R. v. Khan, 2011 ONCA 173

CITATION: R. v. Khan, 2011 ONCA 173

DATE: 20110303

DOCKET: C51454

COURT OF APPEAL FOR ONTARIO

Laskin, MacFarland and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kevin Khan

Respondent

Karen Papadopoulos, for the appellant

David Butt, for the respondent

Heard: October 21, 2010

On appeal against the stay of proceedings imposed by Justice Frances P. Kiteley of the Superior Court of Justice, dated November 25, 2009.

Karakatsanis J.A.:

[1] The Crown seeks to quash the stay ordered by the application judge on November 25, 2009, finding that the delay in hearing the case violated the accused’s right to a trial within a reasonable time, pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

[2] At issue in this appeal is the application of s. 11(b) of the Charter to an ultimately minor player in the context of a large, complex prosecution.

[3] The respondent surrendered to police in June 2006 following a large, complex gang investigation called Project XXX, which resulted in the arrest of more than a hundred individuals. During the preliminary inquiry, the Crown decided to drop the criminal organization charges and to proceed against the respondent alone on the trafficking and conspiracy to traffic charges. The respondent was committed for trial in February 2008. The first trial was declared a mistrial in March 2009, due to no fault of either party, and a new trial was scheduled for November 2009.

[4] The application judge framed the issue as whether it was acceptable for the respondent to be pulled along through the courts at the pace of the complex prosecutions of Project XXX. She found that the delay in the Ontario Court of Justice was attributable to the inherent time requirements of this complex case. The application judge also found that, on this record, it was reasonable for the Crown to make the decision to proceed alone against the respondent during the preliminary hearing. However, she found that after this became a relatively simple case, the Crown had an obligation to accelerate the trial in the Superior Court of Justice to recognize the delay that had occurred prior to committal. The application judge treated the entire time in the Superior Court of Justice as Crown or systemic delay. She found that the cumulative effect of 41 months in both courts was a violation of the respondent’s right to be tried within a reasonable time.

[5] The application judge correctly referred to the analytical framework set out by the Supreme Court of Canada in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. However, she erred in failing to characterize significant periods of delay in the Superior Court of Justice as neutral delay. These errors led the application judge to find that the respondent’s s.11(b) Charter right had been infringed. However, properly characterized, there was no unreasonable delay in this case.

[6] For the reasons that follow, I would allow the appeal, quash the stay and remit the matter back to the Superior Court of Justice for trial.

Background Facts

[7] The respondent was charged in May 2006 following a large, complex gang investigation entitled Project XXX. The respondent surrendered on June 15, 2006. He was charged with drug trafficking, conspiracy to traffic in cocaine at the kilogram level and participating in a criminal organization. The evidence against him arose from authorized wiretap recordings of telephone conversations between the respondent and two other alleged co-conspirators.

[8] There were numerous separate disclosure events throughout the fall and winter of 2006-2007, by which time the respondent had received the bulk of the evidence related to his charges. Additional disclosure events continued during the preliminary hearing and prior to trial. In total, fifty disclosure packages were delivered to the respondent.

[9] The preliminary hearing for the respondent’s group was set on February 2, 2007 for October 22, 2007.

[10] The two other alleged co-conspirators in the trafficking charges entered guilty pleas in April and June of 2007.

[11] By July 12, 2007, so many accused had been removed from the prosecution that the Crown laid a new information combining some of the prior groups. The respondent was charged alone in the conspiracy charges and he was jointly charged with 12 other accused for participating in the activities of a criminal organization.

[12] The preliminary inquiry began on October 22, 2007 in the Ontario Court of Justice, with evidence specifically relating to the respondent commencing November 19, 2007. On November 20, 2007, counsel filed a Statement of Agreed Facts and advised that the Crown would not proceed with the criminal organization charges against the respondent. At the request of defence counsel, the respondent’s committal for trial was deferred to February 6, 2008.

[13] On February 6, 2008, the Crown formally withdrew the criminal organization charge and the respondent was committed for trial on the remaining two counts. A new indictment dated February 15, 2008, severed the respondent from the other accused in Project XXX.

[14] The respondent appeared in the Superior Court of Justice, along with the other accused from Project XXX, on March 19, 2008 and he was remanded to May 12, 2008. At that appearance, the defence indicated there would be no Garofoli application challenging the wiretap authorization. The respondent was remanded to the larger group pre-trial on June 5, 2008 and an individual pre-trial for June 17, 2008. The respondent failed to appear on June 17 but appeared on June 26, at which time the trial date was scheduled to commence on March 23, 2009 for three weeks. The defence was unavailable for a trial date that was offered for three weeks earlier.

[15] On March 23, 2009, no trial judge was available due to a conflict and Crown counsel was ill. The case was adjourned on consent for two days, to March 25. On that day, the trial commenced and the Crown filed an Agreed Statement of Facts in an effort to expedite the proceedings. After one day of evidence, the trial judge declared a mistrial. Neither party was responsible for the mistrial.

[16] Although dates for the retrial were available as early as mid-June 2009, the defence declined on the basis that it wished to order transcripts to support an 11(b) Charter application. Defence counsel was unavailable for trial dates offered in late June and late August 2009. The re-trial was scheduled for November 23, 2009, the first date for which defence counsel was available for a two-week trial.

[17] The respondent filed his 11(b) application in October 2009. The application judge found that the respondent’s s. 11(b) rights had been violated and stayed the proceedings on November 25, 2009.

Analysis

[18] The standard of review for the application of the Morin factors and the characterization and allocation of various periods of time in an 11(b) analysis is correctness. However, underlying findings of fact are reviewed upon a standard of palpable and overriding error: see R. v. Schertzer (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 (Ont. C.A.), at para. 71.

[19] Section 11(b) of the Charter aims to protect both the individual rights of the accused – the right to security of person, the right to liberty and the right to a fair trial – and the collective rights of society to have criminal charges dealt with on the merits: Morin, at pp. 786-87.

[20] Whether the delay is unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18.

[21] Morin requires the court to characterize the reasons for the delay, including a) inherent time requirements, b) actions of the accused, c) actions of the Crown, d) limits on institutional resources, and e) any other reasons for delay. Mathematical or formulaic approaches to s. 11(b) are to be avoided. However, an effective, holistic, and qualitative assessment of the total period of delay and the reasons for the delay requires an evaluation of the various segments of time within this period: see Godin, at para. 18, citing Sopinka J. in Morin, at p. 787.

[22] The Supreme Court of Canada in Morin offered guidelines to assist the courts in assessing reasonable systemic delay. The court suggested a guideline of eight to ten months as acceptable institutional delay in the provincial courts and a guideline of six to eight months as acceptable institutional delay in the superior courts, for a total guideline period of 14 to 18 months. These are guidelines, not limitation periods, and they will yield to other factors. The reasonableness of the delay will also depend on the degree of prejudice to the accused.

[23] Clearly, the overall delay of 41 months to trial in this case is sufficient to raise the issue of reasonableness and to warrant an inquiry into the reasons for the delay and any prejudice that arose as a result. Accordingly, it was incumbent upon the application judge to examine the reasons for the delay.

[24] In this case, the application judge failed to identify a neutral intake period in the Superior Court of Justice and to properly allocate the reason for the delay following the mistrial.

[25] As a result, it is necessary to characterize and analyze the various periods of delay in this case. I set out below my conclusions relating to the reasons for the delay in the provincial court and in the Superior Court of Justice.

Reasons for the Delay – Ontario Court of Justice

[26] The application judge found that the entire 20 months in the Ontario Court of Justice was acceptable delay due to the inherent requirements of a complex mega prosecution. She did not find that the Crown was unreasonable in failing to sever the accused from the larger prosecution until the preliminary inquiry held on November 20, 2007.

(i) Conduct of the Crown

[27] The application judge noted that inherent time requirements depend upon the complexity of the case. She assessed the time spent in the Ontario Court of Justice on a global basis, addressing the respondent’s key submissions that the Crown’s failure to assess the strength of the evidence against him and to sever him from the larger prosecution at an earlier stage, meant that the respondent unnecessarily endured the lengthy intake and inherent delays of a complex case that was not his.

[28] In particular, the respondent submitted on the application, and on appeal, that the case against him was not complex, that the Crown had an obligation to conduct comprehensive post-charge screening, and that the Crown was responsible for the delay by failing to scrutinize the evidence against him many months earlier, particularly after the charges against his co-accused were resolved. He argues that if the Crown had done so, it would have withdrawn the criminal organization charges and proceeded solely against the respondent at a much earlier time, instead of pulling him along through the courts at the pace of the larger prosecution.

[29] However, the application judge did not accept the factual premise of that submission. She noted that, in theory, the decision to withdraw the criminal organization charges could have been made earlier had the Crown more critically analyzed the strength of the evidence against the respondent. However, she found that on this record it was reasonable for the Crown to make the decision to proceed alone against the respondent when it did so during the preliminary inquiry. She found that the time to committal was reasonable.

[30] The respondent submits that while large, complex prosecutions may be a necessary response to the increasing sophistication of organized criminal activity, they place serious responsibilities on the Crown to ensure that accused’s Charter rights are respected. I agree with counsel for the respondent that these mega-project prosecutions require the Crown to diligently and critically assess the evidence to determine whether an accused whose involvement is minor, discrete or disconnected from the larger prosecution can be tried separately and more quickly. However, the court should be hesitant to second-guess the Crown’s decisions on how to proceed and whether and when to withdraw charges, particularly in complex prosecutions where decisions are contingent upon interdependent circumstances.

[31] I find no reason to disturb the application judge’s factual assessment that the Crown was not responsible for delay in the provincial court on this record.

(ii) Intake period: June 15, 2006 to February 2, 2007 (7 months, 18 days)

[32] There are inherent intake requirements for the preparation of a case for trial, including bail hearings and disclosure. A more complex case and more extensive requirements will serve to excuse longer periods of delay. The intake period ends when both parties are ready for trial and the court cannot accommodate them. In this case, the respondent surrendered to police on June 15, 2006 and the preliminary inquiry date was scheduled on February 2, 2007.

[33] It is clear that this began as an extremely complex case, involving an extensive police investigation, numerous co-accused, wiretap evidence and criminal organization charges. Given the complexity of the case and the number of accused and charges laid, the intake period required before the parties were in a position to schedule a date for the preliminary hearing was justifiably longer. I agree with the Crown’s submission that the period of 7 months, 18 days between the date the respondent surrendered to the police and the day on which the preliminary inquiry was scheduled, was a neutral intake period.

(iii) Inherent: February 2, 2007 to July 12, 2007 (5 months, 10 days)

[34] Obviously, the parties were not ready to proceed with a preliminary inquiry when the date was first set. The bulk of the disclosure was complete in June 2007. The guilty pleas of the co-conspirators occurred in April and June of 2007 and the Crown reorganized the remaining accused and laid a new consolidated Information against the respondent and 13 other accused on July 12, 2007. I would therefore agree with the Crown’s submission that the five months, ten days from the date the preliminary inquiry was first scheduled to the laying of the new Information, was due to the inherent time requirements of the case.

(iv) Institutional: July 12, 2007 to October 22, 2007 (3 months, 10 days)

[35] It is not clear on the record when the parties were fully prepared to proceed with the preliminary hearing and if the commencement of the preliminary hearing was delayed due to lack of institutional resources. Some of the period leading up to the preliminary hearing after July 12, 2007, would likely be attributable to institutional delay. Although the record does not specifically address this issue, the Crown concedes that the period between July 12, 2007 and the commencement of the preliminary hearing on October 22, 2007 was institutional delay.

[36] The application judge found that the delay in the Ontario Court of Justice was due to the inherent time requirements of a complex prosecution. However, given the Crown’s concession in favour of the respondent, I would allocate institutional delay of three months, ten days in the provincial court.

(v) Inherent: October 22, 2007 to February 6, 2008 (3 months, 15 days)

[37] There is no dispute that the preliminary hearing and the respondent’s committal for trial were due to the inherent requirements of the case.

(vi) Summary: Ontario Court of Justice

[38] The respondent spent almost 20 months in the provincial court from the date of his surrender to the date of his committal for trial. The various time periods are summarized as follows:

June 15, 2006 to February 2, 2007: Intake period: 7 months, 18 days

February 2, 2007 to July 12, 2007: Inherent: 5 months, 10 days

July 12, 2007 to October 22, 2007: Institutional: 3 months, 10 days

October 22, 2007 to February 6, 2008: Inherent: 3 months, 15 days

[39] Thus, 16.5 months of the delay in the Ontario Court of Justice was neutral, due to the intake period and the inherent requirements of the case. While this is a lengthy period of time, both the intake period and the inherent requirements of a complex, multi-accused prosecution are justifiably longer.

[40] The application judge accepted that on this record, the respondent was justifiably tied to this complex prosecution and that the time to committal was reasonable. In other words, until committal, it was reasonable that this case travel at the much slower pace of the complex mega prosecution.

[41] I agree. The institutional delay of three months, ten days, is below the range of the Morin guidelines for the provincial court.

Transition - Intake: February 6, 2008 to March 19, 2008 (1 month, 13 days)

[42] The application judge treated the period of transition from the Ontario Court of Justice to the Superior Court of Justice, as neutral. I agree and would characterize this period as part of the neutral intake process in the Superior Court of Justice (see Schertzer, at para. 96).

Reasons for the Delay – Superior Court of Justice

[43] The application judge addressed a number of concerns about how matters proceeded after the Crown appropriately made the decision that the respondent’s case should be severed and progress ahead of the group trial. Ultimately, she treated the entire time in the Superior Court of Justice as institutional or Crown delay. In my view, it is appropriate to deduct neutral time periods for intake or for the delay caused by the mistrial. The relevant time periods are set out and analyzed below.

(i) Intake: March 19, 2008 to June 17, 2008 (2 months, 29 days)

[44] The respondent continued to be scheduled along with the larger group prosecution for his first two appearances in the Superior Court of Justice. At the respondent’s first appearance on March 19, 2008, he was remanded without comment to May 12, 2008. On that date, the respondent indicated that he would not be bringing a Garofoli application to challenge the wiretap authorization. He was remanded to a group judicial pre-trial scheduled for June 5, 2008 and an individual pre-trial for June 17, 2008, at which time the parties were ready to set a date for trial.

[45] The application judge measured the time to trial in the Superior Court starting from the first appearance in the court on March 19, 2008, and not from the conclusion of the judicial pre-trial held on June 26, 2008. She noted that the Crown took the position that the first trial date was set eight months after the set date on June 26, 2008, and that eight months was within the normal accepted range for trial dates in the Toronto region. However, at para. 39, she concluded:

While one cannot expect a trial date to be set on the first appearance because a Judicial Pre-Trial is required, the time it takes from arrival in the Superior Court to the trial date is what is important, not the time from the conclusion of the Judicial Pre-trial (in this case June 17, 2008) to the trial date. It would be ironic if the time involved in holding a Judicial Pre-Trial (a procedural step designed to identify issues and shorten the trial) served to extend the time within which an accused is entitled to a trial date.

[46] As noted in Morin at p. 793, where a preliminary hearing is required, there will be additional intake periods with further pre-trial meetings and added court dates. An additional period for inherent time requirements must be allowed for at this second stage.

[47] The Crown submits that an intake period of almost 3 months was required from the first appearance in the Superior Court of Justice to the judicial pre-trial and set date scheduled for June 17, 2008.

[48] The respondent takes the position that the application judge was justified in excluding the intake period in her tally of “toxic delay” because the respondent was unnecessarily required to endure the extended Superior Court intake period for the much slower mega-project prosecution. He submits that he was unnecessarily remanded before a trial date was set. Thus, he argues, the adjournments should not be treated as neutral.

[49] In R. v. Topol (2008), 2008 ONCA 113, 236 O.A.C. 1 (C.A.), the accused was charged along with three others in a complex fraud case. The Crown consistently consented to adjournments to delay in setting a trial date in order to accommodate the schedules of counsel for the co-accused. This court upheld the application judge’s decision not to consider the delay caused by the adjournments as neutral, noting that as the time period lengthened, the Crown had to decide between refusing to accommodate the other counsel or proceeding with the appellant separately from the other accused: Topol, at para. 13.

[50] In R. v. Whylie (2006), 2006 CanLII 9037 (ON CA), 208 O.A.C. 247, this court held that the seven and a quarter month delay caused by the Crown adjournment of the trial date, so that the accused could be tried together with another accused, was not neutral given that the Crown had previously agreed to a severance of the accused’s trial. The accused objected to the adjournment and asserted his s. 11(b) right at three separate court appearances.

[51] These cases can be distinguished. In this case, there was no unjustifiable delay in setting a trial date. The respondent was remanded once, on his first appearance, without comment. A pre-trial was set on the second appearance and the parties were in a position to set a trial date the month following. The Crown had proposed to consolidate any Garofoli challenges to avoid wasted resources and inconsistent decisions. The Crown did not seek to delay the setting of a trial date in order to try the accused with the larger prosecution. The respondent did not object to any remand or return dates.

[52] A trial date could not be set until the defence indicated whether it would challenge the wiretap authorization. The application judge noted that the respondent could not be expected to take a position with respect to any Garofoli challenge one way or the other until he arrived in the Superior Court. Given the inherent nature of this case, it was reasonable that the respondent consider its position on the wiretap authorization. It was also reasonable that the respondent be remanded from March 19, 2008 to May 12, 2008, with the larger group, until his position with respect to the wiretap authorizations was clear. Thus, I do not find that the Crown was responsible for any delay in this period. It was part of the inherent requirements of the intake period in this case.

[53] In this case, the respondent consented to the pre-trial dates and there was no indication of any delay in obtaining available dates for a pre-trial. The pre-trial in this case was part of the intake process. A judicial pre-trial is designed to streamline the issues if possible, to identify an accurate estimate of the required trial time, and to help ensure a fair and efficient trial. While a pre-trial may add several weeks to a neutral intake period in a particular case, it may well result in an earlier trial date or a shorter trial.

[54] It may be that an individual pre-trial could have been scheduled a couple of weeks earlier. However, defence counsel agreed with the presiding judge’s suggestion that an individual pre-trial be scheduled at the large group pre-trial on June 5, 2008.

[55] This matter was not ready to proceed separately for trial until the issue of whether the wiretap authorization would be challenged was finally resolved and a judicial pre-trial was held. Thus, I would characterize the time period leading up to the scheduled pre-trial and set date as neutral delay attributable to the intake and the inherent requirements of the case.

(ii) June 17, 2008 to March 23, 2009: (1 month, conduct of defence; 8 months, institutional delay)

[56] There is no dispute about this time period. The parties agree that approximately one month of this time period was attributable to the conduct of the defence. The accused failed to attend at his scheduled individual pre-trial on June 17, 2008, which had to be re-scheduled to June 26, 2008. As well, the defence was offered the earliest trial date of March 2, 2009, but was unavailable until March 23, 2009.

[57] The remainder of the period of just over eight months, from the set date on June 26, 2008 until the first available trial date on March 2, 2009, was institutional delay.

(iii) March 26, 2009 to November 23, 2009: Mistrial to Re-trial Date

[58] The mistrial was declared on March 26, 2009. Neither party was responsible. The trial judge at that time was presiding in another unrelated matter in which the leading case relied upon by defence counsel was a decision involving former drug charges against the respondent. Both counsel were concerned that there could be a reasonable apprehension of bias and made a joint submission for a mistrial.

[59] At this point, the defence raised for the first time a concern about delay and advised that it was considering a Charter application based upon unreasonable delay. The Crown agreed to remove the bail curfew restrictions in order to reduce prejudice to the respondent. At the request of the defence, the matter was put over to April 1, 2009 to set a new trial date.

[60] On April 1, 2009, the court was told that dates starting mid-June 2009 would be available but counsel expressed concern that transcripts would not be ready for the accused’s s. 11(b) application. The defence acknowledged that it was offered trial dates in late June and in late August. The Crown confirmed that the witnesses were available. However, defence counsel advised that he would not be available for the June or August dates because of their proximity to the long weekends and that his first availability thereafter for a two-week trial was November 23, 2009.

[61] The Crown submits that the application judge erred in failing to attribute the first three months following the mistrial as inherent delay and the following five months as attributable to the defence. Alternatively, the Crown submits that the entire period was neutral due to the inherent requirements of the case.

[62] The respondent submits that the court was right to disregard the June dates because of the unavailability of the transcripts for the s. 11(b) application and that the defence is not responsible for delay merely because counsel is not available for the first offered date in a rescheduled case. Given the respondent’s numerous appearances over 35 months before the first trial date, the respondent argues that the application judge was right not to attribute post-mistrial delay to defence.

(a) March 26, 2009 to June 23, 2009: Inherent (3 months)

[63] This court has held that where a mistrial results from unforeseeable events not attributable to the Crown, the resulting delay should be treated as neutral: R. v. J.J. (2008), 2008 ONCA 133, 233 O.A.C. 317, at para. 3; R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, at para. 61; and R. v. Pizzardi (1994), 72 O.A.C. 241, at paras. 5-6. Such unfortunate events necessarily increase the inherent time requirements of the case. The sole purpose of the mistrial in this case was to preserve the appearance of fairness and impartiality. Thus, at a minimum, the three month period that followed the mistrial until the first date offered for re-trial in June, 2009 should have been treated as neutral for purposes of the s. 11(b) analysis.

[64] The court was told that dates starting in mid-June would be available but that there was concern that transcripts would not be ready for the accused’s s. 11(b) application. In my view, the defence was entitled to bring the Charter application and to seek sufficient time to permit the production of transcripts. However, the defence cannot thereby seek to make the Crown responsible for the resulting delay. A reasonable period of time to obtain the transcripts is inherent to the case and therefore neutral. There is no suggestion on this record that there was any defence delay or systemic delay in obtaining the transcripts. I attribute this time period to the first available trial date to the inherent time requirements of the case.

(b) June 23, 2009 to November 23, 2009: Neutral (5 months)

[65] The application judge considered this time period under the heading “Waiver”. I agree with her conclusion that the delay after the mistrial was not “waived” by the defence.

[66] There was nothing about the conduct of the defence that implied an intention to waive his Charter protection. Indeed, the defence raised the issue of a s. 11(b) application at the mistrial and refused mid-June dates because transcripts would not be ready. While there was no defence waiver following the mistrial, the conduct of the defence should nonetheless be considered in determining the reasons for delay.

[67] The application judge did not feel based upon her experience in Practice Court that the presiding judge would necessarily have set a trial date for either of the proposed dates in late June or August. Further, she noted that defence counsel, having made himself available for the first trial date, could not be expected to make himself available instantly. In my view, these reasons do not justify treating this period as systemic or Crown delay.

[68] While a judge’s experience in court procedures may be helpful to the s. 11(b) analysis, the court must be careful not to engage in speculation as to the system’s ability to accommodate the trial or the priority assigned to the particular case; R. v. Hussey (2008), 2008 ONCA 86, 233 O.A.C. 157 (C.A.), at paras. 4-6. Further, it is important that the parties be advised of the judge’s view so that they have an opportunity to address the factual foundation in the application. In this case, there was no discussion on the record that the court could not accommodate the dates offered and there was no evidence that the practice court judge would have necessarily refused to set a trial date for late June or late August in these circumstances.

[69] I agree with the application judge that defence counsel cannot be faulted for not being available on the first available trial date. In Godin, the Supreme Court of Canada stated at para. 23: “Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.” The court agreed that, in circumstances where the Crown was responsible for the case having to be re-scheduled, it was not reasonable to hold that the delay clock stops as soon as a single available date is offered to the defence and is not accepted. The court noted at para. 5 that the case was straightforward; virtually all of the delay was attributable to the Crown and was unexplained; and the defence had attempted unsuccessfully to move the case ahead faster.

[70] However, the circumstances in this case are very different from those in Godin. In this case, the Crown was not responsible for the mistrial and therefore was not responsible for the delay resulting from the need to re-schedule the trial date. No periods of delay were attributable to the conduct of the Crown. Furthermore, although the application judge found that this was not a case where the defence was impeding the trial’s progress, the defence appeared to be content with the pace of this litigation until the mistrial was declared. Finally, it is clear that the Crown, mindful of the issue of delay, made every effort to find an early trial date and advised that the Crown witnesses were available at any time.

[71] While there are special scheduling challenges for counsel when a matter is rescheduled, it is wrong to attribute delay to the system when, in fact, the system could have accommodated an expeditious trial: J.J., at para. 3. In this case, the mis-trial was the fault of neither party and resulted in some inherent neutral delay. Although, defence counsel’s first available date for trial appears to have been almost eight months after the mis-trial, it is not necessary to determine whether some part of that delay is attributable to the defence rather than to the inherent requirements of the case. In the circumstances of this case, the time between the first available date and the retrial date is neutral. As a result, I conclude that the application judge erred in treating the period after the mistrial as Crown or systemic delay.

(iv) Conduct of the Crown

[72] The application judge appears to have considered the Crown responsible for the entire time period in the Superior Court of Justice. She held at para. 41 that having regard for the overall period of 41 months to trial, the Crown had an obligation to attempt to accelerate the trial to recognize the delay that had occurred prior to committal due to the inherent time requirements of the case.

[73] There is no reason to attribute the delay in the Superior Court of Justice to the conduct of the Crown. Intake requirements are inherent requirements in trying a case in the Superior Court of Justice. The Crown did not delay the setting of a trial date. The Crown was in no way responsible for the mistrial and made every effort to offer early dates for the re-trial. Once the respondent’s case was properly severed from the rest of the mega-prosecution, the Crown acted diligently and appropriately in the circumstances. I do not agree that the Crown failed to respect the respondent’s right to trial within a reasonable time.

Summary: Superior Court of Justice

[74] The respondent spent almost one and a half months in transition between the courts and approximately 20 months in the Superior Court of Justice. The various time periods are summarized as follows:

February 6, 2008 to March 19, 2008: Transition - Intake: 1 month, 13 days

March 19, 2008 to June 17, 2008: Intake: 2 months, 29 days

June 17, 2008 to March 23, 2009: Conduct of defence – 1 month; institutional delay – 8 months

March 26, 2009 to June 23, 2009: Inherent: -3 months

June 23, 2009 to November 23, 2009: Neutral: 5 months

[75] In total, the respondent spent approximately 21.5 months in the Superior Court of Justice, including the transition intake period between the two courts. Of this total approximately eight months is attributable to institutional delay.

Prejudice

[76] The application judge’s findings on prejudice were not challenged on appeal.

[77] The application judge found that the total delay, together with the pre-trial bail restrictions in place, had impacted the respondent’s business, his mental state and his relationship with his children. She found that the respondent suffered prejudice to his professional and personal life as a result of the onerous terms from June 2006 to February 2007 and then more liberal but still challenging terms from February 2007 to March 2009. She made no finding of prejudice during the period of time between the mistrial and the second trial date. She was satisfied that the respondent experienced the sort of prejudice that is a prerequisite to obtaining a remedy for the violation of his rights.

Assessment of the reasonableness of the delay

[78] The second trial date was scheduled to occur approximately 41 months after the respondent surrendered to police in June 2006. He was under house arrest for the first eight months and under curfew from February 2007 until the mistrial in March 2009. He suffered real prejudice in his personal and professional life as a result of the bail restrictions. However, there was no indication that the respondent’s right to a fair trial was prejudiced.

[79] The initial complexity of this case justified lengthy periods of neutral delay based upon the inherent requirements of a mega prosecution. Until the respondent’s committal to trial, he was reasonably tied to the larger complex prosecution that included criminal organization charges. Further, it was reasonable that the respondent be scheduled along with the larger group prosecution for his first two appearances in the Superior Court of Justice until it was clear in May 2008 that there would be no challenge to the wiretap authorization. Until the first trial date was set, two years after he surrendered to police, the respondent had suffered at most three months, ten days of systemic delay, which is well within the range of the Morin guidelines for the provincial court. The balance of the time spent in the Ontario Court of Justice was due to the inherent requirements of a complex multi-party prosecution dealing with wiretap evidence and criminal organizations.

[80] This became a simple two-week case in May 2008, after the respondent arrived in the Superior Court and once it was clear that there would be no Garofoli challenge to the wiretap authorizations. The institutional delay experienced in the Superior Court until the first trial date was approximately eight months, which is at the top end of the Morin guideline.

[81] Unfortunately, through no fault of either party, a mistrial was declared in March 2006. The defence did not complain about delay until the mistrial. Further, the eight month delay following the mistrial is not attributable to the Crown or to the system. Finally, there was no prejudice created by the bail terms during this latter period.

[82] Although 41 months before the courts is a lengthy period of time, the delay was primarily due to the initial complexity of this prosecution and the subsequent mistrial. None of the delay in this case was caused by the Crown. Large group prosecutions play an important role in the administration of justice. Not only do they conserve judicial resources, but there is also a societal interest in having these cases decided on their merits.

[83] Viewed cumulatively, the institutional delay of 11.5 months is less than the overall Morin guideline of 14 to 18 months for a two-stage process. Properly characterized, there was no unreasonable delay in this case.

Conclusion

[84] I would allow the appeal, quash the stay and remit the matter to the Superior Court of Justice for re-trial.

RELEASED: March 3, 2011 “JL”

“Karakatsanis J.A.”

“I agree John Laskin J.A.”

“I agree J. MacFarland J.A.”