time, and the defence submits the period is institutional delay.
[33] As Rosenberg J.A. said in R. v. G. (C.R) (2005), 2005 32192 (ON CA), 77 O.R. (3d) 308, at para. 30, the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay. The time that the parties require to prepare for and conduct the pre-trial is inherent time.
[34] While I would allocate this period to institutional delay, it is worth noting that a longer remand period is understandable due to the holiday season and New Year.
January 29, 2004 to March 15, 2004
[35] Outstanding disclosure was a factor on January 29, 2004 and again on March 22, 2004, when defence counsel refused to set a date for trial because the defence had not received all the records it wanted. Outstanding disclosure was significant in the trial judge’s allocation of responsibility for delay. He initially identified a total of eight and one-half months of defence delay. He then reduced the period of defence delay to four months and reallocated the other four and one-half months to the Crown because there were outstanding disclosure requests on some of the occasions when the defence requested the matter be put over.
[36] The respondent submits that the trial judge’s finding that there were outstanding disclosure issues is a finding of fact with which this court should not interfere. He submits that the trial judge’s re-allocation of defence delay to the Crown was a judicious and reasonable approach to the issue, which recognized that the defence also could have been more prompt.
[37] I disagree. Where outstanding disclosure is alleged to explain a defence request for an adjournment, it is necessary to consider what documents were outstanding, when and in what circumstances they were requested, and if their disclosure is mandated by the Crown’s constitutional duty of disclosure. Where the defence has made a late request for material with no potential relevance, any delay that results should not be attributed to the Crown. A person charged with an offence should not be able to generate a basis for a s. 11(b) application by making a continuous stream of requests for materials that have no potential relevance, even if the Crown agrees to provide them. Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. As this court stated in R. v. Kovacs-Tator (2004), 2004 42923 (ON CA), 192 C.C.C. (3d) 91 at para. 47 (Ont. C.A.): “the Crown is not obliged to disclose every last bit of evidence before a trial date is set.”
[38] After examining the outstanding items in light of these considerations, the court must decide whether the defence was entitled to refuse to proceed to the next step in the process. If so, the court must still consider whether the particular period of delay caused should be allocated to the Crown, as the materials may be outstanding because of a late request by the defence. With this in mind, I discuss what occurred on January 29, 2004.
[39] On January 29, 2004, a lengthy and productive pre-trial was held, and the respondent was remanded to March 15, 2004, to set a date for trial. The judge who conducted the pre-trial indicated there were some “disclosure matters” to be canvassed. He specifically stated he would not describe them as “disclosure issues”. Crown counsel explained that the disclosure matters related to documents not in the jurisdiction and to third party records. She undertook to make inquiries about both. Defence counsel stated that “whether or not the matter is ready for trial in March or not will depend upon the outcome of the efforts that are made by myself and the Crown between now and March 15.” Counsel did not indicate when the defence had requested these materials.
[40] The comments of the pre-trial judge and the tone of the remarks of defence counsel reflect the view I take that this adjournment was not caused by outstanding disclosure obligations of the Crown.
[41] The third party records did not raise disclosure issues, and consequently, the time necessary for the Crown to obtain them should not be counted as Crown delay. Providing these third party records to the defence was not part of the Crown’s constitutionally mandated duty of disclosure. The Crown undertook to obtain the third party records in an effort to assist the defence. If it had not done so, the defence would have had to bring an O’Connor application. Without the Crown’s cooperation, it is likely that more time would have been taken to obtain the records.
[42] Allocating the time taken to obtain the third party documents to the Crown would not encourage such cooperation in the future. If the Crown, having undertaken to obtain the documents to assist the defence, then unreasonably delayed getting them, consideration might be given to allocating a portion of the delay to the Crown. That did not occur in this case. The defence at no time suggested on the record that the Crown took any longer to obtain the records than was reasonably required. The remarks of defence counsel, if anything, indicate that he anticipated the records might not be available by the return date of March 15, 2004.
[43] The defence also wanted documents from another jurisdiction. These documents related to “a return from the Dufferin detachment of the O.P.P.” The record does not indicate what these records were, what their potential relevance was to these charges, or when the defence requested them. The record is insufficient to conclude either that they were documents the Crown was obligated to disclose or that the Crown delayed in disclosing them. There is no indication that the records were requested before the pre-trial took place.
[44] I would allocate the forty-six day period from January 29, 2004 to March 15, 2004, to the inherent requirements of the case. Both parties seemed of the view that obtaining the records was required for the respondent’s defence. That being so, the time necessary to obtain them is inherent time in the same way that the time necessary to process an O’Connor application that had been reasonably brought would have been inherent time.
March 15, 2004 to March 22, 2004
[45] On March 15, 2004 an agent who was unable to deal with the matter appeared for defence counsel and thereby caused an adjournment. The seven days of delay that resulted are attributable to the defence.
March 22, 2004 to May 31, 2004
[46] On March 22, 2004, defence counsel refused to set a date for trial because he said he had just received documents from the Crown and there were still four areas of disclosure outstanding.
[47] The first two areas related to third-party records, which the defence wanted and the Crown had undertaken to obtain. The third item was the notes of all Toronto Police Service officers who spoke to the complainant at or about the time of the respondent’s arrest in this case. The fourth item defence counsel mentioned was the “return by the Dufferin detachment of the O.P.P.”, but he indicated he was not sure whether it had been provided.
[48] Crown counsel indicated that the Crown had already obtained consents to the third party records and that she expected all the items could be provided quickly. However, she agreed it was appropriate to put the matter over to the next assignment court, and added it was the Crown’s intention to proceed with the trial in the next settings.
[49] The court interjected and suggested to counsel that they write to the Regional Senior Justice and seek “special time dedicated to this matter”, thus perhaps avoiding a long adjournment. Defence counsel reiterated that he was unwilling to set a trial date until he had all the material, and the matter was then adjourned to the next assignment court on May 31, 2004.
[50] The respondent submits that this entire period should be attributed to the Crown.
[51] I have already indicated my view that the time taken to obtain the third party records the defence wanted should not be laid at the feet of the Crown. In any event, given the Crown counsel’s report on March 22, 2004, that it had already obtained consents from the third parties and the records could be expected shortly, the defence was not, in the circumstances, entitled to refuse to set a trial date.
[52] As for the other material, the record does not even establish that the material from the O.P.P. was, in fact, outstanding. Defence counsel was not sure it had not been provided. The police officers’ notes, which the Crown was bound to disclose, were outstanding. The respondent advanced no explanation why a trial date could not be set when the notes were expected shortly. Nor did defence counsel seek to justify his refusal to set a date for trial because he needed time to review the material that had recently been provided to him.
[53] As the transcript makes clear that the Crown agreed that the matter should be put over, I regard the Crown’s suggestion that the allocation of this period of delay be shared to be an appropriate one. I would divide the delay equally between the Crown and the defence, allocating thirty-five days to each. The Crown suggested that a portion of the time should be allocated to institutional delay. I would not do so as the defence did not take up the court’s suggestion of seeking a special date from the Regional Senior Justice.
Delay After May 31, 2004
[54] At the May 31, 2004 appearance, the Crown indicated it was prepared to proceed with the trial during the sittings commencing June 7, 2004. Defence counsel was unavailable during that sitting, and requested that the matter be adjourned to the assignment court on November 22, 2004, with a view to commencing the trial during the November 29, 2004 sittings. Defence counsel raised no issues such as outstanding disclosure; the only reason given for the adjournment was defence counsel’s unavailability.
[55] Section 11(b) of the Charter guarantees a person charged with an offence “the right to be tried within a reasonable time.” There is, therefore, no infringement of s. 11(b) where the state offers the accused a trial date within a reasonable time, and the accused refuses the offer and delays the proceeding further. In such a case, the accused’s right to a trial within a reasonable time has been protected.
[56] In this case, the events after the respondent was offered a trial date in early June 2004, must be examined to determine whether the state is responsible for any of the subsequent delay. The respondent, as the s. 11(b) applicant, bears the burden throughout.
[57] As it turned out, the trial did not proceed on November 29, 2004. The accused changed counsel, and his new counsel decided to bring a s. 11(b) application. The trial was adjourned to accommodate the bringing of the s. 11(b) application, which was heard January 19 and 20, 2005.
[58] The respondent seeks to avoid responsibility for the delay that followed the adjournment of the November 29, 2004 trial date by submitting that the adjournment was caused by delays in the preparation of the transcripts required for the s. 11(b) application.
[59] The record indicates that, due to confusion between these charges and other charges the respondent was facing, the wrong transcripts were initially ordered. The affidavit filed on behalf of defence counsel deposes that a court clerk initially provided the wrong court file number, and that when defence counsel realized the error, the correct transcripts were ordered on an urgent basis. On November 22, 2004, a judge adjourned the trial because it was apparent the transcripts would not be ready by November 29, 2004.
[60] The defence affidavit makes clear that defence counsel was retained in May 2004 and received the respondent’s previous counsel’s file in June 2004, but ordered the first transcripts on September 8, 2004. The affidavit seeks to explain the delay in ordering transcripts by deposing that defence counsel could not meet with Mr. N.N.M., “until late-July or early August 2004 due to Mr. N.N.M.’ very restrictive bail conditions which did not allow Mr. N.N.M. to leave the Windsor area to meet with his counsel.” His counsel practiced and resided in the City of Toronto.
[61] I cannot accept that the passage of four months without ordering the transcripts can be justified on this basis. In any event, the respondent’s new defence counsel was evidently unaware that his bail conditions had been varied. As of his January 26, 2004 recognizance, the respondent was permitted to meet with his counsel at any time and at any place as long as he had a surety present. In my view, the state should not be saddled with delay that would not have occurred but for the misapprehension of defence counsel with respect to the respondent’s bail conditions.
[62] More to the point, the misapprehension of defence counsel aside, the respondent himself would have known what his own bail conditions were, but it seems he was content to allow the matter to languish. I conclude that the respondent is responsible for the loss of the November 29, 2004 trial date.
[63] Equally telling is the fact that the respondent’s previous counsel had scheduled November 29, 2004, as the trial date without giving any indication that a s. 11(b) application might be brought. The respondent’s new counsel, upon being retained in May and receiving the file in June 2004, took no steps to seek an earlier trial date. Instead he brought the s. 11(b) application relying on the late November 29, 2004 date that had been set to accommodate the schedule of his predecessor.
[64] I summarize what happened as follows. The state offered the respondent a trial date in early June 2004, some twenty-six months after he was charged. Instead, he chose to set a trial date at the end of November 2004, some thirty-two months after he was charged. Then, he brought a s. 11(b) application that further delayed the trial and argued that the delay to the anticipated completion of trial would be approximately thirty-seven months after the charges were laid.
[65] The respondent, of course, was entitled to bring the s. 11(b) application. However, the adjournment it caused is attributable to the defence. It is not a question of fault or blame but rather recognition of the reason why the trial was adjourned. As Arbour J.A. said in R. v. Harrison, [1991] O.J. No. 881 (C.A.) in relation to a defence application to quash a committal to trial:
The respondent was entitled to move to quash his committals for trial, even if these motions required a postponement of the original trial date. However, he must then accept the reasonable delays that occur as a consequence of this additional step in the pre-trial process.
[66] Of the period in excess of eleven months between May 31, 2004 and the anticipated end of trial on April 9, 2005, I would allocate nine months to the defence. Based on the Crown’s concession, I would allocate the two remaining months to inherent time required to deal with the s. 11(b) application, await the court’s decision, and to hold the trial.
[67] Since neither inherent time nor the defence delay count against the Crown, it is apparent that the s. 11(b) clock stopped running when the accused refused a trial date in early June 2004.
Results of Chronological Analysis
[68] Aggregating the conclusions of this analysis results in almost fourteen and a half months of defence delay, about eight months of inherent time, some five weeks of Crown delay, and almost fourteen months of institutional delay.
[69] The fact that the system could not provide a date for the preliminary hearing earlier than twelve months is a matter of obvious concern. By itself, this period exceeds the guideline for institutional delay in the Ontario Court of Justice. The record discloses no unexpected and unusual circumstances that would explain this extraordinary delay. Nevertheless, the s. 11(b) analysis does not focus on individual time periods. The total delay in the case must be assessed in determining its reasonableness. The total period of institutional and Crown delay is well within the guidelines’ range of sixteen to eighteen months for a case that proceeds through both levels of court.
[70] Moreover, neither party in this case took into account the preparation time required by counsel. As noted above, Sopinka J. in Morin made clear that the time counsel require to prepare for trial and the other steps in the proceeding is inherently required. Defence counsel indicated to the court on November 22, 2004, that he required two weeks to prepare for the s. 11(b) application. The record does not indicate any estimates of counsel as to the preparation time required for trial, the preliminary hearing, the judicial pre-trials, the bail hearings and the other steps of the proceeding. I decline to make an allowance for preparation time in the absence of indication from counsel as to the amount of time spent on the case and when they spent that time. The allowance for preparation time in this case, if one were made, would have to be increased because the respondent changed counsel leading to inevitable duplication of effort. Preparation time may have run concurrently with time attributed to one of the other categories and would affect the analysis only if it reduced Crown or institutional delay.
Prejudice
[71] The trial judge found that, as a result of his restrictive bail conditions, the respondent suffered actual prejudice in this case. His liberty interests were affected by the restrictive bail conditions, his personal relationships including those with his children suffered, his reputation was damaged, and that his ability to make full answer and defence had been affected because his memory had dimmed and face-to-face communication with his counsel was difficult given the geographical constraints in his bail.
[72] Even though the combination of Crown and institutional delay is within the guidelines, it is necessary to consider whether the total delay is unreasonable in light of the actual prejudice the respondent has experienced.
[73] The trial judge’s findings of prejudice must be understood in context. The respondent was facing three sets of serious criminal charges and was on bail on the other charges as well as the charges in this case. Any prejudice that the respondent suffered from restrictive bail conditions, in a sense, arose from all the charges he faced. The same observation may be made about damage to his reputation. His reputation suffered damage from the other charges as well.
[74] The conditions of the respondent’s bail did not specifically preclude any contact with his children, and, after January 2004, placed no restriction on his ability to meet with his counsel, as long as he was in the company of a surety. Therefore, his prejudice in these areas also stemmed from his failure to arrange for his children to spend time with him in Windsor, his choice of a counsel located in Toronto, and the schedule and mobility of his sureties.
[75] The dimming of memory as time passes is unfortunately present in all cases. The respondent is a trained police officer who was facing charges that spanned an eighteen-year period. The prejudice he suffered from the delay in the proceeding relates only to the dimming of memory after he was charged.
[76] The final contextual observation relevant to assessing the level of the respondent’s prejudice is the fact that he did little or nothing to move his case forward to an early trial. In Morin, Sopinka J. stated that where the evidence establishes that “the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused”, then conduct “falling short of waiver may be relied upon to negative prejudice.” He stated this principle after observing that many, and perhaps even most, accused are not anxious to have an early trial. Sopinka J. quoted Doherty J. who wrote in a paper given to the National Criminal Law Programme in July 1989:
an accused is often not interested in exercising the right bestowed on him by s. 11(b). His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits. This view may seem harsh but experience supports its validity.
[77] Sopinka J. cautioned that the s. 11(b) right “must be interpreted in a manner which recognizes the abuse which may be invoked by some accused”.
[78] The evidence in this case clearly establishes that the accused did nothing to move his case forward to trial in a timely way. Many of his failings in this regard are apparent from the foregoing analysis of the chronology of the proceeding. On June 4, 2002, he requested a remand to a date “a long way off.” On July 23, 2002, the failure of the defence to send a letter requesting disclosure caused an adjournment. On November 12, 2002 and March 15, 2004, agents who were not fully prepared to deal with the matter appeared on behalf of defence counsel. On December 8, 2003, and March 15, 2004, the respondent did not act upon the court’s encouragement to seek special dates. Most important is the fact he declined to accept an early trial date offered by the system.
[79] There is a further matter arising out of the respondent’s refusal on May 31, 2004 to accept the June 2004 trial date. The affidavits filed on his behalf indicate that the respondent’s first counsel was discharged in May 2004 and his subsequent counsel was retained in May 2004. It would seem that, on May 31, 2004, the respondent declined to set an early trial date purportedly because of his first counsel's unavailability, when it would seem he knew that his first counsel’s calendar was irrelevant in setting the trial date. His failure to disclose to his first counsel and to the court the fact that he had already retained new counsel leads to the conclusion he had no interest in an early a trial date. If there is some explanation of the timing set out in the affidavits that would counter this inference, respondent’s counsel on the appeal could not provide it.
[80] Moreover, the respondent’s new trial counsel, upon being retained in May 2004, made no attempt to reschedule the trial from the late date that had been set because of the first counsel’s busy schedule. The respondent’s new counsel took no steps to move the file forward until September 2004.
[81] I would conclude that the prejudice suffered by the respondent is largely negated by evidence that he did not want an early trial date. Given this conclusion, the prejudice he has suffered must be accorded little or no weight.
Conclusion
[82] For these reasons I conclude that the respondent’s s. 11(b) rights were not infringed and that there was no unreasonable delay in scheduling his trial. I would allow the appeal, set aside the order staying the proceedings, and remit the matter to the Superior Court for trial.
“R.G. Juriansz J.A.”
“I agree K. Feldman J.A.”
“I agree J. MacFarland J.A.”