COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Konstantakos, 2014 ONCA 21

DATE: 20140114

DOCKET: C54594

Doherty, Strathy and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

George Konstantakos

Respondent

Croft Michaelson and Sam Siew, for the appellant

Emily Morton, for the respondent

Heard: January 9, 2014

On appeal from a stay of proceedings entered by Justice Peter Tetley of the Ontario Court of Justice on October 20, 2011.

ENDORSEMENT

[1] The Crown seeks to appeal a stay of proceedings granted on the ground of unreasonable delay under s. 11(b) of the Charter.

[2] The police executed a search warrant of the respondent’s residence and found a marijuana grow-operation. He was charged with production of marijuana and possession for the purpose of trafficking.

[3] The time between his arrest and his scheduled trial was 12 ½ months. The application judge in the Ontario Court of Justice characterized the time between the swearing of the information and the first scheduled pre-trial conference – approximately 2 months – as neutral intake. He found the remaining approximately 10½ months was attributable either to the Crown or to institutional delay, and was unreasonable; he stayed the charges.

[4] The Crown says the application judge erred in his characterization of two periods of delay and, properly characterized, the delay was within the R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, guidelines. Alternatively, it says he failed to balance the societal interest in a trial on the merits against the minimal prejudice suffered by the respondent.

[5] The characterization of periods of delay, and the ultimate decision concerning the reasonableness of a period of delay, is reviewable on a standard of correctness: R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19. The underlying findings of fact are reviewable on a standard of palpable and overriding error: R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71.

[6] There are two periods of delay at issue. The first is the delay in conducting a judicial pre-trial, which was not held until February 23, 2011, having been adjourned twice due to delays by the Crown in vetting the disclosure. There is no dispute that these delays were attributable to the Crown. There was a further delay of 1½ months when the pre-trial, which began on February 23, was adjourned to April 5, 2011. It did not take place on that date because a prosecutor was not available, with the result that it was adjourned to May 10, when it was completed. A trial date was set for December 2, 2011, and the s. 11(b) application was scheduled for October 3, 2011.

[7] The application judge characterized the entire period from January 24, 2011, when the pre-trial was first scheduled, to May 10, 2011 when it was completed – a total of 3½ months – as Crown delay. This was in spite of uncontested evidence that the adjournment from February 23 to April 5, 2011 (6 weeks) was the result of a joint request by the Crown and defence, both of whom wanted to obtain additional information pertinent to their discussions – information that could have resulted in a resolution. The application judge attributed all this delay to the Crown because he found the request was occasioned, at least in part, by the Crown’s failure to provide the required disclosure earlier.

[8] In our view, this was a mischaracterization of the delay, which should have been described as inherent. Pre-trial conferences are necessary case management tools, conducive to the efficient use of resources, and reasonable delays to conduct them should be treated as inherent. Absent exceptional circumstances, which were not present here, adjournment of a pre-trial, pursuant to a joint request, should be regarded as reasonable and characterized as inherent delay.

[9] The second period of delay concerns the time from May 10, 2011, when the trial date was set, to the December 2, 2011 trial date. The Crown conceded, and the application judge held, that this entire period of 6¾ months was institutional delay.

[10] In our view, the Crown’s concession was erroneous and this court is not bound by it: see Tran, at para. 31. Institutional delay does not start to run until the parties are ready for trial and the system cannot accommodate them: Morin, at pp. 794-95. It is not realistic to assume that no time is required for counsel to clear their schedules and prepare for trial: R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187. That preparation time must be taken into account as part of the inherent time requirements of the case: R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 19.

[11] Given the Crown’s concession, the defence could not have been expected to place its actual available dates before the court. Allowing a minimal amount of time to prepare for a trial of moderate complexity, including the preparation and service of an application under s. s. 8 of the Charter, it is reasonable to deduct 30 days as inherent delay.

[12] These two deductions that ought to have been made – totalling approximately 2½ months – bring the total Crown and institutional delay to approximately 8 months, at the low end of the Moringuidelines.

[13] This is a case in which there was a significant societal interest in a trial. The charge was serious. The evidence of actual prejudice was not strong and was largely attributable to the charges themselves as opposed to the delay. In all the circumstances, the delay was not unreasonable.

[14] We would therefore grant leave to appeal, allow the appeal, set aside the stay and order that the matter proceed to trial.

“Doherty J.A.”

“G.R. Strathy J.A.”

“G. Pardu J.A.”