DATE: 20060327

DOCKET: C42869

COURT OF APPEAL FOR ONTARIO

LASKIN, ARMSTRONG AND MACFARLAND JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Benita Wassenaar for the respondent

Respondent

• and -

COREY WHYLIE

Leslie Maunder for the appellant

Appellant

Heard: February 8, 2006

On appeal from conviction entered on June 29, 2004, and the sentence imposed on August 6, 2004, by Justice A. Paul Dilks of the Superior Court of Justice, made at Toronto, Ontario.

LASKIN J.A.:

A. OVERVIEW

[1] Corey Whylie appeals from his conviction for possession of a loaded firearm without authorization, contrary to s. 95(1) of the Criminal Code. He challenges two rulings of the trial judge: his ruling under s. 24(2) of the Charter, refusing to exclude from the evidence at trial a gun seized by the police at the time of arrest; and his ruling refusing a stay for an alleged breach of s. 11(b) of the Charter.

[2] On October 22, 2000, at about 1:00 a.m., two police officers pulled over a car in downtown Toronto because the driver, Peter Honigan, allegedly made an improper left-hand turn. Whylie was a passenger in the car. During the stop, the police learned that neither Honigan nor Whylie had a licence to drive the car. The police then decided to tow the car as neither man could drive it and it was illegally stopped. While performing an inventory search before the tow, the police found a loaded Smith and Wesson .38 calibre revolver partially hidden on the floor near the passenger seat.

[3] Whylie and Honigan were then arrested and charged with possession of a loaded firearm without authorization. Although the two were to have been tried together, during the preliminary hearing in the Ontario Court of Justice, the Crown agreed to a severance, because Honigan’s counsel was unavailable and Whylie was concerned about delay. On February 8, 2002, Whylie was committed for trial.

[4] Honigan elected to be tried in the Ontario Court of Justice. He later re-elected to be tried in Superior Court. In October 2002, the Crown successfully applied to rejoin Honigan’s case and Whylie’s case in order to try them together. As a result, Whylie’s scheduled trial date of January 27, 2003 had to be adjourned.

[5] On November 24, 2003, the trial finally began in the Superior Court of Justice. Whylie and Honigan brought a Charter application to exclude the gun, alleging that the police who stopped the car breached their ss. 8 and 9 rights. The trial judge found a breach of these rights, but refused to exclude the gun under s. 24(2) of the Charter.

[6] The trial was then adjourned to April 26, 2004, and again to June 25, 2004, when Whylie brought his s. 11(b) application, alleging a breach of his right to be tried within a reasonable time. The total time from arrest to the hearing of the stay application was forty-four months. Nonetheless, the trial judge dismissed the application.

[7] The parties then agreed that the trial judge could use the evidence on the application under ss. 8 and 9 of the Charter as evidence at trial. Whylie was convicted and sentenced to three years imprisonment. He appeals his conviction. I do not find it necessary to address the trial judge’s s. 24(2) ruling because I have concluded that he erred in failing to find a breach of s. 11(b) of the Charter and, therefore, in failing to grant a stay under s. 24(1) of the Charter.

B. DISCUSSION

[8] The trial judge gave detailed reasons for dismissing Whylie’s application for a stay. He applied the framework for assessing a s. 11(b) claim set out by the Supreme Court of Canada in R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 at 13. He correctly found that forty-four months was a sufficiently lengthy delay to warrant an inquiry into its reasonableness. Of the forty-four months, two months were waived by the accused, leaving forty-two months to be accounted for.

[9] Of the forty-two months’ delay, the trial judge held that only fifteen and a half months were the result of unjustified institutional delay; the remaining months were neutral. Fifteeen and a half months’ institutional delay is well within the guidelines set out in Morin of fourteen to eighteen months for a two-stage hearing. Therefore, the trial judge dismissed the application even though he found “reasonably high” inferred prejudice because of the delay, and some actual prejudice because of Whylie’s restrictive bail conditions, which included house arrest.

[10] I would interfere with the trial judge’s ruling because in my view he mischaracterized two components of the delay as neutral when they should have been characterized as either institutional delay or delay attributable to the Crown. One component related to an adjournment given because the first scheduled trial date had to yield to another more urgent matter; the second and more important component related to the adjournment granted to the Crown permitting Whylie to be tried together with Honigan. These two adjournments caused a total delay of eleven and three-quarter months. The trial judge held that this entire period was neutral in the s. 11(b) analysis. In my view, nine and three-quarter months of the eleven and three-quarter months were attributable either to institutional delay or to the actions of the Crown.

[11] Thus, on my assessment of the forty-four months’ delay from arrest to trial, twenty-five and a quarter months were unjustified. This is well outside the Morin guidelines for a two-stage hearing. The case itself was straightforward, apart from the Charter applications. For most of the period, Whylie insisted on his s. 11(b) right and made a sincere effort to obtain an early trial date. And I accept the trial judge’s findings of inferred and actual prejudice. In the light of these considerations, I have concluded that Whylie’s constitutional right to be tried within a reasonable time was infringed.

[12] I will now briefly discuss the two components of the delay that I say the trial judge mischaracterized.

1. Adjournment of the trial date from September 9, 2002 to January 27, 2003 (four and a half months)

[13] Whylie was committed for trial in early February 2002. A judicial pre-trial took place in April 2002. Following the pre-trial, the parties set a trial date of September 9, 2002. The trial was scheduled for seven days. When the parties appeared before Justice Hamilton in the Superior Court on Monday, September 9, they found out that a s. 11(b) application in another matter was to proceed ahead of their trial. The estimated time for this application was four days. Justice Hamilton suggested that he begin the Whylie trial immediately after the application concluded. This was a sensible suggestion. However, defence counsel refused to accede to it. He said simply that he had another matter scheduled for the following Friday, September 20, and that the Whylie trial would likely conflict with it. The Crown took no position.

[14] The parties then went to the practice court on Wednesday, September 11, and agreed on a new trial date, four and a half months later, on January 27, 2003. The trial judge characterized this period as “neutral” because in his view, “scheduling can never be a precise art or science.”

[15] In this court, neither side supported the trial judge’s characterization. Whylie contended that the entire four and a half months should be treated as institutional delay. He pointed out that by September 2002, he had already been in the system for nearly two years, and he ought not to have been subjected to a further delay of his trial.

[16] The Crown accepted that part of the four and a half months should be attributed to institutional delay, but contended that part of the period should be attributable to the actions of the accused. In her view, Whylie should have agreed to Hamilton J.’s suggestion to proceed after the other matter had been completed. The Crown pointed out that both the trial judge in the present case and defence counsel mistakenly believed that two weeks of court time had been set aside for the trial when in fact only seven days had been set aside. Of the four and a half months’ delay, the Crown submitted that two and a half months should be considered institutional delay, and two months should be attributable to Whylie’s actions.

[17] Although that division is perhaps arbitrary, I agree with the Crown’s submission. Certainly the “system” bears some responsibility for the delay. But I do not think that Whylie can escape all responsibility simply because his counsel had another “matter” ten days away. See R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 at 346 (Ont. C.A.), aff’d 1997 331 (SCC), [1997] 3 S.C.R. 700. The pending s. 11(b) application may not have taken four days. Even if it did, the Whylie trial may not have needed more than five days. And on the record before us, I have no idea whether defence counsel’s September 20 “matter” could have been handled by another lawyer in his firm. It seems to me that if Whylie was as intent on an early trial as he insisted he was, then he should have agreed to Hamilton J.’s suggestion. I should add, however, that on my review of all the transcripts of the various court appearances, this was the only time Whylie was not vigilant about his s. 11(b) right to a trial within a reasonable time.

[18] For this four and a half month adjournment, two months are attributable to Whylie, and two and a half months should be added to the total unjustified institutional delay.

2. Adjournment of trial date from January 27, 2003 to September 2, 2003 (seven and a quarter months)

[19] Whylie’s trial was adjourned again because the Crown took steps to have him tried together with Honigan and Honigan’s counsel was not available on January 27, 2003. The background to this second adjournment is as follows. Whylie and Honigan initially were to be tried together. On May 14, 2001, a preliminary hearing for the two accused was scheduled for February 6, 2002. However, in January 2002, Honigan asked for an adjournment of the February preliminary hearing date because his counsel would not be available. Whylie refused to waive his right to be tried within a reasonable time. The assigned Crown, believing that Honigan would elect to be tried in the Ontario Court of Justice, agreed to sever the trials of the two accused, thus allowing Whylie to go ahead with his scheduled preliminary hearing. His preliminary did go ahead as scheduled, and he was committed for trial in the Superior Court. Honigan did elect to be tried in the Ontario Court of Justice.

[20] However, Honigan later re-elected, had a preliminary hearing and was also committed for trial in the Superior Court. In October 2002, the Crown decided that Whylie and Honigan should be tried together, and brought an application to adjourn Whylie’s trial. By this time, Whylie had been in the “system” for over two years and his trial had already been adjourned once. At three separate court appearances in October and November 2002, Whylie asserted his s. 11(b) right and opposed any delay of his trial.

[21] Nonetheless, on discovering that Honigan’s counsel was not available on January 27, 2003, the Crown persisted in seeking an adjournment of Whylie’s trial date so the two could be tried together. Citing that it would be a waste of judicial resources to have two jury trials for Whylie and Honigan, the Crown stated, “we’ll take our chances,” on the delay a joint trial might cause. The Crown’s adjournment request was granted. A new trial date was set for September 2, 2003, amounting to a further delay of seven and a quarter months. Although the Crown and Whylie could have proceeded earlier, this date too was chosen to accommodate Honigan’s counsel.

[22] Even so, the trial did not go ahead in September 2, 2003. The Charter application was heard between late November 2003 and early December 2003. The trial then had to be adjourned a further four and a quarter months until April 19, 2004 because of late disclosure from the Crown. The trial judge properly attributed this delay to the actions of the Crown. Whylie then brought a s. 11(b) application and accepted responsibility for the further delay until that application was heard in June 2004.

[23] I do not consider that the characterization of the delay from September 2, 2003 to June 2004 to be in question on this appeal. What is in question is the characterization of the seven and a quarter months’ delay from January 27, 2003 to September 2, 2003. The trial judge characterized this period as neutral. He accepted the trial Crown’s position that two trials for two persons who were jointly charged would be a waste of the court’s resources. On appeal, the Crown supported the trial judge’s characterization.

[24] I respectfully disagree with the trial judge. In my view, the entire seven and a quarter months’ delay should be attributed to the actions of the Crown or to institutional delay. I agree with the submission of the Crown that ordinarily persons charged jointly with an offence should be tried together. A single trial for two or more accuseds generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once. Severance is rarely granted. Moreover, as the Crown pointed out, ordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(b) analysis. See R. v. Sapara, 2001 ABCA 59, [2001] A.J. No. 256 at paras. 57-58 (C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 237.

[25] However, this is not an ordinary case. Although Whylie and Honigan were jointly charged, early in the proceedings the Crown agreed to a severance. Pure happenstance, and nothing more, gave the Crown the opportunity to attempt to have the two accused tried together. Typically, a co-accused must meet a high threshold to obtain a severance. In this case, however, the Crown had already agreed to a severance, and, some ten months later, was trying to undo its previous decision. In this circumstance, it seems to me that the desirability of a joint trial had to yield to Whylie’s s. 11(b) right. See R. v. Heaslip (1983), 1983 3519 (ON CA), 9 C.C.C. (3d) 480 at 496 (Ont. C.A.). When the Crown took steps to have a joint trial, over two years had elapsed from the time Whylie had been charged. Compliance with the Morin guidelines was in jeopardy. Once the Crown recognized that it could not have a joint trial on January 27, 2003, or a date shortly after that, it should have allowed Whylie to be tried alone. Doing so would have been consistent with the Crown’s earlier decision to agree to a severance. Thus, I add a further seven and a quarter months of unjustified delay.

C. CONCLUSION

[26] On my analysis, the unacceptable delay is fifteen and a half months (as found by the trial judge) plus two and a half months (due to the first adjournment) plus seven and a quarter months (due to the second adjournment) for a total of twenty-five and a quarter months. This is well beyond the Morin guidelines of fourteen to eighteen months for a two-stage proceeding. This was not a complicated case. Whylie suffered both inferred and actual prejudice, although admittedly the latter is somewhat diminished by Whylie’s failure to seek a variation of his restrictive bail conditions. See R. v. Gairy, [2006] O.J. No. 429 at para. 24 (Sup. Ct. J.) and R. v. Satkunanthan (2000), 2001 24061 (ON CA), 152 C.C.C. (3d) 321 at para. 61 (Ont. C.A.). Although the charge against Whylie was serious, thus increasing society’s interest in a trial on the merits, the overall length of the unjustified delay for this case was just too long.

[27] Whylie’s s. 11(b) right to a trial within a reasonable time was therefore infringed. I would allow the appeal, set aside the conviction, and stay the proceedings under s. 24(1) of the Charter.

RELEASED: March 27, 2006

“J.I.L.”

Signed: “J.I. Laskin J.A.”

“I agree: Robert P. Armstrong J.A.”

“I agree: J.L. MacFarland J.A.”