ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Robin Prihar, for the Appellant
Appellant
- and -
EDWARD CHRISTIE
Edward Christie, on his own behalf
Respondent
HEARD: May 19, 2015
REASONS FOR JUDGMENT
[On appeal from the Judgment of Justice L. Marshall
dated June 30, 2014]
F. Dawson J.
1The Crown appeals from the judgment of Justice L. Marshall of the Ontario Court of Justice dated June 30, 2014 staying a charge of assault against the respondent on the basis that his right to trial within a reasonable time as protected by s. 11(b) of the Canadian Charter of Rights and Freedoms had been violated. At the hearing of the appeal I allowed the appeal and ordered a new trial for brief reasons to follow. These are those reasons.
2On August 14, 2012 the respondent was arrested and charged with assaulting his common law partner. He was released on bail on August 17, 2012. The respondent sought adjournments at a series of subsequent court appearances. On December 19, 2012 the case was set for a one day trial on July 22, 2013. Counsel for the respondent did not provide the court with her earliest possible dates.
3On July 22, 2013 an agent for trial counsel of record sought an adjournment on the basis that defence counsel’s child had been taken to hospital on an emergency basis the previous night. The Crown’s witnesses were available and the Crown was ready to proceed. The trial was adjourned and the respondent was remanded to July 30, 2013 to set a new trial date.
4On July 30, 2013 a second trial date was set for November 22, 2013. Again, counsel for the respondent did not put any earlier available dates on the record.
5On November 4, 2013 the Crown brought an adjournment application returnable November 5, 2013. The Crown had just become aware that both of the Crown’s civilian witnesses had been subpoenaed to give evidence in a Superior Court trial scheduled for November 18 to 25, 2013. Counsel for the respondent took the position that she would consent to the adjournment but would not waive the respondent’s s. 11(b) rights. Counsel for the respondent also indicated that she was not available for trial until after April of 2014. The adjournment was granted and a new trial date was set for June 30, 2014. A s. 11(b) application was filed on June 5, 2014.
6When the trial judge dealt with the matter on June 30, 2014 she immediately stated that she did not need to hear from counsel for the respondent but said she had questions for the Crown. I point out that the burden was on the respondent. After a dialogue that occupies approximately 11 pages of transcript, primarily with Crown counsel, the trial judge said the following:
The circumstances are unique, however, it’s too long and in totality, it’s too long, period, end of discussion. It is, it is almost two years out and, and, although there was not laid back attitude or whatnot, there should have been an urgency that the – as soon as everybody was available, they were given a trial date. That has got to be a component of the system. And as a result, I’m finding the delay in totality here was unreasonable and the charge is stayed for delay.
7Pursuant to R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 the court is to look at the overall period of delay in order to decide whether it is of such a length that a further examination of the reasons for the delay is warranted. I agree that the period of delay in this case warranted further examination.
8Morin mandates, at para. 31, that in such circumstances the court must examine the various periods of delay making up the total delay, having regard to the following factors:
the length of the delay;
waiver of time periods;
the reasons for the delay, including
(a) inherent time requirements of the case;
(b) actions of the accused;
(c) actions of the Crown;
(d) limits on institutional resources;
(e) other reasons for delay;
- prejudice to the accused arising from the delay.
9It is only after engaging in this analysis that the court is to determine whether s. 11(b) of the Charter has been violated, having regard to the interests s. 11(b) protects. This is a balancing process and does not reduce to a mathematical formula. The nature of that balancing process is described in R. v. Kporwodu (2005) 2005 11389 (ON CA), 75 O.R. (3d) 190, [2005] O.J. No. 1405 (C.A.), at paras. 184-197.
10In this case the trial judge erred by failing to follow this process. While I agree that the overall delay was substantial, that was not the end of the matter, as the trial judge’s reasons indicate, but just the beginning. A further careful examination of the components of the delay was required. Experience in many cases has shown that when such an analysis is undertaken the delay attributable to institutional delay and to the Crown is often less than may have been anticipated based on the length of the overall delay. Here the trial judge recognized that there were unique circumstances yet she did not categorize the individual components of the delay pursuant to the Morin factors.
11Neutral time, such as intake time and the inherent time requirements of the case, must be identified and removed from consideration in the s. 11(b) evaluation. The trial judge made no effort to identify such periods of delay: see R. v. Tran, 2012 ONCA 18, at para. 42.
12The trial judge further erred by failing to engage in the ultimate balancing process required by Morin.
13The appeal is allowed. The stay of proceedings is set aside and a new trial is ordered before another judge of the Ontario Court of Justice.
F. Dawson J.
Released: May 21, 2015
CITATION: R. v. Christie, 2015 ONSC 3234
COURT FILE NO.: SCA(P) 484/14
DATE: 20150521
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and –
EDWARD CHRISTIE
Respondent
REASONS FOR JUDGMENT
F. Dawson J.
Released: May 21, 2015