W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
DATE: 20031112
DOCKET: C39241
COURT OF APPEAL FOR ONTARIO
DOHERTY, FELDMAN and MACPHERSON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Scott C. Hutchison
for the appellant
Appellant
- and -
R. M.
Kevin Murphy
for the respondent
Respondent
Heard: November 3, 2003
On appeal from the stay of proceedings ordered by Justice Robert L. Maranger of the Superior Court of Justice, dated November 13, 2002.
MACPHERSON J.A.:
[1] This is a Crown appeal from a stay of proceedings ordered on November 13, 2002 by Justice R. L. Maranger of the Superior Court of Justice sitting in Perth. The trial judge stayed the charges of aggravated assault, careless handling of a firearm, sexual assault, incest, unlawful confinement and uttering threats against the respondent on the basis that a delay of five years and six weeks (61½ months) from the date of arrest to the trial date violated his right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter.
[2] The 61½ month period can usefully be divided into three blocks of time:
(1) September 26, 1997 to May 16, 2000 (31½ months) – arrest to commencement of preliminary inquiry;
(2) May 16, 2000 to September 11, 2001 (16 months) – commencement of preliminary inquiry to committal; and
(3) September 11, 2001 to November 13, 2002 (14 months) – committal to stay (in superior court).
[3] The Crown contends that the trial judge erred in three respects in granting a stay: (1) attributing the delay from the commencement to the completion of the preliminary inquiry entirely to the lack of institutional resources; (2) finding that the period of systemic delay in the case was “clearly unacceptable”, and (3) failing to sufficiently consider the conduct of the respondent throughout the proceedings in his assessment of whether the respondent was prejudiced by the delay.
[4] I disagree. Our starting point is the observation that criminal cases should not take 61½ months to reach trial. As the pages of the calendar turn from months to years, there is a duty on all participants in the case – Crown counsel, defence counsel and the presiding judge – to formally recognize that the case has become a real problem and is in jeopardy of not being heard on the merits because of a violation of s. 11(b) of the Charter, as interpreted in the leading judgments of the Supreme Court of Canada: see R. v. Askov (1990), 1990 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.) and R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.).
[5] In this case, there was simply not appropriate recognition by any of the participants that it was a case in jeopardy. Between September 26, 1997 and October 4, 1999, the case did not advance because of a series of mishaps which were no one’s fault, including the death of the respondent’s counsel and the respondent’s illness. In spite of this 24 month delay, on October 4, 1999 the preliminary inquiry was set, without much discussion, for May 16‑18, 2000. On May 18, 2000, with the calendar at 31 months, when the preliminary inquiry was not completed it was adjourned to December 1, 2000. There was not a word from anyone about whether this proposed continuation date was appropriate in light of s. 11(b) of the Charter. On December 1, 2000, with the calendar at 38½ months, the case was adjourned to December 11, not to be continued, but rather to set a new date for its continuation. Again, the presiding judge and both counsel did not say anything that evinced a recognition that this criminal matter had been proceeding for more than three years, but was still mired in only the preliminary inquiry component of the trial. On December 11, 2000, the preliminary inquiry was given a resumption date seven months away, on September 11, 2001, solely because of the conflicting schedules of counsel. On September 11, 2001,with the calendar at 48 months, the preliminary inquiry was completed and the respondent was committed for trial.
[6] This chronology is, as the trial judge said, “clearly unacceptable”. He said:
[W]hat became a serious problem … was once the inquiry started. The inquiry finally got started in May of 2000 and took a full 16 months to complete, being May 2000 to September 11th , 2001. That time frame has to be measured in the context of the history of the proceedings. Here, the case in May 2000 had already been in the system for two and a half years. It should have been fast tracked but instead it got swallowed up and didn’t speed up much more once in the system. [Emphasis added.]
[7] I agree with this analysis. In R. v. Satkunananthan (2001), 2001 24061 (ON CA), 152 C.C.C. (3d) 321 at 343, this court said that “[a] seven‑month delay in scheduling the continuation of a preliminary hearing is too long.” In the present case, the preliminary inquiry was adjourned for seven months on one occasion and then for nine months on a second occasion.
[8] I do not say that long delays in the progress of a preliminary inquiry are always avoidable or indicative of systemic delay. The complexities of certain criminal trials, institutional resources, underestimates by counsel of the time required to complete the preliminary inquiry, and the position of the parties, especially any express waiver of time periods by the accused, might justify some delays.
[9] However, what I do say is that it is incumbent on the presiding judge and both counsel to explicitly recognize a case that is in trouble and to discuss fully on the record how to deal with the problem.[^1] 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 solve 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 quite consciously to schedule the continuation of the preliminary inquiry – 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.
[10] None of this happened in this case. The trial judge was right to identify the fundamental problem that led to an unacceptable 61½ month delay, namely, the preliminary inquiry “got swallowed up” in the system without anyone raising the problem on the record or moving to solve it in an appropriate fashion.
[11] I would dismiss the appeal.
RELEASED: November 12, 2003 (“DD”)
“J. C. MacPherson J.A.”
“I agree Doherty J.A.”
“I agree K. Feldman J.A.”
[^1]: I note that Crown counsel did take steps, outside court, to try to find earlier dates on at least two occasions.