



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Stephen, 2012
    ONCA 411

DATE: 20120615

DOCKET: C52970

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Richard Stephen

Respondent

James K. Stewart, for the appellant

Lois I. Pineau, for the respondent

Heard and released orally: June 14, 2012

On appeal from the order of Justice Janet Wilson of the
    Superior Court of Justice, dated November 22, 2010, granting a stay of the
    criminal proceedings against the respondent.

ENDORSEMENT

[1]

This is a Crown appeal from the order of J. Wilson J. in which she
    granted a stay of the criminal proceedings against the respondent for breach of
    his right to be tried within a reasonable time pursuant to s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
. The order stayed proceedings in the
    Superior Court on two counts of armed robbery and two counts of robbery while
    armed with an imitation firearm.

[2]

The respondent was originally charged with two counts of armed robbery
    on June 15, 2006.  This case was not complex.  He first appeared in provincial
    court in Scarborough on June 16, 2006. It took 52-1/2 months to bring him to
    trial. Most of the time was taken up in the Ontario Court of Justice. From the
    date of his first appearance in the provincial court to his committal for trial
    on March 13, 2009 some 33 months had elapsed.

[3]

The time taken in the Superior Court is not an issue. However, the
    delays in the provincial court are unacceptable and offended the guidelines in
R.
    v. Morin
,

[1992]
    1 S.C.R. 771.  The appellant conceded that there were 19 months and 16 days of
    institutional delay and the respondent submitted that there were between 21 and
    24 months of institutional delay.

[4]

Counsel for the Crown has raised a number of issues concerning the
    application judges analysis of the reasons for delay and her finding that the
    respondent suffered actual prejudice.

[5]

The Crowns main argument is that the trial judge erred in her
    conclusion that the Crown Attorney should have been more proactive in dealing
    with the dilatory conduct of defence counsel.

[6]

The respondent was represented by two different counsel whom he
    discharged at various stages of the proceedings. He subsequently acted for
    himself until the argument of the s. 11(b) motion when he had the assistance of
amicus curiae
. There is little doubt that both defence counsel,
    particularly the first defence counsel, contributed to a significant part of
    the delay by reason of their failure to move the case ahead on a number of
    occasions. The first counsel failed to appear in court several times, resulting
    in the case being adjourned. A fair reading of the record indicates that on
    many occasions the Crown Attorney in the provincial court was completely
    frustrated by the lack of progress in this case and the delays resulting from
    the inattentiveness of defence counsel.

[7]

The application judge attributed some of the responsibility for defence
    counsels delay to the failure of the Crown to take a more aggressive stance to
    move the case forward. While we agree that the ultimate responsibility to move
    the case forward rests with the Crown, we are not persuaded that the Crown
    should be required to take responsibility for the failings of defence counsel.
    Defence counsel are the agents of their clients and it is they who must accept responsibility
    for their counsels conduct.

[8]

In any event, the delay in this case in the provincial court was simply
    far too long and unreasonable.

[9]

In respect of the application judges finding of actual prejudice,
    counsel for the Crown submits that the evidence did not support her conclusion.
    We see no basis to interfere. Even if she fell into error in respect of her
    findings of actual prejudice, this is a case in which prejudice can be inferred
    by reason of the unconscionable delay.

[10]

The
    appeal is therefore dismissed.

J.C.
    MacPherson J.A.

Robert
    P. Armstrong J.A.

Sarah
    Pepall J.A.


