R. v. Collins; R. v. Pelfrey

Sopinka J. -- This is an appeal from the Court of Appeal for Ontario, [1994] O.J. No. 2303 (QL), which reversed the judgment of Cavarzan J. staying the proceedings by reason of unreasonable delay.

In their application for a stay, the appellants relied on three sources of delay:

(1)tardy and indifferent efforts to make disclosure resulting in a lengthening of the preliminary inquiry;

(2)failure to fix a trial date prior to committal for trial notwithstanding that the Crown was urged to do so, and when it was conceded that a committal was inevitable;

(3)adjournment of the trial at the request of the Crown which was without foundation and resulted in a delay of 4½ months.

The trial judge who heard the motion during which viva voce evidence was called made the following findings of fact:

I note, however, that notwithstanding the fixing of trial dates in this case and repeated requests by defense counsel for meaningful disclosure, disclosure was effected exceedingly slowly and with apparent reluctance or, at least, indifference.

. . .

The delay in getting the preliminary inquiry off the ground and completed is, therefore, attributable in large part to the inaction of the Crown.

. . .

I find as facts that as a result of the pre-trial of March 5, 1990, the Court and all counsel involved were preparing for the trial to commence on May 28, 1990; that this process was derailed at the instance of Crown counsel who advised the Supreme Court Office that the trial could not proceed; that the Crown did not have sufficient information on or before March 16th to justify taking that step unilaterally; and that there was sufficient time for the Crown, alerted by defence counsel's request for particulars to have obtained confirmation of Martin's status in time to have re-established the May 28th trial date.

. . .

I find as a fact, however, that Mr. Swanson did cause the delay from May 28th until October 10th, and that that delay was not justifiable in the circumstances.

. . .

As stated earlier in these reasons it is clear that there was delay by the Crown in making the requisite disclosure. Prior to the making of meaningful disclosure in mid to late July, 1989, defence counsel had no basis for determining that more than four days would be required to complete the preliminary hearing. This failure, in my view, accounts for the fact that the need for more preliminary hearing dates was not identified much earlier. Had meaningful disclosure occurred earlier, it is probable that a sufficient number of hearing dates would have been found to complete the preliminary inquiry before the end of 1989.

. . .

As noted at the outset, this application involves accused who were in custody for twenty-two and a half months. Mr. Ayre takes no issue with the fact that the accused made a concerted effort to obtain an early trial date, particularly from and after October 19, 1989. This is a relevant factor. [Emphasis added.]

The period of delay of 22 months was held by the trial judge to warrant an inquiry into the reason for delay and no issue is taken with this finding. The trial judge then considered the relevant factors and concluded that the delay was unreasonable.

In my view, although I have reservations about the application by the trial judge of some of the factors, having regard to the findings to which I have referred and balancing the relevant factors, the trial judge came to the right conclusion.

In R. v. Morin, [1992] 1 S.C.R. 771, at p. 788, the majority stated:

The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable.

With respect to the requirement of an explanation by the Crown of a long period of adjournment, a unanimous Court in R. v. Smith, [1989] 2 S.C.R. 1120, at pp. 1132-33, stated:

For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. [Emphasis added.]

This passage was expressly affirmed in Morin, supra, but the majority went on to summarize the actions of the Crown which may require explanation, at p. 794:

This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc.

The respondent has quite properly conceded in its factum that the delay due to actions of the Crown included 4½ months relating to the adjournment and some part of a delay of 5½ months relating to the prolongation of the preliminary hearing as a result of late disclosure. Accordingly, delay due to the actions of the Crown and in respect of which an explanation was required was in the order of 5 to 10 months.

This is not a case which turns on the length of institutional delay that will be tolerated owing to the scarcity of resources. Rather, the delay is attributed to actions on the part of the Crown. The appellants were both incarcerated for a period of 22 months. A verdict of acquittal was directed at the first trial which was set aside on appeal and they face a second trial. In my view, a request for a lengthy adjournment with respect to a case in which the accused are in custody and have been pressing for an early trial should be based on solid grounds. I agree with the submission that the grounds for the Crown's request were inadequately investigated, and the finding of the trial judge that the matter was compounded by the Crown's failure to respond to the entreaties of defence counsel which, if heeded, would have enabled the trial to proceed on schedule. In these circumstances, the trial judge was right to conclude that the delay occasioned by the adjournment was unjustified. This, coupled with the delay caused by late disclosure, fully justified the conclusion that the delay was unreasonable and that violation of the appellants' rights under s. 11(b) of the Canadian Charter of Rights and Freedoms warranted a stay of proceedings.

I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of Cavarzan J.