Court of Appeal for Ontario

Citation: R. v. Findlater, 2012 ONCA 685

Date: 2012-10-12

Docket: C53639

Before: Winkler C.J.O., Rosenberg and Hoy JJ.A.

Between

Her Majesty the Queen Respondent

and

Necho Findlater Appellant

Counsel: Mark Halfyard, for the appellant Marcella Henschel, for the respondent

Heard: October 9, 2012

On appeal from the conviction entered on September 27, 2011 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant appeals from his conviction for numerous weapons offences. The only ground of appeal is from the decision of MacDonnell J. dismissing his application for a stay of proceedings on the basis of unreasonable delay in violation of his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms. For the following reasons, the appeal is dismissed.

[2] The appellant submits that the trial judge erred in his attribution of two periods of delay and in his treatment of prejudice. We begin with the attribution of delay. The appellant submits that the trial judge erred in characterizing the four months from the time of arrest until the date was set for a preliminary inquiry as intake or neutral. He submits that most of that delay was due to the Crown’s failure to make timely disclosure, and in particular, to disclose the co-accused’s videotaped statement to the police.

[3] In our view, the trial judge properly characterized this four months delay as intake or neutral. While not an overly complex case, some time was required to make disclosure. And, importantly, it is apparent that the delay in disclosure did not delay the proceedings. The transcript of proceedings and the correspondence show that the court and counsel would have been able to set a date for the preliminary inquiry without the disclosure actually being in the hands of the appellant’s counsel. There was then a short delay because the appellant did not attend personally and the court was unwilling to set a date for a preliminary inquiry until the appellant had elected his mode of trial. It was reasonable to attribute the entire four months to neutral intake.

[4] The appellant also submits that the trial judge erred in attributing any of the delay to the defence after the case was not reached on the first trial date in February 2010. When the case had to be adjourned, counsel was offered the date of May 10, 2010. Defence counsel was not available because she already had a murder trial scheduled for that time. The next available date was September 14, 2010. The appellant accepted that date for trial. When the case was spoken to in February 2010, there was no suggestion that the appellant was prejudiced by the delay or that he was seeking an earlier trial date.

[5] The trial judge attributed the entire delay from February to May 10, 2010 to institutional delay. He then divided the four month delay from May 10 to September 14th. He attributed two months to institutional delay and two months to the defence being unavailable to take advantage of the May trial date. Relying upon R. v. Godin, 2009 SCC 26, the appellant submits that the trial judge erred and that the entire period was institutional delay.

[6] The trial judge attributed five of the seven month delay due to the adjournment as institutional delay. This was a reasonable allocation of delay. The trial judge took into account that defence counsel cannot be expected to be ready to accept any date offered and thus attributed most of the delay to lack of adequate institutional resources. But, he could also take into account that there was no suggestion that counsel wanted an earlier trial date or that the trial was being unreasonably delayed. It may be that these two months could more properly be considered to be neutral rather than defence delay, but that would not alter the s. 11(b) analysis.

[7] As to prejudice, the principal submission by the appellant is that the trial judge erred in failing to consider that prejudice could be inferred from the 30 months delay from arrest to trial. The appellant filed an affidavit in attempt to demonstrate actual prejudice to his security and liberty interests. There was no suggestion that his fair trial interests were prejudiced. The appellant was cross-examined on the affidavit before the trial judge. The trial judge rejected the allegations of actual prejudice. He explained why he did so and the appellant does not suggest that those finding were unreasonable.

[8] We do not agree that the trial judge did not take into account any prejudice that could be inferred from the delay. The trial judge expressly acknowledged the prejudice to the appellant’s liberty interests by the strict bail conditions. But, he also fairly noted that each time the appellant sought to loosen the bail conditions, Crown counsel consented and that on the last occasion, the appellant waited several months before entering into the new recognizance. The trial judge did not find that the appellant did not suffer any prejudice, only that he had “a tendency to overstate the problems”. It was not that the trial judge found no prejudice, only that he had not established the degree of prejudice claimed. As he said:

Where an accused does not suggest that a proposed trial date is going to cause unacceptable prejudice and accepts that date without comment, it’s reasonable to infer that significant prejudice will not occur. I draw that inference in all the circumstances here. [Emphasis added.]

[9] The trial judge did not err in his approach to prejudice. His reasons demonstrate that he applied the principles laid down in decisions from the Supreme Court of Canada and this court correctly. Accordingly, the appeal is dismissed.

“Winkler C.J.O.”

“M. Rosenberg J.A.”

“Alexandra Hoy J.A.”