Court of Appeal for Ontario

Citation: R. v. Hussey, 2008 ONCA 86

Date: 20080212

Docket: C46410

Doherty, Borins and Lang JJ.A.

Between:

Her Majesty the Queen Appellant

and

Kirt Hussey Respondent

Counsel: Alexander Hrybinsky for the appellant Paul Calarco for the respondent

Heard and orally released: February 5, 2008

On appeal from the stay of proceedings imposed by Justice Matlow of the Superior Court on November 20, 2006.

Endorsement

[1] The appellant was charged on September 2004 with sexual assault and released on a promise to appear. He was committed for trial in the Superior Court in September 2005 after a preliminary inquiry. A trial date of March 13, 2006 was fixed in November 2005. The trial was scheduled for five days. On the scheduled trial date, no trial court was available and the appellant’s trial could not proceed. The trial was adjourned to November 20, 2006.

[2] Defence counsel did not oppose the adjournment. He did, however, make it clear that he was preserving his client’s rights under s. 11(b) of the Charter. The proceedings in March were brief and there is no indication whether the dates in November referred to by Crown counsel were the first dates available for trial. There is also no indication as to whether either counsel requested an earlier date from the trial coordinator. The presiding judge did not comment on the length of the adjournment.

[3] On November 20, 2006, the case came on for trial before the same judge who had adjourned it on March 13, 2006. That judge concluded that there had been a violation of s. 11(b) of the Charter and stayed the sexual assault charge. The Crown appeals from that order.

[4] We are satisfied, based on the Crown’s submissions, that the trial judge failed to engage in the s. 11(b) analysis mandated in R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.). In his reasons, the trial judge fixed almost exclusively on the adjournment in March 2006. That adjournment resulted in an eight month institutional delay. The trial judge stressed the failure to give this case any priority when the trial had to be rescheduled. He referred to the absence of any administrative scheme to prioritize cases that were not reached on the first trial date. There was in fact no evidence as to what administrative system, if any, was in place to address questions of priority when trials were rescheduled. The trial judge was also critical of the Crown and the administrative staff’s failure to give effect to observations he had made in a case several years earlier. That case addressed delay occasioned by the need to reschedule a trial.

[5] The trial judge’s comments about the need to give priority to cases that are not reached on the first trial date have merit. All parties in the process, including the judge who is asked to grant the adjournment, should be alive to possible delay issues when a case is not reached on the scheduled trial date. We note, however, that the trial judge proceeded on the basis of certain assumptions as to how this case came to be adjourned to November. There was nothing on the record to indicate what steps, if any, were taken to prioritize this matter in March or whether anyone had requested that any such priority be given to the case. No one, including this judge who granted the adjournment, turned their mind to the questions that should be addressed when a trial has to be rescheduled.

[6] Reading the reasons as a whole, we are satisfied that the trial judge effectively granted a stay because he was not satisfied with the Crown’s approach to the adjournment request in March 2006. In doing so, the trial judge failed to give any weight to considerations that are important in the s. 11(b) analysis. These are first, the societal interest in a trial on the merits. That interest is particularly significant where, as here, an accused is charged with a very serious offence. Second, the trial judge failed to consider the absence of any prejudice caused by the delay to the respondent’s fair trial right and the minimal prejudice caused to his liberty interest by the terms of his bail.

[7] As the trial judge failed to conduct the Morin analysis, we do so and conclude as follows:

• the total passage of time from the laying of the charge to the trial date, twenty-six months, is sufficiently long to trigger a consideration of all of the s. 11(b) factors;

• institutional delay accounts for about five and a half months in the Ontario Court of Justice and about twelve months in the Superior Court for a total of just under eighteen months of institutional delay; and

• the other delays are delays inherent in the case (e.g. intake periods) and one adjournment of some two months during the preliminary inquiry that was mutually agreed on by counsel. These delays in total account for eight months.

[8] Having regard to the administrative guidelines outlined in Morin for institutional delay, this case is on the borderline of unreasonable delay. Where cases are approaching or are at the unreasonable delay limit, it is important that trial judges balance the factors that the trial judge ignored in this case.

[9] The allegation was a very serious one and the public had a keen interest in a trial on the merits. This public interest should have been explicitly taken into account by the trial judge.

[10] While the accused suffered the same prejudice that all accused suffer when their case progresses slowly through the system, the appellant suffered no additional prejudice as a result of the delay.

[11] Having regard to the absence of any prejudice, beyond that experienced by all accused, and the important public interest in a trial on the merits, we hold that the delay in this case, while far from ideal, was not unconstitutional.

[12] The appeal is allowed, the stay entered by the trial judge is vacated, and the matter is remitted to the Superior Court for a trial.

"Doherty J.A."

"S. Borins J.A."

"S. Lang J.A."