R. v. Powell

Ontario Reports

Ontario Court of Appeal

Huscroft, Miller and Nordheimer JJ.A.

November 25, 2020

153 O.R. (3d) 455 | 2020 ONCA 743

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Delay of 33 months between arrest and completion of kidnapping trial — Accused applying for stay — Application judge using transitional exceptional circumstance and finding delay reasonable — Appeal dismissed — Transitional exceptional circumstance appropriate but application judge committed several errors — Notwithstanding errors, recalculated delay still within guidelines — Application judge also erring by discounting prejudice to accused, but countervailing consideration was seriousness of offences — Delay did not justify a stay — Canadian Charter of Rights and Freedoms, s. 11(b).

The accused was convicted on one count of kidnapping for ransom and one count of conspiracy to kidnap. He was arrested in January 2015 and the length of time from arrest until completion of the trial was 33.5 months, but there was agreement that a two-week period of delay arising from a co-accused's attempt to change counsel was properly deducted as a discrete event, leaving 33 months of delay for consideration in his application for a stay of proceedings under s. 11(b) of the Charter of Rights and Freedoms. During an adjournment of the accused's preliminary hearing, the Supreme Court of Canada changed the law applying to s. 11 challenges. The application judge found that the delay issue ought to be decided with reference to the transitional exceptional circumstance set out by the Supreme Court. For the nine months between the judicial pre-trial and the date set for the preliminary inquiry, the application judge allocated two months to institutional delay and the remaining seven months to preparation time. A delay of three and one-half months between the adjournment of the preliminary inquiry and its completion arising from a request by defence counsel to examine certain police officers was deducted as a discrete event from the overall delay. For the period of 12 months and nine days between the completion of the judicial pre-trial and the end of the trial, the application judge attributed six months to inherent time requirements and six months to institutional delay. The application judge concluded that the delay was well within the bounds of reasonable having regard to the complexity of the case, the reasons for the delay, the prejudice to the accused and the societal interest in having a trial on the merits. The application was dismissed. The accused appealed.

Held, the appeal should be dismissed.

The delay did not justify a stay. The transitional exceptional circumstance was appropriate, but the application judge made several errors in his analysis. It was not clear why he concluded that counsel would have required seven months to prepare for the preliminary inquiry. A more appropriate allocation would have been four months for inherent time requirements and five months for institutional delay. As for the adjournment of the preliminary inquiry, the Crown ought to have anticipated that the defence might wish to examine the police officers and it was not up to the judge to be independently satisfied of the importance or materiality of the disclosure sought. The six weeks required for the Crown to arrange for the officers to be available to be examined ought to have been characterized as Crown delay. Regarding preparation for trial, the proper allocation was four months attributed to inherent time requirements and eight months of institutional delay. Notwithstanding the errors, the recalculated period of delay fell within the guidelines. The judge had also discounted the significant prejudice suffered by the applicant in light of the conditions where he was incarcerated, but the countervailing consideration was the seriousness of the offences.

Cases Cited

Morin (para. 11), apld

Jordan (para. 10), consd

Statutes, Regulations and Rules Cited:

[Canadian Charter of Rights and Freedoms](