COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wong, 2012 ONCA 286

DATE: 20120502

DOCKET: C51972

Rosenberg, Armstrong and Juriansz JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Kerry Wong

Appellant

Mark C. Halfyard, for the appellant

John McInnes, for the respondent

Heard: March 23, 2012

On appeal from the conviction entered by Justice Gary Trotter of the Superior Court of Justice, sitting without a jury, on January 22, 2010, with reasons reported at 2010 ONSC 2059, 208 C.R.R. (2d) 251.

ENDORSEMENT

[1] We agree with Trotter J. that the application for a stay of proceedings for unreasonable delay was properly dismissed. Counsel for the appellant focused his argument on two time periods that comprised a delay of approximately six months, both falling within the time from the commencement of the preliminary inquiry to the order to stand trial: (1) the period from September 30, 2008 to February 9, 2009, a delay that occurred because the preliminary inquiry could not be completed within the original two days set aside; and (2) the period from February 9, 2009 to March 25, 2009, a delay that occurred while the preliminary inquiry judge reserved her decision.

[2] The trial judge classified the entire two periods of delay as neutral. The appellant submits that all or some of the delay should be classified as institutional delay and, if so classified, that the delay to trial would be unreasonable, particularly given the inferred and actual prejudice. We agree with the trial judge’s assessment of these time periods. As to the first period, his finding of fact that the preliminary inquiry could not have been finished within the original two-day allotment of time is fatal to the appellant’s submission. The fact that the parties were only able to use less than one and a half days of this time, because of other matters in the court, thus was of no consequence. The record shows that efforts were made to find the earliest possible dates to continue the preliminary inquiry. The court and the Crown did not treat this as business as usual but were obviously conscious of the delay. We agree with the trial judge that this court’s decision in R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.) applies in the circumstances.

[3] As to the second period, the appellant does not criticize the time taken by the preliminary inquiry judge to reach her decision. Rather, he submits that the delay was a consequence of lack of sufficient judicial resources, which meant that the judge had to deal with other cases before she could deal with the appellant’s case. Again, we agree with the trial judge that the time taken by the preliminary inquiry judge was completely reasonable given the complex issues raised by the case.

[4] The appellant also submits that the trial judge erred in his assessment of prejudice. The assessment of actual prejudice depended upon findings of fact by the trial judge. In our view, those findings are well grounded in the record. It was not the case that the trial judge required the appellant to corroborate his claims of prejudice. Rather, the trial judge was simply not satisfied with the quality of the evidence presented. That was a matter for him to determine and it was open to him to find that the prejudice experienced by the appellant as a result of the delay in the case was not significant. As the trial judge noted, much of the prejudice resulted not from the delay but from the fact of the charges being laid.

[5] In the result, the appeal is dismissed. We cannot leave this case without noting one troubling aspect of this case, however. As we have said, the focus of the appellant’s complaints were around the delay after the preliminary inquiry could not be completed within the original time allotment. However, it was the fact that those original dates were set almost a year after the parties were ready to set a date for the preliminary inquiry that put this case in jeopardy. It was this very limited capacity in the Ontario Court of Justice to accommodate a two-day preliminary inquiry that posed the greatest challenge to the system. And it was only because the overall delay in both the Ontario Court and the Superior Court of Justice was not unreasonable that this case was not stayed. It is troubling that 30 years after proclamation of the right to a speedy trial, that right remains precarious in some jurisdictions.

[6] Accordingly, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“Robert P. Armstrong J.A.”

“R. Juriansz J.A.”