Court of Appeal for Ontario

Citation: R. v. Stephen, 2012 ONCA 411

Date: 20120615

Docket: C52970

MacPherson, Armstrong and Pepall JJ.A.

Between

Her Majesty the Queen

Appellant

and

Richard Stephen

Respondent

Counsel:

James K. Stewart, for the appellant

Lois I. Pineau, for the respondent

Heard and released orally: June 14, 2012

On appeal from the order of Justice Janet Wilson of the Superior Court of Justice, dated November 22, 2010, granting a stay of the criminal proceedings against the respondent.

ENDORSEMENT

[1] This is a Crown appeal from the order of J. Wilson J. in which she granted a stay of the criminal proceedings against the respondent for breach of his right to be tried within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms. The order stayed proceedings in the Superior Court on two counts of armed robbery and two counts of robbery while armed with an imitation firearm.

[2] The respondent was originally charged with two counts of armed robbery on June 15, 2006. This case was not complex. He first appeared in provincial court in Scarborough on June 16, 2006. It took 52-1/2 months to bring him to trial. Most of the time was taken up in the Ontario Court of Justice. From the date of his first appearance in the provincial court to his committal for trial on March 13, 2009 some 33 months had elapsed.

[3] The time taken in the Superior Court is not an issue. However, the delays in the provincial court are unacceptable and offended the guidelines in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. The appellant conceded that there were 19 months and 16 days of institutional delay and the respondent submitted that there were between 21 and 24 months of institutional delay.

[4] Counsel for the Crown has raised a number of issues concerning the application judge’s analysis of the reasons for delay and her finding that the respondent suffered actual prejudice.

[5] The Crown’s main argument is that the trial judge erred in her conclusion that the Crown Attorney should have been more proactive in dealing with the dilatory conduct of defence counsel.

[6] The respondent was represented by two different counsel whom he discharged at various stages of the proceedings. He subsequently acted for himself until the argument of the s. 11(b) motion when he had the assistance of amicus curiae. There is little doubt that both defence counsel, particularly the first defence counsel, contributed to a significant part of the delay by reason of their failure to move the case ahead on a number of occasions. The first counsel failed to appear in court several times, resulting in the case being adjourned. A fair reading of the record indicates that on many occasions the Crown Attorney in the provincial court was completely frustrated by the lack of progress in this case and the delays resulting from the inattentiveness of defence counsel.

[7] The application judge attributed some of the responsibility for defence counsel’s delay to the failure of the Crown to take a more aggressive stance to move the case forward. While we agree that the ultimate responsibility to move the case forward rests with the Crown, we are not persuaded that the Crown should be required to take responsibility for the failings of defence counsel. Defence counsel are the agents of their clients and it is they who must accept responsibility for their counsel’s conduct.

[8] In any event, the delay in this case in the provincial court was simply far too long and unreasonable.

[9] In respect of the application judge’s finding of actual prejudice, counsel for the Crown submits that the evidence did not support her conclusion. We see no basis to interfere. Even if she fell into error in respect of her findings of actual prejudice, this is a case in which prejudice can be inferred by reason of the unconscionable delay.

[10] The appeal is therefore dismissed.

“J.C. MacPherson J.A.”

“Robert P. Armstrong J.A.”

“Sarah Pepall J.A.”