Her Majesty the Queen v. Boateng

[Indexed as: R. v. Boateng]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Laskin and Tulloch JJ.A.

December 8, 2015

128 O.R. (3d) 373 | 2015 ONCA 857

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Accused discharging his first lawyer and then unsuccessfully appealing [page373] Legal Aid Ontario's ("LAO") refusal to transfer certificate to his new counsel — Accused bringing two Rowbotham applications — Second application successful — Delay of 15[cents] months which resulted from accused's attempts to retain counsel of choice being part of inherent time requirements of case rather than institutional or Crown delay — Reasonableness of LAO's decisions not relevant on s. 11(b) application — If evidence established LAO delayed rendering or implementing decisions could be considered as factor regarding delay but no such evidence present — Section 11(b) application not forum for collateral attack on correctness of Rowbotham decision — Prejudice to liberty interest during inherent time requirements of case cannot justify a finding of a breach of s. 11(b) — Delay not unreasonable — Canadian Charter of Rights and Freedoms, s. 11(b).

The accused was charged in July 2010 with importing narcotics into Canada. He quickly obtained a legal aid certificate and retained counsel. In August 2010, his relationship with that lawyer broke down, and he asked Legal Aid Ontario ("LAO") to transfer the certificate to his new counsel. LAO refused, and the accused's two appeals failed. The accused then brought a Rowbotham application for an order staying the prosecution conditionally until he had counsel. The application was dismissed in February 2011. The accused brought a second Rowbotham application in September 2011. That application was allowed. The trial was ultimately set to take place in October 2012. The accused brought an application for a stay of proceedings on the ground that his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time was infringed. His application noted that LAO had a policy regarding change of counsel but the accused did not adduce it or call any evidence indicating that the time it took LAO to make a decision was unreasonable. The application was dismissed. The accused was tried based on an agreed statement of facts that essentially admitted his guilt. The accused was convicted. He appealed.

Held, the appeal should be dismissed.

The 15[cents] month delay which resulted from the accused's attempts to retain counsel of choice was not institutional or Crown delay. Rather, it was part of the inherent requirements of the case. The reasonableness of LAO's decision not to transfer the certificate and the correctness of the first Rowbotham decision were irrelevant on the s. 11(b) application. There was no suggestion that LAO did not make the decisions it had to make in a timely fashion. The Rowbotham applications were also decided in a timely manner. The accused's ability to make full answer and defence or otherwise have a fair trial was not prejudiced by any delay. He suffered some prejudice to his liberty interest as he was denied bail and was in custody for two years between his arrest and his trial date. However, all but two or three months of the delay was attributed to the inherent time requirements of the case. Prejudice to a liberty interest accruing during a time period that is part of the inherent time requirements of the case cannot justify a finding of a breach of s. 11(b) and the automatic stay of proceedings that follows.

R. v. Peterman (2004), 2004 39041 (ON CA), 70 O.R. (3d) 481, [2004] O.J. No. 1758, 186 O.A.C. 83, 185 C.C.C. (3d) 352, 19 C.R. (6th) 258, 119 C.R.R. (2d) 7, 61 W.C.B. (2d) 624 (C.A.), consd

Other cases referred to

R. v. Boateng, [2011] O.J. No. 703, 2011 ONSC 739, 93 W.C.B. (2d) 43 (S.C.J.); R. v. Boateng, [2011] O.J. No. 6166, 2011 ONSC 6356, 99 W.C.B. (2d) 866 (S.C.J.); R. v. Chang, [2005] O.J. No. 4381, [2005] O.T.C. 899, 67 W.C.B. (2d) 41 (S.C.J.); [page374] R. v. Dow, [2012] M.J. No. 177, 2012 MBQB 122, 260 C.R.R. (2d) 276, 278 Man. R. (2d) 279, [2012] 10 W.W.R. 596, 102 W.C.B. (2d) 311; R. v. Godin, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26, 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 309 D.L.R. (4th) 149, 252 O.A.C. 377, EYB 2009-159757, J.E. 2009-1076, 389 N.R. 1, 245 C.C.C. (3d) 271; R. v. Lahiry (2011), 109 O.R. (3d) 187, [2011] O.J. No. 5071, 2011 ONSC 6780, 244 C.R.R. (2d) 248, 90 C.R. (6th) 90, 283 C.C.C. (3d) 525, 101 W.C.B. (2d) 337 (S.C.J.); R. v. M. (N.N.), 2006 14957 (ON CA), [2006] O.J. No. 1802, 209 O.A.C. 331, 209 C.C.C. (3d) 436, 141 C.R.R. (2d) 95, 69 W.C.B. (2d) 432 (C.A.); R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 165 D.L.R. (4th) 193, 231 N.R. 147, 168 Nfld. & P.E.I.R. 83, 128 C.C.C. (3d) 483, 19 C.R. (5th) 275, 56 C.R.R. (2d) 189, 40 W.C.B. (2d) 40; R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 134 N.R. 321, J.E. 92-517, 53 O.A.C. 241, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1, 8 C.R.R. (2d) 193, 15 W.C.B. (2d) 276; R. v. Neil, [2001] A.J. No. 729, 2001 ABQB 474, 301 A.R. 253, 55 W.C.B. (2d) 385; R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711, 192 O.A.C. 50, 190 C.C.C. (3d) 453, 27 C.R. (6th) 142, 123 C.R.R. (2d) 311, 66 W.C.B. (2d) 91 (C.A.); R. v. Schertzer, [2009] O.J. No. 4425, 2009 ONCA 742, 200 C.R.R. (2d) 1, 255 O.A.C. 45, 248 C.C.C. (3d) 270, 70 C.R. (6th) 234

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 11(b)

APPEAL by the accused from the conviction entered on October 2, 2012 by Durno J. of the Superior Court of Justice.

John Norris and Meara Conway, for appellant.

Brendan Gluckman, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

Overview

[1] The appellant was arrested at Pearson International Airport on July 24, 2010 and charged with importing a narcotic into Canada. The authorities had discovered 2.38 kg of heroin secreted in the false bottom of the appellant's suitcase. On August 17, 2012, the appellant brought an application to stay the prosecution, claiming that his right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed. The application was dismissed. On October 2, 2012, the appellant was convicted on the basis of an agreed statement of facts that effectively conceded the appellant's guilt. On February 1, 2013, the appellant was sentenced to 12 years' imprisonment, less credit for pre-trial custody.

[2] The appellant appeals his conviction, contending that the application judge erred in dismissing his s. 11(b) application. [page375]

[3] The argument on appeal, like the argument on the s. 11(b) application, focused on the delay caused by the procedural steps necessary to allow the appellant to retain counsel of choice. The appellant argues that the 15[cents] months attributed to those steps by the application judge were caused by the unreasonable refusal of Legal Aid Ontario ("LAO") to transfer the appellant's legal aid certificate to new counsel and were exacerbated by the court's failure to grant the appellant's first "Rowbotham" application. The appellant submits that the resulting delay should be characterized as either institutional or Crown delay. The appellant contends that a proper characterization of the 15[cents] months as institutional or Crown delay makes the total delay of some 26 months unreasonable and breaches the appellant's constitutional right to be tried within a reasonable time.

[4] At the end of oral argument, the court advised counsel that the appeal was dismissed with reasons to follow. These are those reasons.

II

The Timeline

[5] The appellant was arrested on July 24, 2010. He quickly obtained a legal aid certificate and retained counsel. By mid to late August 2010, his relationship with that lawyer had broken down. The appellant asked legal aid to transfer the legal aid certificate from the first lawyer to Mr. Norris. Legal aid refused, citing a policy applicable to requests to transfer certificates. The appellant, with Mr. Norris' assistance, appealed that decision through legal aid's internal appeal processes. Two appeals were taken. Both failed. The internal appeals had been exhausted by the end of November 2010.

[6] Mr. Norris quickly launched a "Rowbotham" application seeking an order staying the prosecution conditionally until the appellant had counsel. Wein J. heard the application on January 28, 2011 and dismissed it on February 15, 2011 [[2011] O.J. No. 703, 2011 ONSC 739 (S.C.J.)]. In her reasons, Wein J. gave the appellant 30 days to file additional material addressing the evidentiary deficiencies she had identified in her reasons for rejecting the "Rowbotham" application. On March 7, 2011, the appellant advised the court that he would not submit further material.

[7] After the unsuccessful "Rowbotham" application, the appellant made several appearances in the Ontario Court of Justice between March 7 and August 17, 2011. The appellant was unrepresented but did have the assistance of duty counsel on some appearances. In his appearances in the Ontario Court of [page376] Justice, the appellant made it clear that he wanted counsel. The Crown acknowledged that representation by counsel at trial was necessary for the appellant to obtain a fair trial. It is fair to say that attempts to provide the appellant with some form of legal assistance precipitated some of the adjournments in the Ontario Court of Justice.

[8] There was also some delay occasioned in the Ontario Court of Justice by efforts to provide the appellant with the necessary disclosure. Mr. Norris had been provided with disclosure, but had returned it after he could not be retained by the appellant. Disclosure was made more difficult, both because the appellant was self-represented and because he was in custody and unable to keep the disclosure with him while in his cell. The appellant consented to his committal for trial on August 17, 2011. Some disclosure-related issues remained outstanding.

[9] The appellant made his first appearance in the Superior Court of Justice on September 2, 2011, about two weeks after his committal for trial. Mr. Norris launched a second "Rowbotham" application on September 16, 2011. That application was heard by Wein J. on October 24, 2011 and granted on November 9, 2011 [[2011] O.J. No. 6166, 2011 ONSC 6356 (S.C.J.)]. By December 2, the federal Crown had provided the necessary funding and the appellant had retained Mr. Norris. Various disclosure-related procedures were undertaken by Mr. Norris and the Crown between December 2 and January 17, 2012.

[10] The parties were prepared to set a date for trial on January 17, 2012. The court offered a trial date of April 10, 2012. Mr. Norris indicated that he may not be available on the April date and suggested May 22, 2012. That date was fixed for trial and the defence acknowledged that it had waived the six weeks between April 10 and May 22. In early May, the defence requested a further adjournment to obtain transcripts that inadvertently had not been ordered. The trial was adjourned to October 1, 2012. The s. 11(b) application proceeded on August 17, 2012.

III

The Reasons of the Application Judge

[11] After reviewing the chronology and setting out the relevant legal principles, the application judge focused on the delays caused by the appellant's efforts to obtain counsel of choice. She concluded that the entire 15[cents]-month period from the arrest in July 2010 to the successful second "Rowbotham" application in November 2011 was attributable to the appellant's efforts to obtain counsel (para. 37). She rejected the submission that the [page377] delays should be attributed to the Crown or characterized as institutional delay. Instead, she treated the 15[cents] months as time the appellant required to retain counsel and therefore part of the inherent time requirements of the case (paras. 37, 40). Inherent time requirements are neutral in the s. 11(b) calculation.

[12] The application judge did not address the time period between the retaining of counsel in December 2011 and the ultimate trial date of October 1, 2012 in any detail. She did observe, however, that once counsel was retained the matter proceeded to trial without undue delay (para. 38).

[13] The application judge also considered any prejudice to the appellant flowing from the delay. She held that the delay had caused no prejudice to the appellant's fair trial rights. That finding is not challenged in light of the appellant's virtual admission of the case against him when the matter went to trial. The application judge also held that any prejudice to the appellant's liberty and security interests while awaiting trial were counterbalanced by the benefit he gained by obtaining counsel of choice to represent him. She held, at para. 40:

While the applicant is not faulted for delays occasioned for the purpose of seeking counsel, he should also not be permitted to claim prejudice for delays caused for his own benefit as a result of his own decisions.

IV

The Section 11(b) Claim

(i) Delays in obtaining counsel

[14] Mr. Norris' forceful submissions focus on the delays attributable to the appellant's efforts to retain counsel of choice. He accepts that time required to retain and instruct counsel is treated as part of the inherent time requirements needed to bring a criminal case to trial and is treated as neutral for the purposes of s. 11(b): R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, at pp. 792-93 S.C.R.; R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711, 190 C.C.C. (3d) 453 (C.A.), at para. 33. He also accepts that retaining counsel can be more complicated in some cases than in others. If there are complications, it will take more time to retain counsel. That added time will also be treated as part of the inherent time requirements of the case: R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, at para. 45; R. v. M. (N.N.), 2006 14957 (ON CA), [2006] O.J. No. 1802, 209 C.C.C. (3d) 436 (C.A.), at para. 14. On that approach, Mr. Norris submits that the appellant's request to transfer his legal aid certificate to a second lawyer added some small amount of time, at most a few weeks, to the inherent time requirements of the case. [page378]

[15] Mr. Norris argues, however, that the delay caused in this case had nothing to do with the time needed to accommodate the appellant's request to transfer the legal aid certificate. He maintains that what should have been a straightforward, quick process transferring the certificate to the new lawyer became a prolonged, multi-step, legal battle because of LAO's arbitrary and unreasonable refusal to transfer the certificate. He argues that LAO had no business refusing the appellant's reasonable request to transfer the certificate and that delays caused by that unreasonable refusal must count either against the Crown or as institutional delay for the purposes of the s. 11(b) analysis.

[16] This argument can succeed only if counsel can persuade the court, first, that a review of the reasonableness of the conduct of LAO is part of the s. 11(b) inquiry; and second, that LAO's conduct was unreasonable. The second of the two inquiries is fact-specific and straightforward in this case. I will begin there.

[17] There is no evidence in this record that would permit an assessment of the reasonableness of LAO's refusal to transfer the appellant's legal aid certificate. Mr. Norris argues that the facts speak for themselves. He contends that there can be no possible reasonable justification for LAO's refusal to transfer the certificate to a second lawyer within a few weeks of issuing the certificate.

[18] What counsel describes as an irresistible inference is in reality an assumption about explanations offered to LAO for the requested transfer and LAO's explanation for refusing the transfer. The appellant alleged that LAO acted unreasonably. He had the onus of demonstrating unreasonableness. For whatever reason, the appellant chose not to lead evidence on this issue. For example, apart from indicating that LAO had a policy concerning the transfer of legal aid certificates, the evidentiary record says nothing about the substance of the policy. Even if, as counsel suggests, leading evidence may have compromised the appellant's solicitor/client privilege with his first lawyer, the absence of evidence cannot justify assumptions about what the evidence might have shown.

[19] The application judge may have gone too far in inferring, in the absence of evidence to the contrary, that LAO's conduct was "based on sound and justifiable considerations" (para. 34). However, she did not err in declining to assume in the absence of evidence that LAO's conduct was unreasonable.

[20] I am satisfied that even if the application judge was required to examine the reasonableness of LAO's conduct as part of her s. 11(b) analysis, the appellant failed to demonstrate that LAO acted unreasonably. I could stop here. I will, however, [page379] address the broader question of whether the reasonableness of LAO's decision is reviewable on a s. 11(b) application.

[21] Section 11(b) protects the rights of an accused to liberty, security of the person and a fair trial by requiring that the accused be brought to trial within a reasonable time. The analysis required by s. 11(b) looks to the overall delay between the charge and the trial. It considers the reasons for various parts of the delay, characterizes the delay as defence delay, Crown delay, institutional/systemic delay or neutral/inherent delay. Finally, the analysis considers the prejudice caused to the accused by the delay. Ultimately, the court will decide whether having regard to the total delay, the attributions of the various periods of delay, the prejudice to the accused and the societal interest in a trial on the merits the overall delay was unreasonable. The inquiry is clearly fact-specific and focuses on the timeline of each individual case and the explanations for the delays revealed in the timeline: see R. v. Morin, at pp. 787-88 S.C.R.; R. v. Godin, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26, at para. 18; R. v. Schertzer, [2009] O.J. No. 4425, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 5; R. v. Lahiry (2011), 109 O.R. (3d) 187, [2011] O.J. No. 5071, 2011 ONSC 6780, 283 C.C.C. (3d) 525 (S.C.J.), at paras. 3-9.

[22] Applying the s. 11(b) analysis to this case, the appellant's attempts to retain counsel of choice stalled the progress of the prosecution from his arrest in late July 2010 through to early March 2011 when the appellant declined to file further material on the first "Rowbotham" application. Further efforts to retain counsel again stalled the proceedings between early September 2011 when the second "Rowbotham" application was made and December 2011 when that application was granted and Mr. Norris was retained. On my calculation, about 10[cents] months elapsed while the appellant made efforts to retain counsel, initially by way of his application for legal aid, followed by his attempt to transfer his certificate to Mr. Norris, followed by two internal appeals and finally by two "Rowbotham" applications.[^1]

[23] As indicated above, the appellant accepts that time needed to retain counsel is part of the inherent time requirements of the case. He also accepts that the task of retaining [page380] counsel can be more complex in some cases than in others and that added complexity will add to the inherent time required to retain counsel. Counsel's submission must come down to this. If LAO makes a decision that adds complexity and hence delay to the process through which the appellant eventually retains counsel, the time needed to go through the process will be treated as part of the inherent time requirements of the case unless the court is satisfied that LAO's decision was unreasonable in which case the same delay will become institutional delay.

[24] On this approach, the ultimate characterization of the delay will depend in part on the application judge's assessment of the merits of decisions taken by LAO and presumably the merits of the policies that drive those decisions. This approach refocuses the s. 11(b) inquiry from the timeline of the case and the delays revealed by that timeline, to a consideration of the reasonableness of LAO's response to the appellant's efforts to obtain counsel of choice.

[25] The approach urged by the appellant is inconsistent with this court's decision in R. v. Peterman (2004), 2004 39041 (ON CA), 70 O.R. (3d) 481, [2004] O.J. No. 1758 (C.A.). In Peterman, an application judge had made a "Fisher" order directing that the appellant be represented by a named counsel and junior counsel and ordering that counsel's fees and various specified expenses be paid by LAO or the Ministry of the Attorney General. The application judge stayed the criminal proceedings pending compliance with her order.

[26] In holding that the application judge had erred in making the order, Rosenberg J.A. said, at para. 25:

In considering these issues, the application judge was again, not entitled to review the reasonableness of the decisions made by Legal Aid. Her focus had to be on whether the respondent's right to a fair trial was imperilled because of the conditions under which he was being defended.

[27] As my late colleague so often did, he captures a key point in very few words. The application judge in Peterman was charged with determining whether the accused could get a fair trial without a lawyer. The reasonableness of LAO's decisions in respect of his representation was irrelevant to that question. Whether LAO had reasonably or unreasonably imposed the restrictions it did, the question remained -- could the accused get a fair trial without a lawyer?

[28] Whether reasonable or unreasonable, LAO's decisions do not alter the explanation for the relevant part of the delay or the length of the delay. The appellant wanted to retain Mr. Norris. As it turned out, in order to retain Mr. Norris the appellant had [page381] to take several procedural steps, beginning with a request to transfer the LAO certificate, followed by two appeals from the refusal to transfer the certificate, followed by two "Rowbotham" applications. Regardless of the reasonableness of LAO's decisions, the same delay occasioned by these procedural steps would have occurred and was necessary so that the appellant could obtain his counsel of choice.

[29] The appellant's argument really goes beyond a claim that LAO acted unreasonably. He seeks to have an application judge, hearing a s. 11(b) application sit in de facto appeal from the decisions made by LAO. The appellant would have the court pass upon the correctness of LAO's decisions, consider the time that would have been required for the appellant to retain counsel had LAO made the correct decision, and treat the rest of the time actually required to retain counsel as institutional delay.

[30] LAO operates under a statutory mandate. It must make a variety of decisions in respect of applications to publicly fund counsel for accused. Those decisions, including decisions about transferring certificates, will involve a variety of considerations, including fiscal ones. The legislature decides when, by whom and on what grounds LAO's decisions can be reviewed. A criminal court sitting on a s. 11(b) application has neither the statutory authority, nor the institutional capability to properly assess the correctness of LAO's decisions or the policies reflected in those decisions.

[31] In holding that the reasonableness, much less the correctness, of LAO's decisions are not relevant on a s. 11(b) application, I do not mean to suggest that delays by LAO in considering and determining issues in relation to legal aid applications will never impact on the s. 11(b) analysis. If, based on the evidence in a specific case, an application judge determines that LAO has not acted in a timely fashion in rendering or implementing decisions pertaining to counsel, the delays caused by LAO's failure to act in a timely fashion would not fall into inherent time requirements of the case. Assuming the necessary evidence was before the application judge, she could characterize delay beyond that reasonably required for LAO to make the relevant decisions as delay attributable to "other reasons". As explained in Morin, at p. 800 S.C.R., those delays can ultimately count against the Crown:

[A]n investigation of unreasonable delay must take into account all reasons for the delay in an attempt to delineate what is truly reasonable for the case before the court. One such factor which does not fit particularly well into any other category of delay is that of actions by trial judges. An extreme example is provided by Rahey, [citation omitted]. In that case it was the trial court judge who caused a substantial amount of the delay . . . Such [page382] delay is not institutional in the strict sense. Nevertheless such delay cannot be relied on by the Crown to justify the period under consideration.

(Emphasis in original)

[32] The Crown bears the responsibility of bringing an accused to trial within a reasonable time: R. v. Godin, at para. 11; R. v. Morin, at pp. 801-802 S.C.R. As the prosecutor, the Crown is best positioned to spot and react to potential delay-related problems caused when an institutional participant in the criminal justice system, like LAO, drags its feet and places the rights protected under s. 11(b) in jeopardy. If the Crown fails to react to these delays, it will bear responsibility for them in the s. 11(b) calculus. That responsibility exists regardless of whether LAO is classified as part of the government or the prosecution: see R. v. Neil, [2001] A.J. No. 729, 2001 ABQB 474, at paras. 50-60; R. v. Chang, [2005] O.J. No. 4381, [2005] O.T.C. 899 (S.C.J.); see, also, R. v. Dow, [2012] M.J. No. 177, 2012 MBQB 122, at paras. 35-47.[^2]

[33] There is no suggestion here that LAO did not make the decisions it had to make in a timely fashion. The trial judge correctly held that the time spent requesting the transfer of the certificate, challenging the refusal to transfer the certificate, and the "Rowbotham" applications were properly attributable to the appellant's efforts to obtain counsel and therefore a part of the inherent time requirements of the case.

[34] In oral argument, Mr. Norris focused on the reasonableness of the decisions of LAO. In his factum, however, he made a similar argument aimed at the reasons of the application judge on the first "Rowbotham" application. He contended that the application judge fell into several errors, including using the appellant's refusal to waive client/solicitor privilege as a basis for dismissing the application. He argued that on a proper application of the "Rowbotham" principles, the application judge should have appointed counsel on the first application, thereby avoiding the delay between March 2011 and December 2011.

[35] For the same reason that a s. 11(b) application is not the place to review the merits of decisions of LAO, it is also not the forum in which to conduct a collateral attack on a decision made on a "Rowbotham" application. The correctness of the decision [page383] on the first "Rowbotham" application was irrelevant to the outcome of the s. 11(b) application.

[36] The "Rowbotham" applications were decided in a timely fashion. The application judge's willingness on the first "Rowbotham" application to receive additional material directed at the deficiencies she had highlighted in her reasons indicates that she was sensitive to the delays being caused by the appellant's efforts to retain counsel of choice. The appellant, as he was entitled to do, declined the application judge's invitation to provide her with further material.

(ii) The other time periods

[37] I turn to the time periods other than the time attributable to the appellant's efforts to obtain counsel. Little was said in argument about these time periods and little need be said here. There are two time periods:

-- March 2011 -- August 2011; and

-- December 2011 -- October 2012.

[38] Between March 2011 and August 2011, the case was in the Ontario Court of Justice. The appellant was unrepresented. Efforts were being made to provide legal assistance to the appellant while at the same time providing him with the disclosure that had previously been provided to counsel when it was anticipated that counsel would be acting for the appellant. The record does not warrant, nor do the circumstances require, an appearance-by-appearance assignment of responsibility for the various segments of the March to August time period. To some extent, the case "spun its wheels" while efforts were made to sort out the problems associated with the appellant obtaining counsel. Putting this part of the case's chronology in the best light for the appellant, two of the five months could be described as institutional delay. The rest is inherent delay and therefore neutral.

[39] An examination of the time period between November 2011 and October 1, 2012 begins with the deduction of the 1[cents]-month period between early April and mid-May 2012. That time period was waived by the defence when it requested the May trial date. Of the remaining 9[cents] months, about five months can be characterized as an intake period (December 2011--April 2012). Two months of that period involved disclosure procedures. The other three months represents the time between the date when the parties were prepared to set a trial date and the date offered for trial. The additional four-month delay was occasioned by the defence request for a further adjournment from late May [page384] 2012 to October 1. The trial judge, charitably, characterized this delay as neutral and also part of the inherent time requirements of the case (para. 38). She could well have attributed that delay to the late defence request for an adjournment.

[40] I doubt that any of the 9[cents] months that the case was in the Superior Court could properly be viewed as institutional delay. Even if a month or two between December 2011 and April 2012 could be so characterized, the delay falls well within the guidelines offered in Morin.

(iii) Prejudice

[41] There is no claim that the appellant's right to make full answer and defence or otherwise have a fair trial was prejudiced by any delay. He was, however, denied bail and was in custody for the two years between his arrest and his trial date. Any delay in bringing the appellant to trial would inevitably significantly impact on his right to liberty. That negative impact is, however, mitigated by the explanation for the delay. All but perhaps two or three months is attributed to the inherent time requirements of the case. Prejudice to a liberty interest accruing during a time period that is part of the inherent time requirements of the case cannot justify a finding of a breach of s. 11(b) and the automatic stay of proceedings that follows. Were it otherwise, time said to be part of the inherent time requirements of the case can hardly be described as "neutral" for the purposes of s. 11(b).

[42] The prejudice to the appellant's liberty interest factors into the overall s. 11(b) mix. Considered along with the other relevant factors, it does not justify a finding that any delay in bringing the appellant to trial fell below constitutionally accepted requirements and infringed s. 11(b) of the Charter.

V

Conclusion

[43] The application judge properly dismissed the s. 11(b) application. As indicated at the end of oral argument, the appeal is dismissed.

Appeal dismissed.

[page385]

Notes

[^1]: Unlike the application judge, I would not ascribe the five months between March 2011 and August 2011 to the appellant's efforts to retain counsel. In my view, that time period relates to the steps needed to eventually move the matter through the Ontario Court of Justice to committal. My different attribution of that five-month time period has no impact on the result: see, infra, para. 37.

[^2]: My analysis would also support the conclusion that defence "foot dragging" during the legal aid process would count against the defence. Practically speaking, on a s. 11(b) application it may make little, if any, difference whether delay is treated as neutral or attributed to the defence.