DATE: 20051108

DOCKET: C42785

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – ANTONIO REGO (Respondent)

BEFORE:

LASKIN, ROSENBERG and LaFORME JJ.A.

COUNSEL:

Alexander Hrybinsky

for the appellant

Douglas R. Lent

for the respondent

HEARD & RELEASED ORALLY:

November 3, 2005

On appeal against the stay of proceedings by Justice Robinson of the Ontario Court of Justice dated November 17, 2004.

E N D O R S E M E N T

[1] The Crown appeals the stay of proceedings on the basis that the trial judge misapprehended the evidence of, and gave undue weight to, prejudice, failed to balance the societal interest and miscalculated the length of institutional delay. It is conceded that there is no waiver of time periods and that the conduct of the Crown and the defence is not in issue. The delay from the date of arrest and charge to the stay of proceedings was just over fourteen months. The parties were ready to proceed by November 12, 2003. The balance of the time is therefore twelve months.

[2] The trial judge took into account that the respondent suffered some psychological harm from the delay. There was a basis for this finding in the respondent’s testimony and the trial judge did not give this factor undue prominence.

[3] The respondent was on strict bail conditions, which was a factor to consider, even though the respondent did not suffer unusual prejudice from the curfew. Finally, the trial judge was entitled to take into account that there was some additional expense from the mandatory appearance in the “Blitz Court” Assignment Court. The trial judge’s assessment of actual prejudice was not unreasonable. The Crown submits that the time should only run to October 1, 2004, the first date Crown counsel was prepared to proceed in the Blitz Court. We do not accept that submission in the circumstances of this case. We agree with Duncan J.’s comments in R. v. Lof, [2004] O.J. No. 4963 (Ct. J.) that the offer of blitz court dates will not always shorten the systemic period. As he says, the offer of only a few dates in a narrow range may mean little or nothing. This is an obvious case. The respondent’s counsel offered many dates in June, July, August and September that were not available to the court.

[4] Accordingly, the institutional delay was twelve months from November 12, 2003 to November 17 of 2004. The delay from the time when the parties were ready for trial which was November 12 and the judicial pre-trial is part of the systemic delay. This twelve months is well outside the eight to nine month guideline for a straightforward case in Peel Region Ontario Court of Justice.

[5] The trial judge expressly indicated he was aware of the need to balance the societal interest in a trial on the merits with the respondent’s s. 11(b) rights. We have not been persuaded that the trial judge misapprehended the evidence, erred in principle or gave unreasonable weight to any of the factors.

[6] Accordingly, the appeal is dismissed.

Signed: “John Laskin J.A.”

“M. Rosenberg J.A.”

“H.S. LaForme J.A.”