Her Majesty the Queen v. C.R.G. [Indexed as: R. v. G. (C.R.)]

77 O.R. (3d) 308

[2005] O.J. No. 3764

Docket: C41946

Court of Appeal for Ontario,

Rosenberg, MacFarland and Rouleau JJ.A.

September 7, 2005

Charter of Rights and Freedoms -- Trial within reasonable time -- Trial judge granting stay of proceedings based on unreasonable delay 23 months after serious charges were laid -- Trial judge erring in finding that systemic delay in Ontario Court of Justice grossly exceeded applicable guidelines -- Trial judge erroneously including neutral intake period in period of systemic delay -- Trial judge erring in isolating time in Ontario Court of Justice from entire time necessary to try case -- Accused's right to trial within reasonable time not violated -- Canadian Charter of Rights and Freedoms, s. 11(b).

The accused was charged in June 2002 with a number of serious offences against his spouse, including assault causing bodily harm, assault with a weapon and sexual assault. On January 30, 2003, some 7 1/4 months after the charges were laid, the parties were ready to schedule a date for the preliminary inquiry. Because of an inflexible rule in the jurisdiction that if the preliminary inquiry is to last more than a day, there must first be a judicial pre-trial, the case was adjourned for two months for a pre-trial. The preliminary inquiry was held on September 25 and 26, 2003 but was not completed, and could not be continued until January 29, 2004. On that date, the accused was ordered to stand trial. The case had been in the Ontario Court of Justice for 19 1/4 months. A trial was scheduled for May 17, 2004. In all, 23 months elapsed from the time the accused was charged. The trial judge granted a stay of proceedings on the basis that the accused's right under s. 11(b) of the Canadian Charter of Rights and Freedoms to a trial within a reasonable time was violated. His finding of unreasonable delay was based on what he considered was an unacceptable systemic delay in the Ontario Court of Justice. The Crown appealed.

Held, the appeal should be allowed. [page309]

The guideline set by the Supreme Court of Canada for institutional or systemic delay in the Ontario Court of Justice is eight to ten months, a period of time that only starts to run after the intake period. In finding that the 19 1/4 months' delay in the Ontario Court of Justice was twice the maximum permissible limit, the trial judge failed to take into account that a period of 7 1/4 months comprised the neutral intake period. When that 7 1/4 months was deducted, the institutional delay in the Ontario Court of Justice was 12 months, a time that exceeded the upper end of the guideline by two months. The trial judge also erred in isolating the time in the Ontario Court of Justice from the entire time necessary to try the case. While the delay in the Ontario Court of Justice was lengthy, the authorities moved with admirable dispatch to ensure that the accused obtained an early trial in the Superior Court of Justice. In considering whether the accused's s. 11(b) rights were infringed, the trial judge was required to look at the whole period, not just whether the case met the guidelines in the Ontario Court of Justice. Finally, the trial judge erred in characterizing some of the delay as systemic delay when part of the delay due to the adjournment of the preliminary inquiry was more properly characterized as part of the inherent time requirements of the case. The accused's right to trial within a reasonable time was not violated. The total delay warranted investigation and the amount of delay that was tolerable in this case was at the lower end of the range given the prejudice to the accused because of his very strict bail conditions. However, the allegations against him were serious, especially the allegation that, while on duty as a police officer, he threatened his wife with his service gun. The fact that the accused was a police officer caused an additional difficulty, as it was necessary to bring in an out-of-town Crown counsel and out-of-town judges to ensure the appearance of fairness. That made the scheduling of the preliminary inquiry and especially the continuation, somewhat more complex than might ordinarily be the case. In all of the circumstances, the delay was not unreasonable.

APPEAL by the Crown from a stay of proceedings ordered by Reilly J. of the Superior Court of Justice, dated May 19, 2004. [page310]

R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106, 75 O.R. (2d) 673, 42 O.A.C. 81, 74 D.L.R. (4th) 355, 113 N.R. 241, 49 C.R.R. 1, 59 C.C.C. (3d) 449, 79 C.R. (3d) 273 (sub nom. Askov, Hussey, Gugliotta & Melo v. R.); R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 134 N.R. 321, 8 C.R.R. (2d) 193, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1, consd Other cases referred to R. v. Allen, 1997 331 (SCC), [1997] 3 S.C.R. 700, [1997] S.C.J. No. 91, 220 N.R. 67, 119 C.C.C. (3d) 1, 11 C.R. (5th) 296, affg 1996 4011 (ON CA), [1996] O.J. No. 3175, 39 C.R.R. (2d) D-2, 110 C.C.C. (3d) 331, 1 C.R. (5th) 347 (C.A.); R. v. Bennett, 1992 61 (SCC), [1992] 2 S.C.R. 168, [1992] S.C.J. No. 58, 9 O.R. (3d) 276, 138 N.R. 388, 9 C.R.R. (2d) 195, 74 C.C.C. (3d) 384, affg (1991), 1991 2701 (ON CA), 3 O.R. (3d) 193, [1991] O.J. No. 884, 46 O.A.C. 99, 7 C.R.R. (2d) 145, 64 C.C.C. (3d) 449, 6 C.R. (4th) 22 (C.A.); R. v. Chatwell, 1998 784 (SCC), [1998] 1 S.C.R. 1207, [1998] S.C.J. No. 51, 161 D.L.R. (4th) 65, 227 N.R. 1, 125 C.C.C. (3d) 433, 16 C.R. (5th) 324, quashing (1998), 1998 3560 (ON CA), 38 O.R. (3d) 32, [1998] O.J. No. 206, 122 C.C.C. (3d) 162 (C.A.); R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711, 192 O.A.C. 50, 123 C.R.R. (2d) 311, 190 C.C.C. (3d) 453, 27 C.R. (6th) 142 (C.A.); R. v. Tsui, [2004] O.J. No. 5293, [2004] O.T.C. 1147, 28 C.R. (6th) 127, 16 M.V.R. (5th) 109 (S.C.J.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b)

Melissa Ragsdale, for appellant. Alan Gold, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- On June 23, 2002, the respondent was arrested and charged with a number of serious offences based on allegations by his spouse. These charges covered a period from September 1999 to April 2002. Twenty-three months later, on May 19, 2004, Reilly J. of the Superior Court of Justice stayed the charges because he found that the respondent's right to a trial within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms had been violated. The trial judge's finding of unreasonable delay was based on what the trial judge considered was an unacceptable systemic delay in the Ontario Court of Justice. The Crown appeals from the stay of proceedings.

[2] In my view, the trial judge erred in law in three respects. He erred in finding that the systemic delay grossly exceeded the guidelines set down by the Supreme Court of Canada. He erred in isolating the time in the Ontario Court of Justice from the entire time necessary to try the case. Finally, he erred in characterizing some of the delay as systemic delay when part of the delay due to the adjournment of the preliminary inquiry was more properly characterized as part of the inherent time requirements of the case. As a result, the trial judge erred in finding that the respondent's rights had been violated. Accordingly, I would allow the appeal, set aside the stay of proceedings and order a new trial.

The Facts

The allegations

[3] At the time of the alleged offences, the respondent was a police officer with the Hamilton Police Service. The complainant was his spouse. She alleges that on several occasions between 1999 and 2002 the respondent threatened her and assaulted her. Thus, she alleges that some time in 1999, the respondent came home while on duty, took his service gun out of its holster and pointed it at her and followed her through the house with it like she was a target. On other occasions, the respondent chased the complainant throughout the house, threatening her with a knife. In February 2000, the respondent approached the complainant as she was falling asleep in bed. He put his hands around her throat and cut off her air supply so that she could not breathe. She was wheezing and gasping for air until he finally let go. [page311] Thereafter, strangling became a regular occurrence and if she struggled he would apply more pressure.

[4] The last incident appears to have taken place in April 2002, after the complainant had moved out of the house. She returned to the house because the respondent said he would do her income tax return for her. When she arrived, the respondent forced her to take off her clothes. He made her sit naked while he prepared the return. He then sexually assaulted her.

[5] The respondent was charged with six offences: pointing a firearm, unlawful use of a firearm, assault causing bodily harm, assault with a weapon, sexual assault and breach of probation.

The chronology

[6] As is often the case with allegations of unreasonable delay, there is a complex chronology. Fortunately, in this case there are few material disputes about the reasons for the delay and the parties do not seriously contest most of the trial judge's findings of fact. I also accept all but one of the trial judge's findings characterizing the delay [See Note 1 at the end of the document]. Accordingly, a simplified chronology will suffice. The respondent was arrested on June 23, 2002. He was refused bail and held in custody until August 2, 2002 when he was released on a bail review. The release order contained very strict terms, similar to house arrest. While these terms were varied slightly on several occasions, the respondent essentially remained subject to very strict terms that inhibited his mobility and his ability to obtain employment.

[7] On January 30, 2003, some 7 1/4 months after the respondent was first charged, the parties were ready to schedule a date for the preliminary hearing. The trial judge characterized this time as the intake period. This time was somewhat longer than is usually the case but is explained in part by delay by the respondent in retaining counsel and then, not unreasonably, delays by defence counsel in familiarizing himself with the disclosure. There also seems to have been some complaints by the defence about the disclosure process. In any event, the trial judge refused to attribute any of this time as delay caused either by the Crown or the defence, and I accept this finding as a reasonable one.

[8] One other minor complication should also be mentioned. Because the respondent was a Hamilton police officer, it was [page312] necessary to take special steps to ensure the appearance of fairness to the parties. Thus, the case was assigned to an assistant Crown Attorney from another jurisdiction and the preliminary inquiry judge, Ledressay J., and the trial judge were from other jurisdictions.

[9] The trial judge found that the systemic delay began to run from January 30, 2003 when the parties were prepared to set a date for the preliminary inquiry. The parties could not set a date at that time because of an inflexible policy in Hamilton that if the preliminary inquiry is to last more than a day, there must first be a judicial pre-trial. Accordingly, the case was adjourned for two months for a judicial pre-trial. The pre-trial itself was brief and so unremarkable that neither counsel could remember any details. The trial judge was very critical of this policy. He was of the view that the pre-trial was unnecessary in this case because the case was being handled by very experienced counsel who did not need the assistance of a judge to narrow or define the issues for the preliminary inquiry. I will make some comment about this aspect of the case at the end of these reasons.

[10] The day after the pre-trial, March 27, 2003, the parties were now ready and entitled to set a date for the preliminary inquiry. Unfortunately, there were no dates available in June, the out-of-town Crown counsel was not available in July and there were no dates yet open in August. The case was adjourned two weeks to set a date in August. However, when the parties returned to court on April 10, 2003, the August dates were gone. The case was adjourned a further two weeks when September dates would open up. On April 24, 2003, the preliminary inquiry was scheduled for September 25 and 26, 2003, the parties having estimated that the preliminary inquiry would take two days to complete.

[11] The preliminary inquiry was held on September 25 and 26 but not completed. Two complications arose. First, it was discovered that through inadvertence the complainant's diary and some notes she had given to the police had not been disclosed to the defence. Defence counsel was unwilling to complete his cross-examination of the complainant without this material. Second, in any event, the two-day estimate for the preliminary inquiry was slightly inaccurate. More time was required to complete the preliminary inquiry. The case was therefore adjourned to September 30, 2003 to set a date for continuation of the preliminary inquiry. By that time the notes had been located. They were not immediately turned over to the defence since the complainant required a brief time to consult counsel. The case had to be adjourned a further three days so that the trial co-ordinator could obtain dates for continuation. [page313]

[12] Due to scheduling conflicts of counsel and the out-of-town judge the preliminary inquiry could not be continued until January 29, 2004. On that date, the preliminary inquiry was completed and the respondent ordered to stand trial. The case had now been in the Ontario Court of Justice for 19 1/4 months. The respondent appeared in the Superior Court of Justice on February 20, 2004. The case was adjourned for two weeks to obtain dates from the out-of-town judge who would hear the case. On March 5, 2004, the trial was scheduled for May 17, 2004. Thus, the case was ready for trial after only 3 3/4 months in the Superior Court of Justice. In all, 23 months had elapsed from the date the respondent was charged.

The trial judge's reasons

[13] The trial judge gave very lengthy oral reasons at the conclusion of the hearing on the defence application for a stay of proceedings. He made the following significant findings:

• The allegations are obviously "serious and sensitive".
• None of the delay, including the delay from the inadvertent non-disclosure, was due to actions of the Crown or defence.
• The defence was keen on proceeding expeditiously because the respondent was under very strict bail conditions.
• The trial judge had "no real criticism" of the delay between arrest and when the parties were ready to set a date for the preliminary inquiry (7 1/4 months).
• The trial judge did not favour mandatory judicial pre-trial conferences and a pre-trial was unnecessary in this case and caused two months of unnecessary delay.
• Counsel's original estimate for the length of the preliminary inquiry "turned out not to be accurate". Two days were insufficient to complete the preliminary inquiry "for reasons that were valid and understandable and occur on a regular basis". The four months' delay to complete the preliminary inquiry was "also unacceptable in the context of this case".
• According to the Supreme Court of Canada the time in the Ontario Court of Justice from date of charge to trial or preliminary inquiry, as the case may be, should in most cases not exceed eight to ten months. [page314]
• The trial judge was "quite prepared" to extend the ten months to 11 or 12 months, but the delay of over 19 months in the Ontario Court of Justice was "simply intolerable".
• The total delay in the Ontario Court of Justice of 19 months "offends in the extreme" the guidelines set out by the Supreme Court of Canada and "is effectively twice the maximum permissible limit".
• "The problems appear to stem from limitations on institutional resources . . . . It is the system that is at fault. There was not an appropriate appreciation of the need to give priority to this case when time started to mount up. There are no other reasons that factor into the situation."
• The respondent suffered real prejudice because of the very restrictive bail conditions, which must be given significant weight. However, there was no other prejudice such as loss of evidence or witnesses.

Analysis

[14] In my view, the trial judge made two fundamental and related legal errors. He misinterpreted the effect of the decisions of the Supreme Court of Canada and this court concerning guidelines for institutional or systemic delay. Further, he isolated the delay in the Ontario Court of Justice and failed to consider whether the entire period of time from the date of charge to the trial date was unreasonable. Finally, he erred in his characterization of some of the delay as institutional delay when it was more properly characterized as part of the inherent time requirements of the case.

The guidelines for institutional delay

[15] As indicated above, the trial judge found that the total delay of 19 months in the Ontario Court of Justice was outside the guidelines set by the Supreme Court. In making that finding, the trial judge failed to take into account the fact that a sizeable part of that delay was intake delay and neutral and should not have been counted as part of the institutional delay. The trial judge found that 7 1/4 months from the date the respondent was charged until the parties were ready to set a date for the preliminary inquiry was intake delay. This was a lengthy period, but as I have said above, there were explanations; in particular, defence counsel was not prepared to set a date for the preliminary inquiry until he had been properly retained and reviewed the disclosure. I see no reason to disagree with the trial judge's [page315] characterization of this period as intake delay. Unfortunately, the trial judge failed to deduct this period from the overall period. Rather, he said that the total delay of 19 months in the Ontario Court of Justice "offends in the extreme ... the parameters set out by the Supreme Court of Canada in both R. v. Askov ... and R. v. Morin ... It is effectively twice the maximum permissible limit." This, in my view, is a misreading of those two cases.

[16] In R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, 75 O.R. (2d) 673, [1990] S.C.J. No. 106, 59 C.C.C. (3d) 449, the Supreme Court considered delay in the Ontario Court (General Division) in the District of Peel (now the Superior Court of Justice, Central West Region). All of the delay was systemic or institutional delay due to inadequate institutional resources in that court. After a comparison with other jurisdictions, particularly Montreal [See Note 2 at the end of the document], Cory J. held, at p. 1240 S.C.R., p. 490 C.C.C., that "a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable". This statement was made in the context of a discussion of systemic or institutional delay; it was the six to eight months institutional or systemic delay that was the outside limit. This meaning of Cory J.'s statement becomes apparent from the reasons in the subsequent case of R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 71 C.C.C. (3d) 1. In that case, the court clarified some of the statements made in Askov and dealt explicitly with institutional delay in the provincial court, the principal issue in this case.

[17] In Morin at pp. 794-95 S.C.R., p. 18 C.C.C., Sopinka J. held that institutional delay "starts to run when the parties are ready for trial but the system cannot accommodate them". He pointed out that, in Askov, the court was dealing with a delay of two years subsequent to committal for trial, all of which was institutional or systemic delay. Cory J.'s comment in Askov that a delay beyond six to eight months between committal and trial was unreasonable had to be read in that context. At pp. 798-99 S.C.R., p. 21 C.C.C. of Morin, Sopinka J. made it clear that this six- to eight-month guideline referred only to institutional or systemic delay:

In Askov, Cory J., after reviewing comparative statistics, suggested that a period in the range of 6 to 8 months between committal and trial would not [page316] be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between eight and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay.

(Emphasis added)

[18] Earlier at pp. 791-92 S.C.R., pp. 16-17 C.C.C., Sopinka J. extensively discussed the concept of "inherent time requirements", what I have referred to as the intake period. He pointed out that where a case proceeds through a preliminary inquiry there will be delay due to intake procedures both in the provincial court and the trial court, although the latter period should be shorter because there is no need to duplicate many of the intake procedures. In Morin, a trial in the provincial court, Sopinka J. found, at p. 805 S.C.R., p. 26 C.C.C., that the inherent time requirements of the case were two months. He deducted this period from the total period of just over 14 1/2 months to find that the case involved an institutional delay of about 12 months, again stressing, at p. 806 S.C.R., p. 27 C.C.C., that this "is the time from which the parties were ready for trial until the point at which the courts were able to accommodate this case".

[19] To summarize this aspect of the case, the guideline set by the Supreme Court for institutional or systemic delay in the provincial court, now the Ontario Court of Justice, is eight to ten months, a period of time that only begins to run after the intake period. Thus, the trial judge erred in holding that the Supreme Court has held that the delay from charge to trial or preliminary inquiry in the Ontario Court of Justice should in most cases not exceed eight to ten months and that the 19 1/4 months' delay in that court was twice the maximum permissible limit. He failed to take into account that a period of 7 1/4 months comprised the neutral intake period. When that 7 1/4 months is deducted, the institutional delay in the Ontario Court of Justice was 12 months, a time that exceeds the upper end of the Morin guideline by two months.

Isolating the delay in the Ontario Court of Justice

[20] This brings me to the second related error. The trial judge erred in isolating the delay in the Ontario Court of Justice from the entire time period. While the delay in the Ontario Court of Justice was lengthy, the authorities moved with admirable dispatch to [page317] ensure that the respondent obtained an early trial in the Superior Court of Justice. In considering whether the respondent's s. 11(b) rights were infringed, the trial judge was required to look at the whole period, not just whether the case met the Morin guidelines in the Ontario Court of Justice. The trial judge made an error similar to the error dealt with by this court in R. v. Allen, 1996 4011 (ON CA), [1996] O.J. No. 3175, 110 C.C.C. (3d) 331 (C.A.), affirmed 1997 331 (SCC), [1997] 3 S.C.R. 700, [1997] S.C.J. No. 91, 119 C.C.C. (3d) 1.

[21] In Allen, the motions judge held that s. 11(b) provided two constitutional rights: a right to have the trial completed within a reasonable time, and a separate right not to be subjected to any unreasonable delay during the process. Speaking for the court at p. 345 C.C.C., Doherty J.A. disagreed:

I can see nothing in the language of s. 11(b) which suggests any right to have one's trial proceed according to a constitutionally mandated timetable. Section 11(b) creates one right -- the right to be tried within a reasonable time. As long as the entire time period in issue cannot be said to be unreasonable when tested against the principles pronounced in R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.), there is no violation of s. 11(b).

(Emphasis added)

[22] Doherty J.A. went on to note that in R. v. Bennett (1991), 1991 2701 (ON CA), 3 O.R. (3d) 193, [1991] O.J. No. 884, 64 C.C.C. (3d) 449 (C.A.), at p. 211 O.R., p. 467 C.C.C., affirmed 1992 61 (SCC), [1992] 2 S.C.R. 168, 9 O.R. (3d) 276, [1992] S.C.J. No. 58, 74 C.C.C. (3d) 384, this court held that, "A case may take too long to reach the preliminary inquiry, but then may be tried very expeditiously after committal. ... Ultimately, it is the reasonableness of the total period of time that has to be assessed, in light of the reasons that explain its constituent parts." Thus, the issue for the trial judge in this case was not simply whether the time prior to committal for trial was excessive but whether the entire period of 23 months was unreasonable.

Characterizing the delay to continue the preliminary inquiry

[23] Finally, in my view, the trial judge erred in his characterization of one part of the delay in the Ontario Court of Justice. He seems to have attributed all of the delay after January 30, 2003, when the parties were ready to set a date for the preliminary inquiry, to systemic or institutional delay. In my view, some of the time after the second day of the preliminary inquiry should have been characterized as part of the inherent time requirements of the case. As I have pointed out, there were two reasons the preliminary inquiry was not completed on September 26, 2003: the original estimate by counsel of two days was inaccurate and the defence had not been provided with the complainant's notes and [page318] diary [See Note 3 at the end of the document] Since the case had to be adjourned, some delay was inevitable and in Allen, at p. 348 C.C.C., this court held that some part of the time needed "to find additional court time when initial time estimates prove inaccurate" is attributed to the inherent time requirements of the case and as such "are considered to be neutral in the s. 11(b) calculus". Also see R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711, 190 C.C.C. (3d) 453 (C.A.), at para. 27 and R. v. Tsui, 2004 48707 (ON SC), [2004] O.J. No. 5293, 28 C.R. (6th) 127 (S.C.J.), at paras. 16 and 17.

[24] Thus, some part of the four-month delay between September 26, 2003 and January 29, 2004 must be deducted from the 12 months' institutional delay found by the trial judge. The record indicates that the next possible date for continuance of the preliminary inquiry was October 10th, but out-of-town Crown counsel was not available because she was involved in another continuing trial. According to defence counsel, while he had earlier dates when he was available, the next available date "where the switch of judges--bringing Ledressay J. in from Halton and having a judge from Hamilton going there" was January 29th. In my view, defence counsel's comments demonstrate that the four-month delay cannot be wholly attributed to institutional delay. Neither Crown counsel nor the preliminary inquiry judge could be expected to drop everything else to accommodate this one case. As Doherty J.A. said in Allen at p. 348 C.C.C., "The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources."

[25] In the course of submissions, the trial judge seems to have recognized that part of the four months' delay should be attributed to the inherent time requirements of the case. Crown counsel referred the trial judge to Allen and the trial judge said this in response:

That is why, those factors being taken into consideration, we would factor that into inherent time requirements, the mid-process equivalent of intake [page319] time. It might be slightly longer in a case where you've got out-of-town counsel, out-of-town judge, et cetera and you have to factor in those things, so instead of one month we'll give you six weeks, so to speak, or even two months but four months seems to be just an extraordinary long period of time [defence counsel] would say.

[26] Unfortunately, these comments did not find their way into the trial judge's reasons and he failed to take this aspect of the case into account. I would adopt the trial judge's statement during submissions that six weeks to two months should be attributed to the inherent time requirements of the case and should be deducted from the 12 months of institutional delay prior to the committal for trial. Using six weeks as an appropriate measure of the inherent time requirements of the case due to the continuation of the preliminary inquiry means that there were 10 1/2 months of institutional delay, which only slightly exceeds the upper end of the Morin guideline for provincial courts.

Was the respondent's s. 11(b) right infringed?

[27] That brings me to the final question, whether the respondent's right to a trial within a reasonable time was violated. In my view, it was not. Twenty-three months from date of charge to the trial date required investigation. Further, the amount of delay that was tolerable in this case must be at the lower end of the range given the prejudice to the respondent because of the very strict bail conditions. The affidavits filed before the trial judge demonstrate the dramatic impact of those bail conditions and the delay on the respondent and his family. The respondent's emotional and physical health has suffered. He has suffered financially because he is unable to obtain employment due to the strict bail conditions. Finally, the very long intake period, while understandable in the circumstances, required that some priority be given to this case once time came to set the preliminary inquiry date.

[28] However, when the reasons for the delay are considered and in particular that 8 3/4 months are attributed to neutral intake or inherent time requirements of the case, the delay is not unreasonable. There must also be some recognition of the nature of the case. The allegations were serious; the respondent is alleged to have terrorized his spouse over a period of almost three years. The allegations include the very serious charge that while on duty the respondent threatened his wife with his service gun. While the case was not overly complex, it was not a simple assault case and three days were required to complete the preliminary inquiry. Finally, as noted earlier, there was the additional difficulty that, because the respondent was a police officer, [page320] it was necessary to bring in an out-of-town Crown counsel and out-of-town judges to ensure the appearance of fairness. This made scheduling of the preliminary inquiry, especially the continuation, somewhat more complex than might ordinarily be the case. Accordingly, in my view, the respondent's rights under s. 11(b) of the Charter were not infringed and the proceedings should not have been stayed.

Judicial pre-trials

[29] I wish to conclude with some comments about the judicial pre-trial. The trial judge was very critical of the use of mandatory judicial pre-trials in all cases where the preliminary inquiry is expected to exceed one day. In his view, there should be more flexibility, so that either the pre-trial is not mandatory or in appropriate cases the pre-trial can be held almost immediately.

[30] In my view, reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists. That court has seen a huge increase in its caseload so that, according to statistics filed in the Morin case, it handles 95 per cent of criminal cases in Ontario: see R. v. Morin, at p. 806 S.C.R., p. 27 C.C.C. It is entirely reasonable that the court attempt to take measures that will reduce the impact of cases that are expected to be a particular burden on resources. The purposes of the judicial pre-trial are, in part, to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of the time required to hear the case. Whether there is potential benefit from and room for some flexibility in the requirement for, and scheduling of, pre-trials in the Hamilton Ontario Court of Justice, is principally a matter for that court. That said, I do agree that the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case. See R. v. Chatwell (1998), 1998 3560 (ON CA), 38 O.R. (3d) 32, [1998] O.J. No. 206, 122 C.C.C. (3d) 162 (C.A.), at para. 11.

Disposition

[31] Accordingly, I would allow the appeal, set aside the stay of proceedings and order a new trial.

Appeal allowed.

Notes

Note 1: In my view, for reasons that I will explain later, the trial judge erred in finding that the entire delay in the Ontario Court of Justice from the date the parties were ready to set a preliminary inquiry date was institutional delay. In my view, a short preiod of delay after the first two days of the preliminary inquiry was also neutral intake delay.

Note 2: This comparison was based upon an affidavit from Professor Carl Barr, described at pp. 1233-41 S.C.R., pp. 485-90 C.C.C. of Askov. Subsequently, in R. v. Morin at pp. 796-97 S.C.R., p. 20 C.C.C., the Supreme Court found that this comparison was misleading because of the different manner in which criminal charges are dealt with in the Montreal and Peel Region.

Note 3: The transcripts make clear that the inadvertant non-disclosure was not the only reason for the need for additional time. For example, on October 8, 2003 when the case was before Justice fo the Peace Quinn to fix a date to continue, defence counsel said the following:

There were some issues that came up towards the end of the second day of the preliminary inquiry with respect to disclosure that should have been made and hadn't been, and that together with the hour contributed to us not finishing.

(Emphasis added).