R. v. Swanson, 2017 ONSC 710

CITATION: R. v. Swanson, 2017 ONSC 710

COURT FILE NO.: CR-770-14

DATE: 2017/01/30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

THOMAS KARSTEN SWANSON

Accused

Patricia Bowles, for the Crown

Michael Mavraganis, for the Accused

HEARD: December 15, 2016

REASONS FOR JUDGMENT

Justice Patrick Smith

Facts Relevant to section 11(b) Application

[1] The trial of this matter was conducted on December 7, 8, 9, 10 & 11, 2015 and March 21 & 22, 2016.

[2] On September 23, 2016 the accused, Thomas Karston Swanson, was found not guilty of counts one, two, and three on the indictment but guilty of count number four: communicating with a person under the age of fourteen for the purpose of facilitating the offence of child pornography contrary to section 172.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, (the primary offence) and section 163.1 of the Criminal Code (the secondary offence) .

[3] A pre-sentence report was ordered and sentencing was scheduled for December 15, 2016.

[4] After the conviction was entered and shortly before the date scheduled for sentencing the accused filed an application to have proceedings stayed based upon unreasonable delay sufficient to constitute a violation of section 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11.

[5] The 11(b) application along with sentencing submissions were heard on December 15, 2016 and the matter adjourned until today for my decision on the application and/or for sentencing.

[6] I will first address the section 11(b) application.

What Legal Framework Should be applied on a Section 11(b) Application at the Sentencing Stage?

[7] On July 8, 2016, the Supreme Court released its latest decision on applications for unreasonable delay under section 11(b) of the Charter in R. v. Jordan, 2016 SCC 27. The Court determined that a 30-month ceiling would apply to cases tried in the Superior Court of Justice, and that all delays over this ceiling would be presumptively unreasonable. For cases above this ceiling, the Crown has the onus to demonstrate that the delay is not unreasonable due to exceptional circumstances. For cases in the system prior to July 8, 2016 (“transitional” cases), transitional exceptional circumstances may apply justifying the delays.

[8] The application relates to charges that pre-date the decision of the Supreme Court in R. v. Jordan, and for that reason it can be categorized as a transitional case. The application was served after conviction and on the eve of sentencing.

[9] While the decision in Jordan discusses what legal framework to apply for transitional cases, there is only a brief comment on what framework applies to cases at the sentencing stage or when delay is raised on appeal.

[10] The Supreme Court reasoned that Defence delay does not count towards the presumptive ceiling. Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances.

[11] Exceptional circumstances lie outside the Crown's control in two circumstances: (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.

[12] If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is considered to be reasonable.

[13] For cases where the delay does not reach the presumptive ceiling, the Defence has the onus of demonstrating that the delay is nevertheless unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law.

[14] With respect to applications for stay at the sentencing stage, the Supreme Court in Jordan refers to its own decision in R v MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 which held that section 11(b) does protect the accused’s interests at the sentencing stage and that section 11(b) includes the right to be sentenced within a reasonable time. Thus, it is clear that the overall delay of a trial for the purposes of applications under section 11(b) does continue running passed the date of conviction and into the sentencing stage.

[15] The only indication regarding the application of section 11(b) to sentencing following Jordan, is the following footnote at paragraph 49:

This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

[16] Based on this comment, it would appear that the 30 month ceiling imposed on Superior Court trials may not always apply to the sentencing process. The Supreme Court has made it clear that it was not pronouncing itself on this issue in Jordan because the question was not before the Court. Thus, it cannot be said with any certainty that the presumptive 30 month ceiling always applies to the sentencing process.

[17] However, in setting a clear ceiling at 30 months in Jordan, the Supreme Court has sent a clear message that trials must proceed as expeditiously as possible.

[18] That said, special post-conviction considerations may also be relevant. As mentioned by the Ontario Court of Appeal in R. v. Williamson, 2014 ONCA 598, 324 O.A.C. 231, the presumption of innocence no longer applies on appeal. Because Mr. Swanson was found guilty prior to service of his 11(b) application, it is logical that the reasoning in Williamson would apply at the sentencing stage.

The Transitional Framework

[19] For all cases where the accused was charged prior to July 8, 2016, the transitional framework to assess delays for section 11(b) applications developed in Jordan applies.

[20] For transitional cases the factors to be assessed are:

• Total delay from charge to anticipated end of the trial;

• Whether any of those delays were caused by the Defence (subtract that time);

• If the delay still exceeds 30 months, the Crown must demonstrate that the delay was reasonable in light of exceptional circumstances; and

• Even if the delay is not reasonable, whether the transitional exceptional circumstances justify the delay and consider what would have happened under the Morin framework.

[21] The Court is then obliged to consider whether the delay is unreasonable, and in doing so, to balance the interests of the accused and the societal interests in a trial on the merits. (See: R v. Williamson; R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, at para. 9; R. v. Tran, 2012 ONCA 18, 287 O.A.C. 94, at para. 24; R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at pp. 786-803 and R. v. Stilwell, 2014 ONCA 563, 324 O.A.C. 72).

[22] In Morin the Supreme Court described the primary purpose and intent of section 11(b) was to protect the individual rights of the accused as follows:

• The right to security of the person (“protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings”);

• The right to liberty (“protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restricted bail conditions”); and

• The right to a fair trial (“protected by attempting to ensure that proceedings take place while evidence is available and fresh”).

[23] The Court went on to identify various categories of delay that form the focus of a transitional section 11(b) application:

• Inherent time requirements of the case;

• Actions of the accused;

• Actions of the Crown;

• Limits on institutional resources; and

• Other reasons for delay.

[24] Inherent time requirements include intake requirements, such as the retention of counsel, bail hearings, disclosure, counsel and judicial pre-trials etc., as well as counsel’s preparation of the case, which varies based on complexity of the case. A preliminary inquiry also adds to the inherent length of delay. Inherent time requirements will be considered neutral as between the applicant and the state.

[25] The category, “actions by the accused” include such elements as motions and adjournments. The same type of activities may fall in the category “actions by the Crown.”

[26] Institutional delay occurs when the parties are ready for trial but the judicial system cannot accommodate them.

[27] Other reasons for delay may include, by way of example, the actions of trial judges and, in most cases, will weigh against the Crown.

[28] To assist lower courts in assessing delay the Supreme Court set out an “administrative guideline” (noting that it was neither a limitation period nor a fixed ceiling) of 8-10 months for proceedings in Provincial Courts and 6-8 months for proceedings in Superior Courts.

The Position of the Applicant

[29] The Applicant argues that it has been 51.4 months since the accused was arrested on September 21, 2012 and the hearing for the section 11(b) application was heard on December 15, 2016.

[30] The Applicant submits that, because the delay exceeds the 30 month ceiling in Jordan, the delay is presumptively unreasonable and the accused is assumed to have suffered prejudice. To rebut this presumption, the onus is on the Crown to demonstrate exceptional circumstances failing which a stay of proceedings must be entered.

[31] Because the accused was charged prior to the decision in Jordan, the Applicant argues that the correct analytical framework and transitional exceptional circumstances as set out in R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.J No. 106 and R v Morin, 1992 CanLII 89 (SCC), [1992] S.C.J. No. 25 apply.

[32] In the case at bar, the Applicant denies waiving any delays and argues that, under the Morin framework, inherent time requirements of any given case is considered a neutral delay and does not count towards the Crown or the Defence.

[33] The Applicant attributes 9.1 months to neutral delays.

[34] The Applicant concedes that 4.0 months of delay are attributable to the Defence.

[35] With respect to institutional delay the Applicant argues that the Crown is responsible for all institutional delay because it is the responsibility of the Crown to bring an accused to trial within a reasonable period of time.

[36] The Applicant submits that the total institutional and Crown delay is 38.3 months; that this exceeds SCC guidelines; that the Crown bears the burden of adducing evidence to justify the delay and has not discharged this responsibility.

[37] The Applicant submits that prejudice can be inferred from the delay and the evidence before the Court demonstrates that the accused has suffered real and actual prejudice: no advancement or promotion in rank; no deployment and loss of opportunity; loss of income and the burden of living for 51.4 months under restrictive bail terms.

[38] A summary of the position of the Applicant with respect to delays is as follows:

Total delay from time of charge: 51.4 months

Less: neutral delay 9.1 months

Less: defence delay 4.0 months

Total: 38.3 months (15.8 months in OCJ and 22.5

months in SCJ)

[39] The Applicant submits that a delay of 38.3 months together with the prejudice suffered by the accused violates the accused’s section 11(b) rights justifying this Court ordering a stay of proceedings under section 24(1) of the Charter.

The Position of the Respondent / Crown

[40] The Crown submits that the overall delay between the date the accused was charged (September 26, 2012) and the date when he was found guilty of count 4 (September 23, 2016) is 48.2 months

[41] The Crown summarizes the delays as follows:

Total delay from time of charge to rendering of verdict: 48.2 months

Delays attributable to the Defence: 9.7 months

Delays attributable to exceptional circumstances: 15.9 months

Delays attributable to institutional delay: 14.8 months

[42] The Crown submits that the applicable legal framework for this application is set out in Jordan, notwithstanding that the charges were laid prior to 2016. There is no discrepancy between the Crown’s understanding of the applicable legal framework and what has already been detailed earlier in this decision.

[43] The Crown argues that the defence has not properly followed procedural rules because:

• The Defence did not bring the application 60 days prior to the beginning of the trial as required by the Superior Court Provincial Practice Direction dated August 29, 2016;

• The Defence did not serve the Crown 30 days in advance of the hearing, but only 17 days prior to the sentencing date; and

• The Applicant’s record does not contain all of the trial transcripts of all prior court appearances including discussions of adjournments, scheduling and selection of the next court date as required by the Practice Direction.

[44] The Crown conceded that the overall delays in this case, after subtracting Defence delays, exceed the 30-month ceiling, and is assessed at 38.5 months. The Crown acknowledges that the onus is on them to demonstrate exceptional circumstances. The Crown attributes 15.9 months to exceptional circumstances, bringing the total delay to 22.6 months, which is below the presumptive ceiling.

[45] The Crown lists the following as exceptional circumstances in this case:

• Unanticipated delays in analyzing the complainant’s computer data due to damage to the hard drive requiring repair at a significant cost needing special approval from the Crown Attorney’s Office (3.5 months);

• The pending retirement of Justice March requiring that the trial dates be changed to accommodate the new sitting judge, Justice Wright (1 month);

• Three incidents where the trial took longer than expected (8.3 months)

• The preliminary hearing did not finish on the day it was assigned and was adjourned to another date (1 month)

• The trial did not finish in the allotted 4 days (3.4 months)

• Matter adjourned for written submissions following the completion of the evidence (3.9 months)

• Extensions for written submissions (51 days for Defence submissions; 38 days for Crown submissions totalling 3.4 months)

[46] The Crown submits that, because the overall delay of 22.6 months, after subtracting exceptional circumstances, falls below the presumptive ceiling, the onus shifts to the Defence to demonstrate that it took meaningful steps to expedite the proceedings and the case took markedly longer than it reasonably should have.

[47] The Crown argues that the Defence has failed to show that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings nor did they raise the issue of delay at any time prior to serving the application before the Court.

[48] The Crown submits that, in addition to the reasons stated above, the overall delays are attributable to: resolution discussions, the unexpected complexity of submissions, reasonable steps taken by the Crown including offering earlier trial dates, a timely adjournment request and a clear plan of action regarding the damaged hard drive. The Crown submits that the total delay did not take markedly longer than it reasonably should have.

[49] In the alternative, the Crown submits that should the Court conclude that the onus remains on the Crown, the Crown’s position is that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed, that there was no unreasonable delay and that the institutional delay (14.8 months) is within the Morin guidelines of 12 to 18 months for a case that includes a preliminary hearing and a Superior Court trial.

[50] The Crown submits that the remaining time should be considered as neutral time and should not count against the Crown in a section 11(b) analysis.

[51] With respect to prejudice, the Crown acknowledges that the accused was subject to restrictive bail conditions which include not being in a place where alcohol was sold or dispensed except restaurants in the company of his surety. However, the Crown submits that this condition was agreed to by the accused, and at no time did he indicate any issues with his release conditions, nor request a review of his bail conditions.

[52] Finally, the Crown submits that child internet luring is a large concern in our communities and that societal interest outweighs any unreasonably delay or prejudice in this case.

Analysis

[53] Applying the Morin framework, I categorize and calculate the delays in the case at bar as set out in the appendix attached to these reasons.

[54] The total delay from the date of charge (September 26, 2012) to the final hearing date (January 30, 2017) is 52 months.

[55] Approximately 4.8 months can be attributed to Defence delays bringing the overall delay to 47 months.

[56] At this point the burden shifts to the Crown to justify the delay because it exceeds the presumptive ceiling of 30 months.

[57] The exceptional circumstances cited by the Crown total 15.9 months and include: technical difficulties to analyze computer data, lengthy resolution discussions, longer trial time than anticipated and a family emergency.

[58] In my view, none of these circumstances meet the test for exceptional circumstances because they are not reasonably unforeseen or unavoidable and may have been remedied, save and except for the one day delay caused by a family emergency. I also note that the Crown has not provided a detailed chronology or proof of the efforts made to expedite the resolution of the hard drive issue yet they attribute a great deal of institutional delay to this event.

[59] Further, I find that there are no transitional exceptional circumstances in this case. There is no issue of systemic delay. Although the trial took several days it was not a factually or legally complex case nor was it tried in a region where such delays are to be expected.

[60] The Morin guidelines of 8-10 months in Provincial Court and 6-8 months in Superior Court have been exceeded (11.3 months in OCJ and 9.0 months in SCJ). Moreover, the Morin guidelines for a trial with a preliminary inquiry were set at 14-18 months overall and have also been exceeded here (20.3 months for proceedings in OCJ and SCJ). Even under the Morin framework, a stay of proceedings would be warranted.

[61] The Morin analytical framework directs a court to consider how delay prejudiced an accused when considering whether to grant a stay.

[62] The Ontario Court of Appeal, at paragraphs 49 and 50 in R. v. Williamson, quoted Cromwell J. in R. v. Godin, who considered three forms of prejudice:

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence.

He went on to say that both actual prejudice and prejudice "inferred from the length of the delay" were relevant, noting, at para. 31:

As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn." Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

[63] I do not accept the position of the Crown that there is no evidence that the accused has suffered actual prejudice. Certainly there is inherent prejudice inferred from the length of delay. Mr. Swanson has lived for more than four years under a cloud of suspicion and difficult and restrictive workplace conditions.

[64] I accept that the accused suffered real and actual prejudice as set out at page 30 of the Defence factum filed in support of the application, where it is submitted that the prejudice suffered by the accused consisted of:

• restrictive bail conditions;

• loss of income;

• loss of the opportunity of a promotion and no deployment; and

• the stress and inconvenience of excessive delay.

[65] The final step in the analysis is to consider how to balance the interests of the accused with society’s interest in a trial on the merits.

[66] The role of the societal interest in the balancing process was commented on by Cronk J.A. in R. v. Seegmiller, (2004) 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.), at paragraph 25:

Where the nature of the allegation establishes a heightened societal interest in a trial on the merits, the absence of prejudice (particularly to the accused's fair trial interests) takes on added significance in the s. 11(b) calculus. The applications judge found that the suggested prejudice to Seegmiller was deserving of little weight, but failed to appreciate the significance of that assessment in a case like this one, where the societal interest in a trial on the merits is high. The applications judge also observed that "the degree of prejudice to the accused is not such as to require that the period of acceptable delay be shortened". This observation correctly recognizes that real prejudice can shorten the period of acceptable delay in a proper case; however, it fails to also recognize that the absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable.

[67] Weighing against this argument is the comment that society's interests should not permit the accused's "constitutional rights to be eviscerated" (see: R. v. S.H., [2008] O.J. No. 5736 at paragraph 74).

[68] I am very aware of the seriousness of the charge on which Mr. Swanson was convicted. Parliament has determined that sexual crimes of this nature must be deterred to protect society and promote public confidence in the administration of justice.

[69] In this case, Mr Swanson has been found guilty of count number four and is no longer presumed to be innocent. As mentioned above and in both Morin and Godin, the assessment of the reasonableness of the delay is not mathematical, but requires balancing the accused’s Charter protected rights with society’s interest in the prosecution of the offence on the merits.

[70] An individual has a right to a trial within a reasonable period of time. A complainant and the public have a right to prevent and deter crimes of this nature and the protection of society.

[71] Having carefully considered the facts of this case, the arguments of counsel and the directions of the Supreme Court, I find that the balance weighs in favour of Mr. Swanson’s right to a trial in a reasonable period of time over society’s interest in a trial on the merits. I find that Mr. Swanson’s section 11(b) Charter rights have been violated by unreasonable delay and that pursuant to section 24(1) of the Charter, granting a stay of proceedings would not bring the administration of justice into disrepute.

What is The Proper Endorsement?

[72] When a conviction has been entered prior to the finding of a section 11(b) violation the question arises: should the Court only enter a stay of the proceedings or should it also quash and set aside the conviction?

[73] In R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, the Supreme Court established that a stay of proceedings was the minimum remedy for a violation of the right to be tried within reasonable time, a significant and controversial remedy. The Court explained, at p. 615:

Where, however, on balancing the various factors, the court decides that the accused's right to be tried within a reasonable time has already been contravened, a stay of proceedings will be the appropriate remedy. It is not necessarily the only remedy, for additional remedies may be just and appropriate in the circumstances of the case. The stay is a minimum remedy, to which others may be added, such as, possibly, damages, if it be proved that there was malice on the part of the Crown and resulting prejudice.

[74] In Jordan, the Supreme Court made the following comment at paragraph 6:

Applying this new framework, including its transitional features, we conclude that the appellant was not brought to trial within a reasonable time. We would allow the appeal, set aside his convictions and direct a stay of proceedings.

[75] In R v Brace, 2010 ONCA 689, 104 O.R. (3d) 32 the Ontario Court of Appeal stated at paragraph 24 :

In all the circumstances I would find that the trial judge erred by finding that the appellant's s. 11(b) rights were not violated. I need not address the other ground of appeal. I would allow the appeal, quash the convictions and enter a stay of proceedings.

[76] Also, in R v Saktunananthan (2001) 2001 CanLII 24061 (ON CA), 143 O.A.C. 1 the Ontario Court of Appeal quashed the conviction and issued a stay of proceedings and stated at paragraph 67:

We have no doubt that the delay of forty-four and one-half months was prima facie excessive. Indeed, it was grossly excessive. The trial judge found that the appellants neither caused the delay, nor agreed to it. The delay was the result of a combination of factors which are attributable to the prosecution. The delay was not due to inherent difficulties in the case, but largely to systemic or institutional causes. It far exceeded the administrative guidelines discussed in Morin. It caused prejudice to the appellants. On balancing these factors, the result is clear. The delay cannot be justified. It is unreasonable. As a result, we would give effect to this ground of appeal. The convictions of each of the appellants, except Palanithurai, must be set aside and a stay of proceedings must be directed.

[77] Accordingly, having reviewed the above-noted cases, it is my order that the conviction entered on count four of the indictment be quashed, and that all proceedings are stayed.

Justice Patrick Smith

Released: January 30, 2017

Appendix A

Classification of delays – R v Swanson

*See paragraphs 21-26 of the judgment for details on the categories of classification based on the Morin legal framework

OCJ proceedings

Date	Event / Reason for adjournment	Classification	Total
September 26, 2012	Information sworn charging accused with 4 offences	Intake / Neutral	0
November 5, 2012	First appearance / provide disclosure	Intake / Neutral	40 days
November 26, 2012	Replacement of information / review of disclosure	Intake / Neutral	21 days
January 7, 2013	Adjourned for counsel pre-trial	Intake / Neutral	42 days
January 28, 2013	Adjourned for counsel pre-trial	Intake / Neutral	21 days
February 11, 2013	Adjourned for Crown to continue investigation on complainant’s cell phone and computer	Crown	14 days
February 25, 2013	Adjourned to continue Crown’s investigation	Crown	14 days
March 11, 2013	Adjourned to continue forensic analysis, counsel pre-trial	Intake / Neutral	14 days
March 25, 2013	Adjourned for Defense to reply to Crown’s letter (March 8) and receive update on forensic investigation	Intake / Neutral	28 days
April 22, 2013	Defence request to adjourn to reply to Crown letter	Defence	42 days
June 3, 2013	Adjourned for Defence to review May 28th Crown letter with client	Intake / Neutral	21 days
June 24, 2013	Adjourned by Defence, still seeking instructions from client	Defence	21 days
July 15, 2013	Adjourned by Defence, still seeking instructions from client.	Defence	14 days
July 29, 2013	Trial date set to April 22, 23 2014	Institutional	267 days
October 28, 2013	Trial date of April 22 no longer available for the court. Trial set to April 23 and May 6 2014	Institutional	13 days
March 24, 2014	Crown application to adjourn trial due to unanticipated issue with computer data. New dates set to August 19, 20 2014.	Crown	106 days
May 12, 2014	No judge available August 19, 20 so new trial dates necessary. Defence also applies to have preliminary hearing set to September 17, 2013	Institutional	28 days
September 17, 2014	Preliminary hearing did not finish, adjourned.	Intake / Neutral	5 days
September 22, 2014	Preliminary hearing adjourned to October 24th for same judge to continue PH	Institutional	31 days
October 24, 2014	Preliminary hearing completed. Accused ordered to stand trial in SCJ on 5/7 charges. Case adjourned to SCJ Assignment Court	Intake / Neutral	4 days

Total delay for OCJ

Classification	Total in days	Total in months
Intake / neutral	196	6.5
Institutional	339	11.3
Crown	134	4.4
Defence	77	2.5

Morin guidelines for institutional delays set to 8-10 months in OCJ (here: 11.3 months)

SCJ proceedings

Date	Event / Reason for adjournment	Classification	Total
October 28, 2014	Assignment Court. Adjourned for Judicial Pre-trial	Inherent / Neutral	73 days
January 9, 2015	JPT held. Charges adjourned for Defence to receive further instructions from accused	Inherent / Neutral	14 days
January 23, 2015	Adjourned for accused to decide whether to enter plea or set date for trial	Defence	67 days
March 31 / June 2, 2015	Trial dates originally set to April 4, 2016 on March 31st 2015, however on June 2, 2015, trial dates brought forward to December 7-10, 2015 for 4 day trial.	Institutional	251 days
December 7-10, 2015	Trial proceeds, starts one day late due to Crown family emergency. Trial adjourned on December 10th to finish at a later date.	Inherent / neutral	101 days
March 22, 2016	All evidence entered. Adjourned to Assignment Court for delivery of decision.	Inherent / neutral	45 days
June 7, 2016	Assignment Court to set date for delivery of decision	Institutional	21 days
June 28, 2016	Brief oral reply by Defence, adjourned for decision	Inherent / neutral	87 days
September 23, 2016	Accused found guilty on Count 4 of indictment. Adjourned to set date for sentencing hearing. PSR ordered.	Inherent / neutral	14 days
October 7, 2016	Sentencing hearing set to December 15, 2016.	Inherent / neutral	69 days
December 15, 2016	Adjourned for decision on section 11(b) application to January 30th 2017.	Inherent / neutral	45 days

Total delay for SCJ

Classification	Total in days	Total in months
Intake / neutral	448	14.9
Institutional	272	9.0
Crown	0	0
Defence	67	2.2

Morin guidelines for institutional set to 6-8 months in OCJ (here: 9 months)

Overall delays OCJ and SCJ

Classification	Total in days	Total in months
Intake / neutral	644	21.4
Institutional	611	20.3
Crown	134	4.4
Defence	144	4.8

For cases involving a preliminary inquiry as is the case here, the Morin guidelines for institutional delay would be in the range of 14 – 18 months (here: 20.3 months).

CITATION: R. v. Swanson, 2017 ONSC 710

COURT FILE NO.: CR-770-14

DATE: 2017/01/30

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

THOMAS KARSTON SWANSON

REASONS FOR JUDGMENT

P. Smith J.

Released: January 30, 2017