



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Findlater, 2012
    ONCA 685

DATE: 20121012

DOCKET: C53639

Winkler C.J.O., Rosenberg and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Necho Findlater

Appellant

Mark Halfyard, for the appellant

Marcella Henschel, for the respondent

Heard: October 9, 2012

On appeal from the conviction entered on September 27,
    2011 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting
    with a jury.

ENDORSEMENT

[1]

The appellant appeals from his conviction for numerous weapons offences.
    The only ground of appeal is from the decision of MacDonnell J. dismissing his
    application for a stay of proceedings on the basis of unreasonable delay in
    violation of his rights under s. 11(b) of the
Canadian Charter of Rights
    and Freedoms
.  For the following reasons, the appeal is dismissed.

[2]

The appellant submits that the trial judge erred in his attribution of
    two periods of delay and in his treatment of prejudice. We begin with the
    attribution of delay. The appellant submits that the trial judge erred in
    characterizing the four months from the time of arrest until the date was set
    for a preliminary inquiry as intake or neutral. He submits that most of that
    delay was due to the Crowns failure to make timely disclosure, and in particular,
    to disclose the co-accuseds videotaped statement to the police.

[3]

In our view, the trial judge properly characterized this four months delay
    as intake or neutral. While not an overly complex case, some time was required
    to make disclosure. And, importantly, it is apparent that the delay in
    disclosure did not delay the proceedings. The transcript of proceedings and the
    correspondence show that the court and counsel would have been able to set a
    date for the preliminary inquiry without the disclosure actually being in the
    hands of the appellants counsel. There was then a short delay because the
    appellant did not attend personally and the court was unwilling to set a date
    for a preliminary inquiry until the appellant had elected his mode of trial. It
    was reasonable to attribute the entire four months to neutral intake.

[4]

The appellant also submits that the trial judge erred in attributing any
    of the delay to the defence after the case was not reached on the first trial
    date in February 2010. When the case had to be adjourned, counsel was offered
    the date of May 10, 2010. Defence counsel was not available because she already
    had a murder trial scheduled for that time. The next available date was
    September 14, 2010. The appellant accepted that date for trial. When the case
    was spoken to in February 2010, there was no suggestion that the appellant was
    prejudiced by the delay or that he was seeking an earlier trial date.

[5]

The trial judge attributed the entire delay from February to May 10,
    2010 to institutional delay. He then divided the four month delay from May 10
    to September 14th. He attributed two months to institutional delay and two
    months to the defence being unavailable to take advantage of the May trial
    date. Relying upon
R. v. Godin
, 2009 SCC 26, the appellant submits
    that the trial judge erred and that the entire period was institutional delay.

[6]

The trial judge attributed five of the seven month delay due to the
    adjournment as institutional delay. This was a reasonable allocation of delay.
    The trial judge took into account that defence counsel cannot be expected to be
    ready to accept any date offered and thus attributed most of the delay to lack
    of adequate institutional resources. But, he could also take into account that
    there was no suggestion that counsel wanted an earlier trial date or that the
    trial was being unreasonably delayed. It may be that these two months could
    more properly be considered to be neutral rather than defence delay, but that
    would not alter the s. 11(b) analysis.

[7]

As to prejudice, the principal submission by the appellant is that the
    trial judge erred in failing to consider that prejudice could be inferred from
    the 30 months delay from arrest to trial. The appellant filed an affidavit in
    attempt to demonstrate actual prejudice to his security and liberty interests. 
    There was no suggestion that his fair trial interests were prejudiced. The
    appellant was cross-examined on the affidavit before the trial judge. The trial
    judge rejected the allegations of actual prejudice. He explained why he did so
    and the appellant does not suggest that those finding were unreasonable.

[8]

We do not agree that the trial judge did not take into account any
    prejudice that could be inferred from the delay. The trial judge expressly
    acknowledged the prejudice to the appellants liberty interests by the strict
    bail conditions. But, he also fairly noted that each time the appellant sought
    to loosen the bail conditions, Crown counsel consented and that on the last
    occasion, the appellant waited several months before entering into the new
    recognizance. The trial judge did not find that the appellant did not suffer
    any prejudice, only that he had a tendency to overstate the problems. It was
    not that the trial judge found no prejudice, only that he had not established
    the degree of prejudice claimed. As he said:

Where an accused does not suggest that a proposed trial date is
    going to cause unacceptable prejudice and accepts that date without comment,
    its reasonable to infer that
significant
prejudice will not occur. I
    draw that inference in all the circumstances here. [Emphasis added.]

[9]

The trial judge did not err in his
    approach to prejudice. His reasons demonstrate that he applied the principles
    laid down in decisions from the Supreme Court of Canada and this court correctly.
    Accordingly, the appeal is dismissed.

Winkler C.J.O.

M. Rosenberg
    J.A.

Alexandra Hoy
    J.A.


