





CITATION:
R. v. Khan, 2011
          ONCA 173



DATE:  20110303



DOCKET: C51454



COURT OF APPEAL FOR ONTARIO



Laskin, MacFarland and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Kevin Khan



Respondent



Karen Papadopoulos, for the appellant



David Butt, for the respondent



Heard: October 21, 2010



On appeal against the stay of proceedings imposed by Justice
          Frances P. Kiteley of the Superior Court of Justice, dated November 25, 2009.



Karakatsanis J.A.:



[1]

The Crown seeks to quash the stay ordered by the
    application judge on November 25, 2009, finding that the delay in hearing the
    case violated the accuseds right to a trial within a reasonable time, pursuant
    to s. 11(b) of the
Canadian Charter of
    Rights and Freedoms
.

[2]

At issue
    in this appeal is the application of s. 11(b) of the
Charter
to an ultimately minor player in the context of a large,
    complex prosecution.

[3]

The respondent surrendered to police in June
    2006 following a large, complex gang investigation called Project XXX, which resulted
    in the arrest of more than a hundred individuals. During the preliminary
    inquiry, the Crown decided to drop the criminal organization charges and to
    proceed against the respondent alone on the trafficking and conspiracy to
    traffic charges. The respondent was committed for trial in February 2008. The
    first trial was declared a mistrial in March 2009, due to no fault of either
    party, and a new trial was scheduled for November 2009.

[4]

The application judge framed the issue as
    whether it was acceptable for the respondent to be pulled along through the
    courts at the pace of the complex prosecutions of Project XXX. She found that
    the delay in the Ontario Court of Justice was attributable to the inherent time
    requirements of this complex case. The application judge also found that, on
    this record, it was reasonable for the Crown to make the decision to proceed
    alone against the respondent during the preliminary hearing. However, she found
    that after this became a relatively simple case, the Crown had an obligation to
    accelerate the trial in the Superior Court of Justice to recognize the delay
    that had occurred prior to committal. The application judge treated the entire
    time in the Superior Court of Justice as Crown or systemic delay. She found
    that the cumulative effect of 41 months in both courts was a violation of the
    respondent
s right to be tried
    within a reasonable time
.

[5]

The application judge correctly referred to the
    analytical framework set out by the Supreme Court of Canada in
R. v. Morin
, [1992] 1 S.C.R. 771.  However, she erred in failing to characterize
    significant periods of delay in the Superior Court of Justice as neutral delay.
    These errors led the application judge to find that the respondents
s.11(
b)
Charter
right had been infringed. However, properly characterized, there was no
    unreasonable delay in this case.

[6]

For the reasons that follow, I would allow the
    appeal, quash the stay and remit the matter back to the Superior Court of
    Justice for trial.

Background Facts

[7]

The respondent was charged in May 2006 following
    a large, complex gang investigation entitled Project XXX. The respondent
    surrendered on June 15, 2006. He was charged with drug trafficking, conspiracy
    to traffic in cocaine at the kilogram level and participating in a criminal
    organization. The evidence against him arose from authorized wiretap recordings
    of telephone conversations between the respondent and two other alleged
    co-conspirators.

[8]

There were numerous separate disclosure events
    throughout the fall and winter of 2006-2007, by which time the respondent had
    received the bulk of the evidence related to his charges. Additional disclosure
    events continued during the preliminary hearing and prior to trial. In total,
    fifty disclosure packages were delivered to the respondent.

[9]

The preliminary hearing for the respondents
    group was set on February 2, 2007 for October 22, 2007.

[10]

The two other alleged co-conspirators in the
    trafficking charges entered guilty pleas in April and June of 2007.

[11]

By July 12, 2007, so many accused had been
    removed from the prosecution that the Crown laid
a new
information combining some of the prior groups. The respondent was charged
    alone in the conspiracy charges and he was jointly charged with 12 other
    accused for participating in the activities of a criminal organization.

[12]

The preliminary inquiry began on October 22,
    2007 in the Ontario Court of Justice, with evidence specifically relating to
    the respondent commencing November 19, 2007. On November 20, 2007, counsel filed
    a Statement of Agreed Facts and advised that the Crown would not
proceed
with the criminal organization charges against the
    respondent. At the request of defence counsel, the respondents committal for
    trial was deferred to February 6, 2008.

[13]

On February 6, 2008, the Crown formally withdrew
    the criminal organization charge and the respondent was committed for trial on
    the remaining two counts. A new indictment dated February 15, 2008, severed the
    respondent from the other accused in Project XXX.

[14]

The respondent appeared in the Superior Court of
    Justice, along with the other accused from Project XXX, on March 19, 2008 and
    he was remanded to May 12, 2008. At that appearance, the defence indicated
    there would be no
Garofoli
application challenging the wiretap authorization. The respondent was remanded
    to the larger group pre-trial on June 5, 2008 and an individual pre-trial for
    June 17, 2008. The respondent failed to appear on June 17 but appeared on June
    26, at which time the trial date was scheduled to commence on March 23, 2009
    for three weeks. The defence was unavailable for a trial date that was offered
    for three weeks earlier.

[15]

On March 23, 2009, no trial judge was available
    due to a conflict and Crown counsel was ill. The case was adjourned on consent
    for two days, to March 25. On that day, the trial commenced and the Crown filed
    an Agreed Statement of Facts in an effort to expedite the proceedings. After
    one day of evidence, the trial judge declared a mistrial. Neither party was
    responsible for the mistrial.

[16]

Although dates for the retrial were available as
    early as mid-June 2009, the defence declined on the basis that it wished to
    order transcripts to support an 11(b)
Charter
application. Defence counsel was unavailable for trial dates offered in late
    June and late August 2009. The re-trial was scheduled for November 23, 2009,
    the first date for which defence counsel was available for a two-week trial.

[17]

The respondent filed his 11(b) application in
    October 2009. The application judge found that the respondents s. 11(b) rights
    had been violated and stayed the proceedings on November 25, 2009.

Analysis

[18]

The standard of review for the application of
    the
Morin
factors and the
    characterization and allocation of various periods of time in an 11(b) analysis
    is correctness. However, underlying findings of fact are reviewed upon a
    standard of palpable and overriding error: see
R. v. Schertzer
(2009), 248 C.C.C. (3d) 270 (Ont. C.A.), at para.
    71.

[19]

Section 11(b) of the
Charter
aims to protect both the individual rights of the accused 
    the right to security of person, the right to liberty and the right to a fair
    trial  and the collective rights of society to have criminal charges dealt
    with on the merits:
Morin
, at pp.
    786-87.

[20]

Whether the delay is unreasonable is assessed by
    looking at the length of the delay, less any periods that have been waived by
    the defence, and then by taking into account the reasons for the delay, the
    prejudice to the accused, and the interests that s. 11(b) seeks to
    protect:
R. v. Godin
, [2009] 2 S.C.R.
    3, at para. 18.

[21]

Morin
requires the court to characterize the reasons for the delay, including a)
    inherent time requirements, b) actions of the accused, c) actions of the Crown,
    d) limits on institutional resources, and e) any other reasons for delay. Mathematical
    or formulaic approaches to s. 11(b) are to be avoided. However, an effective,
    holistic, and qualitative assessment of the total period of delay and the
    reasons for the delay requires an evaluation of the various segments of time
    within this period: see
Godin
, at
    para. 18, citing Sopinka J. in
Morin
,
    at p. 787.

[22]

The Supreme Court of Canada in
Morin
offered guidelines to assist the
    courts in assessing reasonable systemic delay.  The court suggested a guideline of eight to ten months as acceptable institutional
    delay in the provincial courts and a guideline of six to eight months as
    acceptable institutional delay in the superior courts, for a total guideline
    period of 14 to 18 months. These are guidelines, not limitation periods, and
    they will yield to other factors. The reasonableness of the delay will also
    depend on the degree of prejudice to the accused.

[23]

Clearly, the overall delay of 41 months to trial
    in this case is sufficient to raise the issue of reasonableness and to warrant
    an inquiry into the reasons for the delay and any prejudice that arose as a
    result. Accordingly, it was incumbent upon the application judge to examine the
    reasons for the delay.

[24]

In this case, the application judge failed to identify
    a neutral intake period in the Superior Court of Justice and to properly
    allocate the reason for the delay following the mistrial.

[25]

As a result, it is necessary to characterize and
    analyze the various periods of delay in this case. I set out below my
    conclusions relating to the reasons for the delay in the provincial court and
    in the Superior Court of Justice.

Reasons for the Delay  Ontario Court of
    Justice

[26]

The application judge found that the entire 20
    months in the Ontario Court of Justice was acceptable delay due to the inherent
    requirements of a complex mega prosecution. She did not find that the Crown was
    unreasonable in failing to sever the accused from the larger prosecution until
    the preliminary inquiry held on November 20, 2007.

(i)   Conduct
    of the Crown

[27]

The application judge noted that inherent time
    requirements depend upon the complexity of the case. She assessed the time
    spent in the Ontario Court of Justice on a global basis, addressing the
    respondents key submissions that the Crowns failure to assess the strength of
    the evidence against him and to sever him from the larger prosecution at an
    earlier stage, meant that the respondent unnecessarily endured the lengthy
    intake and inherent delays of a complex case that was not his.

[28]

In particular, the respondent submitted on the
    application, and on appeal, that the case against him was not complex, that the
    Crown had an obligation to conduct comprehensive post-charge screening, and
    that the Crown was responsible for the delay by failing to scrutinize the
    evidence against him many months earlier, particularly after the charges against
    his co-accused were resolved. He argues that if the Crown had done so, it would
    have withdrawn the criminal organization charges and proceeded solely against
    the respondent at a much earlier time, instead of pulling him along through the
    courts at the pace of the larger prosecution.

[29]

However, the application judge did not accept
    the factual premise of that submission. She noted that, in theory, the decision
    to withdraw the criminal organization charges could have been made earlier had
    the Crown more critically analyzed the strength of the evidence against the
    respondent. However, she found that on this record it was reasonable for the
    Crown to make the decision to proceed alone against the respondent when it did
    so during the preliminary inquiry. She found that the time to committal was
    reasonable.

[30]

The respondent submits that while large, complex
    prosecutions may be a necessary response to the increasing sophistication of
    organized criminal activity, they place serious responsibilities on the Crown
    to ensure that accuseds
Charter
rights are respected. I agree with counsel for the respondent that these
    mega-project prosecutions require the Crown to diligently and critically assess
    the evidence to determine whether an accused whose involvement is minor, discrete
    or disconnected from the larger prosecution can be tried separately and more
    quickly. However, the court should be hesitant to second-guess the Crowns
    decisions on how to proceed and whether and when to withdraw charges,
    particularly in complex prosecutions where decisions are contingent upon
    interdependent circumstances.

[31]

I find no reason to disturb the application
    judges factual assessment that the Crown was not responsible for delay in the
    provincial court on this record.

(ii) Intake period: June 15, 2006 to
    February 2, 2007 (7 months, 18 days)

[32]

There are inherent intake requirements for the
    preparation of a case for trial, including bail hearings and disclosure. A more
    complex case and more extensive requirements will serve to excuse longer periods
    of delay. The intake period ends when both parties are ready for trial and the
    court cannot accommodate them. In this case, the respondent surrendered to
    police on June 15, 2006 and the preliminary inquiry date was scheduled on
    February 2, 2007.

[33]

It is clear that this began as an extremely
    complex case, involving an extensive police investigation, numerous co-accused,
    wiretap evidence and criminal organization charges. Given the complexity of the
    case and the number of accused and charges laid, the intake period required
    before the parties were in a position to schedule a date for the preliminary
    hearing was justifiably longer. I agree with the Crowns submission that the
    period of 7 months, 18 days between the date the respondent surrendered to the
    police and the day on which the preliminary inquiry was scheduled, was a
    neutral intake period.


(
iii
) Inherent:
    February 2, 2007 to July 12, 2007 (5 months, 10 days)

[34]

Obviously, the parties were not ready to proceed
    with a preliminary inquiry when the date was first set. The bulk of the
    disclosure was complete in June 2007. The guilty pleas of the co-conspirators
    occurred in April and June of 2007 and the Crown reorganized the remaining
    accused and laid
a new
consolidated Information
    against the respondent and 13 other accused on July 12, 2007. I would therefore
    agree with the Crowns submission that the five months, ten days from the date
    the preliminary inquiry was first scheduled to the laying of the new
    Information, was due to the inherent time requirements of the case.


(
iv
)
    Institutional: July 12, 2007 to October 22, 2007 (3 months, 10 days)

[35]

It is not clear on the record when the parties
    were fully prepared to proceed with the preliminary hearing and if the
    commencement of the preliminary hearing was delayed due to lack of
    institutional resources. Some of the period leading up to the preliminary
    hearing after July 12, 2007, would likely be attributable to institutional
    delay. Although the record does not specifically address this issue, the Crown
    concedes that the period between July 12, 2007 and the commencement of the
    preliminary hearing on October 22, 2007 was institutional delay.

[36]

The application judge found that the delay in
    the Ontario Court of Justice was due to the inherent time requirements of a complex
    prosecution. However, given the Crowns concession in favour of the respondent,
    I would allocate institutional delay of three months, ten days in the
    provincial court.


(v) Inherent: October 22, 2007 to February
    6, 2008 (3 months, 15 days)

[37]

There is no dispute that the preliminary hearing
    and the respondents committal for trial were due to the inherent requirements
    of the case.


(vi) Summary
: Ontario Court of Justice

[38]

The respondent spent almost 20 months in the
    provincial court from the date of his surrender to the date of his committal
    for trial. The various time periods are summarized as follows:

June 15, 2006 to February 2, 2007: Intake period: 7
    months, 18 days

February 2, 2007 to July 12, 2007: Inherent: 5 months, 10 days

July 12, 2007 to October 22, 2007: Institutional: 3 months, 10
    days

October 22, 2007 to February 6, 2008: Inherent: 3 months, 15
    days

[39]

Thus, 16.5 months of the delay in the Ontario
    Court of Justice was neutral, due to the intake period and the inherent
    requirements of the case. While this is a lengthy period of time, both the
    intake period and the inherent requirements of a complex, multi-accused
    prosecution are justifiably longer.

[40]

The application judge accepted that on this
    record, the respondent was justifiably tied to this complex prosecution and
    that the time to committal was reasonable. In other words, until committal, it
    was reasonable that this case travel at the much slower pace of the complex
    mega prosecution.

[41]

I agree. The institutional delay of three
    months, ten days, is below the range of the
Morin
guidelines for the provincial court.

Transition - Intake: February 6, 2008 to
    March 19, 2008 (1 month, 13 days)

[42]

The application judge treated the period of
    transition from the Ontario Court of Justice to the Superior Court of Justice,
    as neutral. I agree and would characterize this period as part of the neutral
    intake process in the Superior Court of Justice (see
Schertzer
, at para. 96).

Reasons for the Delay  Superior Court of
    Justice


[43]

The application judge addressed a number of
    concerns about how matters proceeded after the Crown appropriately made the
    decision that the respondents case should be severed and progress ahead of the
    group trial. Ultimately, she treated the entire time in the Superior Court of
    Justice as institutional or Crown delay. In my view, it is appropriate to
    deduct neutral time periods for intake or for the delay caused by the mistrial.
    The relevant time periods are set out and analyzed below.

(i)

Intake:
    March 19, 2008 to June 17, 2008 (2 months, 29 days)

[44]

The respondent continued to be scheduled along
    with the larger group prosecution for his first two appearances in the Superior
    Court of Justice. At the respondents first appearance on March 19, 2008, he
    was remanded without comment to May 12, 2008. On that date, the respondent
    indicated that he would not be bringing a
Garofoli
application to challenge the wiretap authorization. He was remanded to a group
    judicial pre-trial scheduled for June 5, 2008 and an individual pre-trial for
    June 17, 2008, at which time the parties were ready to set a date for trial.

[45]

The application judge measured the time to trial
    in the Superior Court starting from the first appearance in the court on March
    19, 2008, and not from the conclusion of the judicial pre-trial held on June
    26, 2008. She noted that the Crown took the position that the first trial date
    was set eight months after the set date on June 26, 2008, and
that
eight months was within the normal accepted range for
    trial dates in the Toronto region. However, at para. 39, she concluded:

While one cannot expect a trial date to be set on
    the first appearance because a Judicial Pre-Trial is required, the time it
    takes from arrival in the Superior Court to the trial date is what is
    important, not the time from the conclusion of the Judicial Pre-trial (in this
    case June 17, 2008) to the trial date. It would be ironic if the time involved
    in holding a Judicial Pre-Trial (a procedural step designed to identify issues
    and shorten the trial) served to extend the time within which an accused is
    entitled to a trial date.

[46]

As noted in
Morin
at p. 793, where a preliminary hearing is required, there will be additional
    intake periods with further pre-trial meetings and added court dates. An
    additional period for inherent time requirements must be allowed for at this
    second stage.

[47]

The Crown submits that an intake period of
    almost 3 months was required from the first appearance in the Superior Court of
    Justice to the judicial pre-trial and set date scheduled for June 17, 2008.

[48]

The respondent takes the position that the application
    judge was justified in excluding the intake period in her tally of toxic
    delay because the respondent was unnecessarily required to endure the extended
    Superior Court intake period for the much slower mega-project prosecution. He submits
    that he was unnecessarily remanded before a trial date was set. Thus, he
    argues, the adjournments should not be treated as neutral.

[49]

In
R. v. Topol
(2008), 236 O.A.C. 1 (C.A.), the accused was charged along with three others in
    a complex fraud case. The Crown consistently consented to adjournments to delay
    in setting a trial date in order to accommodate the schedules of counsel for the
    co-accused. This court upheld the application judges decision not to consider
    the delay caused by the adjournments as neutral, noting that as the time period
    lengthened, the Crown had to decide between refusing to accommodate the other
    counsel
or
proceeding with the appellant separately
    from the other accused:
Topol
, at
    para. 13.

[50]

In
R. v. Whylie
(2006), 208 O.A.C. 247, this court held that the seven and a quarter month
    delay caused by the Crown adjournment of the trial date, so that the accused
    could be tried together with another accused, was not neutral given that the Crown
    had previously agreed to a severance of the accuseds trial. The accused
    objected to the adjournment and asserted his s. 11(b) right at three separate
    court appearances.

[51]

These cases can be distinguished. In this case,
    there was no unjustifiable delay in setting a trial date. The respondent was
    remanded once, on his first appearance, without comment. A pre-trial was set on
    the second appearance and the parties were in a position to set a trial date
    the month following. The Crown had proposed to consolidate any
Garofoli
challenges to avoid wasted
    resources and inconsistent decisions. The Crown did not seek to delay the
    setting of a trial date in order to try the accused with the larger
    prosecution. The respondent did not object to any remand or return dates.

[52]

A trial date could not be set until the defence
    indicated whether it would challenge the wiretap authorization. The application
    judge noted that the respondent could not be expected to take a position with
    respect to any
Garofoli
challenge one
    way or the other until he arrived in the Superior Court. Given the inherent
    nature of this case, it was reasonable that the respondent consider its
    position on the wiretap authorization. It was also reasonable that the
    respondent be remanded from March 19, 2008 to May 12, 2008, with the larger
    group, until his position with respect to the wiretap authorizations was
    clear.  Thus, I do not find that the
    Crown was responsible for any delay in this period. It was part of the inherent
    requirements of the intake period in this case.

[53]

In this case, the respondent consented to the
    pre-trial dates and there was no indication of any delay in obtaining available
    dates for a pre-trial. The pre-trial in this case was part of the intake
    process. A judicial pre-trial is designed to streamline the issues if possible,
    to identify an accurate estimate of the required trial time, and to help ensure
    a fair and efficient trial. While a pre-trial may add several weeks to a
    neutral intake period in a particular case, it may well result in an earlier
    trial date or a shorter trial.

[54]

It may be that an individual pre-trial could
    have been scheduled a couple of weeks earlier. However, defence counsel agreed
    with the presiding judges suggestion that an individual pre-trial be scheduled
    at the large group pre-trial on June 5, 2008.

[55]

This matter was not ready to proceed separately
    for trial until the issue of whether the wiretap authorization would be
    challenged was finally resolved and a judicial pre-trial was held. Thus, I
    would characterize the time period leading up to the scheduled pre-trial and
    set date as neutral delay attributable to the intake and the inherent
    requirements of the case.

(ii)
    June 17, 2008 to March 23, 2009: (1 month, conduct of defence; 8 months,  institutional delay)

[56]

There is no dispute about this time period. The
    parties agree that approximately one month of this time period was attributable
    to the conduct of the defence. The accused failed to attend at his scheduled individual
    pre-trial on June 17, 2008, which had to be re-scheduled to June 26, 2008. As
    well, the defence was offered the earliest trial date of March 2, 2009, but was
    unavailable until March 23, 2009.

[57]

The remainder
    of the period of just over eight months, from the set date on June 26, 2008
    until the first available trial date on March 2, 2009, was institutional delay.

(iii) March 26, 2009 to November 23, 2009:
    Mistrial to Re-trial Date

[58]

The mistrial was declared on March 26, 2009.
    Neither party was responsible. The trial judge at that time was presiding in another
    unrelated matter in which the leading case relied upon by defence counsel was a
    decision involving former drug charges against the respondent. Both counsel
    were concerned that there could be a reasonable apprehension of bias and made a
    joint submission for a mistrial.

[59]

At this point, the defence raised for the first
    time a concern about delay and advised that it was considering a
Charter
application based upon
    unreasonable delay. The Crown agreed to remove the bail curfew restrictions in
    order to reduce prejudice to the respondent.  At the request of the defence, the matter was put over to April 1, 2009
    to set a new trial date.

[60]

On April 1, 2009, the court was told that dates
    starting mid-June 2009 would be available but counsel expressed concern that
    transcripts would not be ready for the accuseds s. 11(b) application. The
    defence acknowledged that it was offered trial dates in late June and in late
    August. The Crown confirmed that the witnesses were available. However, defence
    counsel advised that he would not be available for the June or August dates
    because of their proximity to the long weekends and that his first availability
    thereafter for a two-week trial was November 23, 2009.

[61]

The Crown submits that the application judge
    erred in failing to attribute the first three months following the mistrial as
    inherent delay and the following five months as attributable to the defence. Alternatively,
    the Crown submits that the entire period was neutral due to the inherent
    requirements of the case.


[62]

The respondent submits that the court was right
    to disregard the June dates because of the unavailability of the transcripts
    for the s. 11(b) application and that the defence is not responsible for delay
    merely because counsel is not available for the first offered date in a rescheduled
    case. Given the respondents numerous appearances over 35 months before the first
    trial date, the respondent argues that the application judge was right not to
    attribute post-mistrial delay to defence.

(a)

March
    26, 2009 to June 23, 2009: Inherent (3 months)

[63]

This court has held that where a mistrial
    results from unforeseeable events not attributable to the Crown, the resulting
    delay should be treated as neutral:
R. v.
    J.J.
(2008), 233 O.A.C. 317, at para. 3;
R. v. Batte
(2000), 49 O.R. (3d) 321, at para. 61; and
R. v. Pizzardi
(1994), 72 O.A.C. 241, at
    paras. 5-6.
Such
unfortunate events necessarily
    increase the inherent time requirements of the case. The sole purpose of the
    mistrial in this case was to preserve the appearance of fairness and impartiality.
    Thus, at a minimum, the three month period that followed the mistrial until the
    first date offered for re-trial in June, 2009 should have been treated as
    neutral for purposes of the s. 11(b) analysis.

[64]

The court was told that dates starting in mid-June
    would be available but that there was concern that transcripts would not be
    ready for the accuseds s. 11(b) application. In my view, the defence was
    entitled to bring the
Charter
application and to seek sufficient time to permit the production of transcripts.
    However, the defence cannot thereby seek to make the Crown responsible for the
    resulting delay. A reasonable period of time to obtain the transcripts is
    inherent to the case and therefore neutral. There is no suggestion on this
    record that there was any defence delay or systemic delay in obtaining the
    transcripts. I attribute this time period to the first available trial date to
    the inherent time requirements of the case.


(b)
          June 23, 2009 to November 23, 2009: Neutral
    (5 months)

[65]

The application judge considered this time period
    under the heading Waiver. I agree with her conclusion that the delay after
    the mistrial was not waived by the defence.

[66]

There was nothing about the conduct of the
    defence that implied an intention to waive his
Charter
protection. Indeed, the defence raised the issue of
a
s. 11(b) application at the mistrial and refused mid-June
    dates because transcripts would not be ready. While there was no defence waiver
    following the mistrial, the conduct of the defence should nonetheless be
    considered in determining the reasons for delay.

[67]

The application judge did not feel based upon
    her experience in Practice Court that the presiding judge would necessarily
    have set a trial date for either of the proposed dates in late June or August.
    Further, she noted that defence counsel, having made
himself
available for the first trial date, could not be expected to make himself
    available instantly.  In my view, these
    reasons do not justify treating this period as systemic or Crown delay.

[68]

While a judges experience in court procedures
    may be helpful to the s. 11(b) analysis, the court must be careful not to
    engage in speculation as to the systems ability to accommodate the trial or
    the priority assigned to the particular case;
R. v. Hussey
(2008), 233 O.A.C. 157 (C.A.), at paras. 4-6. Further,
    it is important that the parties be advised of the judges view so that they
    have an opportunity to address the factual foundation in the application. In
    this case, there was no discussion on the record that the court could not
    accommodate the dates offered and there was no evidence that the practice court
    judge would have necessarily refused to set a trial date for late June or late
    August in these circumstances.

[69]

I agree with the application judge that defence
    counsel cannot be faulted for not being available on the first available trial
    date. In
Godin
, the Supreme Court of
    Canada stated at para. 23: Scheduling requires reasonable availability and
    reasonable cooperation; it does not, for s. 11(b) purposes, require defence
    counsel to hold themselves in a state of perpetual availability. The court
    agreed that, in circumstances where the Crown was responsible for the case
    having to be re-scheduled, it was not reasonable to hold that the delay clock
    stops as soon as a single available date is offered to the defence and is not
    accepted.  The court noted at para. 5
    that the case was straightforward; virtually all of the delay was attributable
    to the Crown and was unexplained; and the defence had attempted unsuccessfully
    to move the case ahead faster.

[70]

However, the circumstances in this case are very
    different from those in
Godin
. In
    this case, the Crown was not responsible for the mistrial and therefore was not
    responsible for the delay resulting from the need to re-schedule the trial date.
    No periods of delay were attributable to the conduct of the Crown. Furthermore,
    although the application judge found that this was not a case where the defence
    was impeding the trials
progress,
the defence
    appeared to be content with the pace of this litigation until the mistrial was
    declared. Finally, it is clear that the Crown, mindful of the issue of delay,
    made every effort to find an early trial date and advised that the Crown
    witnesses were available at any time.

[71]

While there are special scheduling challenges
    for counsel when a matter is rescheduled, it is wrong to attribute delay to the
    system when, in fact, the system could have accommodated an expeditious trial:
J.J.
, at para. 3. In this case, the
    mis-trial was the fault of neither party and resulted in some inherent neutral
    delay. Although, defence counsels first available date for trial appears to
    have been almost eight months after the mis-trial, it is not necessary to
    determine whether some part of that delay is attributable to the defence rather
    than to the inherent requirements of the case. In the circumstances of this
    case, the time between the first available date and the retrial date is neutral.
    As a result, I conclude that the application judge erred in treating the period
    after the mistrial as Crown or systemic delay.


(iv)   Conduct
of the Crown

[72]

The application judge appears to have considered
    the Crown responsible for the entire time period in the Superior Court of
    Justice. She held at para. 41 that having regard for the overall period of 41
    months to trial, the Crown had an obligation to attempt to accelerate the trial
    to recognize the delay that had occurred prior to committal due to the inherent
    time requirements of the case.

[73]

There is no reason to attribute the delay in the
    Superior Court of Justice to the conduct of the Crown. Intake requirements are
    inherent requirements in trying a case in the Superior Court of Justice. The
    Crown did not delay the setting of a trial date. The Crown was in no way responsible
    for the mistrial and made every effort to offer early dates for the re-trial. Once
    the respondents case was properly severed from the rest of the
    mega-prosecution, the Crown acted diligently and appropriately in the
    circumstances. I do not agree that the Crown failed to respect the respondents
    right to trial within a reasonable time.

Summary: Superior Court of Justice

[74]

The respondent spent almost one and a half
    months in transition between the courts and approximately 20 months in the
    Superior Court of Justice. The various time periods are summarized as follows:

February 6, 2008 to March 19, 2008: Transition - Intake: 1
    month, 13 days

March 19, 2008 to June 17, 2008: Intake: 2 months, 29
    days

June 17, 2008 to March 23, 2009: Conduct of defence  1 month;
    institutional delay  8 months

March 26, 2009 to June 23, 2009: Inherent: -3 months

June 23, 2009 to
    November 23, 2009: Neutral: 5 months

[75]

In total, the respondent spent approximately
    21.5 months in the Superior Court of Justice, including the transition intake
    period between the two courts. Of this total approximately eight months is
    attributable to institutional delay.

Prejudice

[76]

The application judges findings on prejudice
    were not challenged on appeal.

[77]

The application judge found that the total delay,
    together with the pre-trial bail restrictions in place, had impacted the
    respondents business, his mental state and his relationship with his children.
    She found that the respondent suffered prejudice to his professional and
    personal life as a result of the onerous terms from June 2006 to February 2007
    and then more liberal but still challenging terms from February 2007 to March
    2009. She made no finding of prejudice during the period of time between the
    mistrial and the second trial date. She was satisfied that the respondent
    experienced the sort of prejudice that is a prerequisite to obtaining a remedy
    for the violation of his rights.

Assessment of the reasonableness of the
    delay

[78]

The second trial date was scheduled to occur approximately
    41 months after the respondent surrendered to police in June 2006. He was under
    house arrest for the first eight months and under curfew from February 2007
    until the mistrial in March 2009. He suffered real prejudice in his personal
    and professional life as a result of the bail restrictions. However, there was
    no indication that the respondents right to a fair trial was prejudiced.

[79]

The initial complexity of
this
    case justified lengthy periods
of neutral delay based upon the inherent
    requirements of a mega prosecution. Until the respondents committal to trial, he
    was reasonably tied to the larger complex prosecution that included criminal
    organization charges. Further, it was reasonable that the respondent be
    scheduled along with the larger group prosecution for his first two appearances
    in the Superior Court of Justice until it was clear in May 2008 that there
    would be no challenge to the wiretap authorization. Until the first trial date
    was set, two years after he surrendered to police, the respondent had suffered
    at most three months, ten days of systemic delay, which is well within the
    range of the
Morin
guidelines for the
    provincial court. The balance of the time spent in the Ontario Court of Justice
    was due to the inherent requirements of a complex multi-party prosecution
    dealing with wiretap evidence and criminal organizations.

[80]

This became a simple two-week case in May 2008,
    after the respondent arrived in the Superior Court and once it was clear that
    there would be no
Garofoli
challenge
    to the wiretap authorizations. The institutional delay experienced in the
    Superior Court until the first trial date was approximately eight months, which
    is at the top end of the
Morin
guideline.

[81]

Unfortunately, through no fault of either party,
    a mistrial was declared in March 2006. The defence did not complain about delay
    until the mistrial. Further, the eight month delay following the mistrial is
    not attributable to the Crown or to the system. Finally, there was no prejudice
    created by the bail terms during this latter period.

[82]

Although 41 months before the courts is a
    lengthy period of time, the delay was primarily due to the initial complexity
    of this prosecution and the subsequent mistrial. None of the delay in this case
    was caused by the Crown. Large group prosecutions play an important role in the
    administration of justice.  Not only do
    they conserve judicial resources, but there is also a societal interest in
    having these cases decided on their merits.

[83]

Viewed cumulatively, the institutional delay of
    11.5 months is less than the overall
Morin
guideline of 14 to 18 months for a two-stage process. Properly characterized,
    there was no unreasonable delay in this case.

Conclusion

[84]

I would allow the appeal, quash the stay and
    remit the matter to the Superior Court of Justice for re-trial.

RELEASED:  March 3,
    2011 JL

Karakatsanis
    J.A.

I
    agree John Laskin J.A.

I
    agree J. MacFarland J.A.


