R. v. MacArthur, 2013 ONCJ 68

Information No. 11 – 182 Citation: R. v. MacArthur , 2013 ONCJ 68 ONTARIO COURT OF JUSTICE (at Cayuga, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - TERRY MacARTHUR Ms. A. Paparella for the Crown Mr. A. Little for Terry MacArthur Reasons for Judgment on an 11(

b) Application NADEL, J.: Introduction [ 1 ] On April 6, 2011 the defendant was charged with impaired driving and being over 80 . An information was sworn on April 13, 2011. The allegations arise from a single vehicle property damage accident. The Crown alleges that the defendant was the sole occupant of the vehicle.

On January 30, 2013 this trial started with the defendant’s arraignment and plea of not guilty to the impaired driving count. [1] If that charge survives this application then a two-day trial will commence on March 7, 2013 and continue on May 1, 2013. [ 2 ] The period between the swearing of the information and the anticipated conclusion of the trial is 24 months and 19 days. This period is patently excessive for a

summary conviction prosecution.

An examination into the reasonableness of that period is called for. [ 3 ] A brief partial history of the matter follows: • on May 27, 2011 a first trial date was set for a half-day trial on September 14, 2011; • on September 27, 2011 a second trial date was set for a one-day trial on March 28, 2012; • on February 28, 2012 a third trial date was set for a two-day trial on November 15 and 16, 2012; and, • on November 13, 2012 a fourth trial date was set for a two-day trial March 7, and May 1, 2013. [ 4 ] The first trial, scheduled to commence on September 14, 2011, did not proceed primarily because the Crown had learned that the witness who identified the defendant as the driver had died.

The Crown brought a Khan application [2] returnable on the trial date

without formal and full notice to the defendant. The responsibility for that adjournment and the apportionment of the time to the nexttrial date is contested. [5] The trial did not proceed on March 28, 2012, the second date set for it, because the Officer-In-Charge, who received thedeceased’s statement, underwent abdominal surgery on February 27, 2012. He was unavailable to testify until on or after April 9, 2012.

The apportionment of the time between the second trial date of March 28, 2012 and the third trial dates of November 15 and 16, 2012 iscontested. [6] The trial did not proceed on November 15 and 16, 2012, the third dates set for it, because the defendant and his counsel partedways and new counsel was not available on these dates. On October 31, 2012 the defendant’s original counsel was removed as counselof record and Mr. Fedorsen became counsel of record.

On November 5, 2012 the defence applied for and received an order vacating thethird trial dates of November 15 and 16, 2012 as defence counsel was unavailable to conduct a defence on those dates. The matter wasthen adjourned to set new dates for trial. That occurred on November 13, 2012 when new trial dates of March 7 and May 1, 2013 wereset, along with a half-day 11(

b) application for January 30, 2013. While the responsibility for the adjournment of the third trial date isnot contested, the apportionment of the time to the fourth trial dates is. The Respective Positions [7] The defence position is that Crown and/or systemic delay to November 16, 2012, (being the last day of the third trial) totals 14months and three days.[3] The Crown’s computation of systemic delay to November 16, 2012 is 11 months and 27 days. The partiesagree that the defence did not waive any of the periods to November 16, 2012.

Additionally, both sides agree that the period from theswearing of the information on April 13, 2011 to May 17, 2011, (when the first trial date was set,) is a neutral intake period. Other thanthis, as noted before, they disagree about who or what caused the adjournments of the first trial date on September 14, 2011 and how thetime from that date to November 16, 2012 should be characterized and apportioned. The Morin Balancing [8] R. v. Morin, (SCC), [1992] 1 S.C.R. 771 at [31] directs that whether one’s right under s. 11(

b) has beeninfringed cannot be determined by “the application of a mathematical or administrative formula but rather by a judicial determinationbalancing the interests which the

section is designed to protect[4] against factors which either inevitably lead to delay or are otherwisethe cause of delay.” Some delay is inevitable. “The question is, at what point does the delay become unreasonable? … [I]t is nowaccepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused.” The Morin Guidelines [9] For the general guidance of trial courts the Supreme Court of Canada has suggested “a period of institutional delay of between 8to 10 months as a guide to Provincial Courts.” (Morin at [55] and [57]) The Court envisaged several ways in which these initialguidelines might be adjusted: (

i) regional adjustment of these guidelines by trial courts “to take into account local conditions”; (ii) timelyadjustments “to reflect changing circumstances”; and, (iii) supervisory adjustments by provincial appeal courts to achieve uniformitysubject to the necessity of taking into account the special conditions and problems of different regions in the province. (Morin at [57]) Notwithstanding these prospects for adjustment, none have occurred to this point in time so that the eight to ten month guideline for asingle-stage

summary conviction Provincial Court matter remains the applicable guideline in Ontario. [10] Guidelines have two purposes: they identify that there is a limit to tolerable institutional delay and their promulgation avoidsprotracted re-litigation of that recognition. (Morin at [50]) The guidelines cannot be applied mechanically and unyieldingly.

Theirapplication is an exercise of judicial discretion. (Morin at [51]) The Supreme Court gave specific directions to trial judges on theappropriate use of guidelines at [52] of Morin, particularly in jurisdictions experiencing “rapidly changing conditions.” I am of the viewthat Haldimand is not experiencing rapidly changing conditions.

Rather, in my view, the situation in this jurisdiction can be described asone where “the case load has been constant over a substantial period of time [so that] the delay envisaged by the guideline may beregarded as excessive.” (Morin at [52]) (emphasis added) [11] Morin at [53] also instructs that the existence of actual or substantial prejudice is a factor that ought to shorten the period ofacceptable systemic delay while the guidelines may be applied to cases in which prejudice is absent or slight. (emphasis added) The Submissions of the Crown

[12] The Crown’s submission is that the guidelines are merely that, guidelines. In the Crown’s submission given the inherent timerequirements of this case, (which includes a Khan application, an anticipated s. 8 Feeney application by the defence, an 11(

b) applicationand the potential for testimony being called from more than ten witnesses during the Crown’s case,) an increase of one month and 27days beyond the top end of the Morin guidelines is not unreasonable, especially when no actual prejudice to the defendant is weighted onthe scales. The Crown urges consideration of the “Epilogue” in R. v. Lahiry, 2011 ONSC 6780 , [2011] O.J.

No. 5071 (S.C.J.),which can be read as suggesting an expansion of the guidelines. [13] More specifically, the Crown urges a reduction of systemic delay to the first trial date in September of 2011 because a July datewas offered but refused by the defendant.

Further, the Crown submits that the systemic delay computed to each trial date after the firstone should be reduced by two inherent factors: first, the time required for a judicial pre-trial prior to each of those subsequent trial dates;and second, an attribution of some “calendar clearing” and preparation time identified by Justice Code in Lahiry and confirmed asappropriate by the Court of Appeal in R. v. Tran, 2012 ONCA 18 , [2012] O.J.

No. 83. [14] Further, the Crown submitted that all of the time after the loss of the November 16, 2012 trial date must be excluded fromsystemic delay as having been lost by the actions of the defence.[5] [15] Finally, the Crown submitted that there are specific local factors in play at Cayuga, which is a jurisdiction that only has a judgeassigned to conduct trials one day each week.

As a result, extraordinary efforts needed to be made through the cooperation of the localadministrative judge in Niagara North with the trial coordinators of Cayuga and Niagara North to obtain prompt trial dates for this two-day matter after the adjournment of the November 2012 trial dates. This local situation is a factor that ought to enlarge a period ofsystemic delay beyond the guidelines as being reasonable for this case. The Submissions of the Defence [16] The defence position is that the Morin guidelines ought to guide the court’s decision.

This case may require more court timethan some drinking and driving cases but that does not call for an expansion of the guidelines. This prosecution is merely one count ofimpaired driving.

The fact that the Crown may call more witnesses than is usual does not make this case inherently morecomplicated.[6] [17] The defence submitted that the Crown’s reliance on Justice Code’s “Epilogue” in Lahiry was misplaced for a number of reasonsbut only one needs mention here; namely, that Lahiry is clearly distinguishable as all of the periods of systemic delay identified byJustice Code in those appeals were within the guidelines.

Here, by the Crown’s own admission, the top end of the guidelines isexceeded by almost two months. [18] The defence objected, rightly in my view, to any reduction in systemic delay to the first trial date because the defendant’scounsel rejected a July date on which he was unavailable. As Mr. Little pointed out, the Crown rejected a date a week later because itwas unavailable. September 14, 2011 was the first date offered by the court that was available to both sides.[7] [19] In addition, Mr.

Little made all of the following submissions: •some modest portion of systemic delay should be attributed to the period after theloss of the third trial date when his firm came on record;•no reduction from systemic delay ought to be made when a pre-trial date is set atthe same time as a trial date as no “inherency” allowance needs or ought to be madein that circumstance;•the essential systemic error that is attributable to the Crown is its failure to identifythis prosecution as a case in need of remedial attention after the loss of the secondtrial date; and,•given the documented desire of the defendant to obtain an early second trial dateand given how extensively the total systemic delay exceeds the guidelines, despiteno actual prejudice, the Court should infer that he has suffered prejudice to his fairtrial and his security of his person interests so that the Morin balancing is readilytipped in favour of the finding of a s. 11(

b) breach that requires the remedy of astay to be entered. Reasons for Judgment [20] Both sides acknowledge that there is an element of arbitrariness and hence artificiality to the ascription of time periods to some ofthe Morin factors. Notwithstanding, what is a reasonable period of systemic delay depends upon an analysis of the total period of time,(from the swearing of the information to the anticipated end of the trial) using the Morin taxonomy. On the analysis of this record, I amof the opinion that for this single count of impaired driving, where the Crown has proceeded summarily,[8] the defendant’s 11(

b) right toa trial within a reasonable period of time has been infringed and the charge is therefore stayed. [21] I arrive at that conclusion by virtue of my own computation of systemic delay, together with the Crown’s concession that thesystemic delay in this case exceeds the guidelines by almost two months. I also take into account that this was a single count of impaireddriving and that on September 12, 2011, the Crown advised the defence that it would not be proceeding on the over 80 allegation. [22] This was a straight forward allegation of impaired driving. There was no allegation of personal injury.

The Crown’s theory wasthat the defendant was a driver who crashed his car and fled the scene. Although a Khan application came to be required that did notmake this a complicated prosecution, especially given the clarifying judgment of R. v. Khelawon, 2006 SCC 57 , [2006] 2S.C.R. 787. Moreover, the major portion of the systemic delay occurred because the Crown elected not to use the full day of trial timeavailable on March 28, 2012, despite having more than 10 witnesses to call beyond the unavailable Khan witness.

Had the Crown notgiven up that day of trial time this case would likely have been completed within the Morin guidelines. That explains my ruling. Notwithstanding, I have charted and discuss the chronology of this prosecution as follows.

Date Purpose CommentApril 19/11 First appearance, disclosure provided; noscreening form available, adjourned three weeksto May 10/11 Intake May 10/11 Mr. P. Osier (Osier) retained; adjourned at requestof defendant to May 17/11 discuss settlement.

Intake May 17/11 Osier files a designation and a trial date is set fora half-day trial on September 14/11 Each side agreed to this trial dateand each side estimated that thetrial would take a ½ day of courttime. [23] The period from April 13, 2011 through to May 17, 2011 when the first trial date was set is a neutral intake period. [24] Prior to the discussions and analyses in R. v. Tran, 2012 ONCA 18 , [2012] O.J. No. 83 (C.A.) and R. v. Lahiry, 2011ONSC 6780 , [2011] O.J.

No. 5071 (S.C.J.) the whole period of three months and 28 days between May 17, 2011 andSeptember 14, 2011 may well have been ascribed to systemic delay. It is now clear that some period should be ascribed to the inherenttime requirements of the case to allow defence counsel to clear his calendar and to conduct the necessary preparation work required for atrial. I assess this period for preparation at one month. Therefore, the systemic delay to September 14, 2011, the first trial date, is twomonths and 28 days. That trial did not proceed.

What occurred in and around September 14, 2011 is charted below and discussedsubsequently. Date Purpose CommentSept. 1/11 The assigned Assistant Crown, Mr. C. Peters(Peters) advises Osier, by telephone, that anessential Crown witness has died and that theCrown will seek to adduce his evidence via a Khanapplication. . Sept. 12/11 Peters faxes a Khan application to Osier at 3:54p.m. and also advises Osier that the Crown willnot be proceeding on the over 80. Sept. 14/11 Defence seeks to vacate the trial date and adjournthe trial due to the recently served Khanapplication.

In addition a new witness statementwas recently served and that, too, is a basis of thedefence request for an adjournment. The case isadjourned to September 27, 2011 to find a newtrial date. This was wholly a defencerequest for adjournment. Thefinding of fact is explainedsubsequently. Sept. 27/11 A second trial date is set for March 28, 2012 setfor a trial estimated to take one day. In addition, ajudicial pre-trial conference is scheduled forOctober 17, 2011 and a confirmation hearing toconfirm trial readiness is set for January 11, 2012. [25] The first trial date was adjourned at the request of the defence.

The Crown agreed that the adjournment was appropriate andconsented. The dates on offer for this second trial date were not identified but described by defence counsel as being “way into nextyear” so he asked that the matter be adjourned to September 27, 2011 to speak to the trial coordinator to get an earlier trial date. OnSeptember 27, 2011 a second trial date of March 28, 2012 was set for a one-day trial, six months after the first trial date of September 14,2011. [26] Mr.

Little urges that the adjournment of the first trial date was caused by the failure of the Crown to keep track of their witnessesor to ensure that subpoenas were issued and served in a timely fashion. I disagree. There is no evidence to support that submission. It ismere speculation and not a conclusion that can be reasonably inferred. All that this record shows is that the Crown learned of the deathof its witness and so learned of the need to employ a different tactic to obtain that missing evidence about two weeks before the first trialdate.

The Crown advised the defence of those developments on September 1, 2011. [27] In my view, the Khan application did not change the nature of the case. If anything, given the Crown’s jettisoning of the over 80,the case was a simpler one. Nothing precluded the defence from opposing the Khan application on the technical ground of lack of noticeunder the rules. Nothing precluded the defence from seeking to adjourn some or all of its cross-examination of the Khan witness. In fact,

the defence was not ready for trial as it admitted in an exchange of email sent by defence counsel to the Crown on September 13, 2011. [9] While that defence counsel attempted to secure a second trial date within the 2011 calendar year his request to adjourn the trial for about a month is of no significance because a trial cannot be arranged for and shoe-horned into an existing trial docket in that kind of time-frame barring serendipitous and unlikely circumstances. [ 28 ] As a result of the defence’s request to adjourn the first trial date I am of the view that much of the period between the first and second trial dates is not systemic or institutional delay.

Rather, much of that delay was occasioned by actions of the accused in seeking to adjourn the first trial date. [ 29 ] In addition, I agree with the Crown’s submission that further inherent preparation time ought to be deducted on each of the occasions when new trial dates were set in this case because the parties needed to “gear up” again. Finally, and contrary to the submissions of Mr.

Little on the point, in my view Morin decides that judicial pre-trials are part of the inherent time requirements of a case. [10] [ 30 ] Barring defence waiver and intake periods which are generally precisely computable, there is an element of arbitrariness to the assessments to be made.

Factoring in the time required to conduct a pre-trial, the time required for trial preparation, the time lost by this defence request for adjournment and the time lost because the Crown consented to the defence request for adjournment in these circumstances [11] , I ascribe half of the period from September 14, 2011 to March 28, 2012 to systemic delay; that is to say, three months and seven days. Hence, the total systemic delay to March 28, 2012 was six months and five days, (give or take a day or two.) [ 31 ] The second trial did not proceed on March 28, 2012. The next chart outlines what occurred.

The matters will be addressed thereafter. Date Purpose Comment Oct. 17/11 A judicial pre-trial was held. The matter remained a one-day trial. Jan. 11/12 A confirmation hearing was held. Mr. Osier said the matter is still a trial that will take 3/4 of a day. The Crown confirmed that all officers are required and available. Feb. 8/12 The Crown applied to adjourn the March 28, 2012 trial date as the arresting officer, (the officer who received the Khan evidence,) was having surgery and would not be available on the March 28, 2012 trial date. The application was opposed by the defence.

The application was adjourned to allow the Crown to respond to several questions about the application posed by the bench. Feb. 22/12 The Crown provided further information to a different judge then presiding and the application was allowed. The matter was adjourned to February 28, 2012 to set a new third trial date. The trial time required was expanded by both sides and the Crown did not want to use the March 28, 2012 date that was available for the first day of this trial. Feb. 28/12 A third trial date was set for November 15 and 16, 2012.

A judicial pre-trial and confirmation hearing was set for June 27, 2012 and the case adjourned to that date. [ 32 ] The March 28, 2012 trial date was confirmed on January 11, 2012. On January 12, 2012 the Officer-In-Charge of the prosecution (P.C. Elviss) became scheduled for surgery in late February. As a result, he was unavailable to give evidence at the March 28, 2012 trial date. The Crown learned of his unavailability and brought a motion returnable on February 8, 2012 seeking to adjourn the trial until after April 9, 2012 when Elviss would be available to testify.

That application was adjourned to February 22, 2012 when it was granted. The trial date of March 28, 2012 was vacated. The case was remanded to February 28, 2012 when two days for trial were set on November 15 and 16, 2012. [ 33 ] These events bear upon the computation of systemic delay. On February 22, 2012 both the Crown and the defence continued to estimate trial time at one day despite the proposed Khan application and what might be called a Feeney or trespass application, which the defence broached but did not formalize. Both sides ultimately agreed that this matter would take a day and a half.

Subsequently two days were reserved in November. Even though the Crown anticipated calling ten witnesses, (other than Elviss,) the Crown abjured any use of the full day of trial time available on March 28, 2012. The defence took no position with respect to the requested adjournment but essentially agreed that the case should not be split between separated dates (“I don’t think any of us like split trials, and if it can be kept together it should be.”) The adjournment was granted on February 22, 2012 and the March 28, 2012 one-day trial date was vacated.

As the trial coordinator was not available on February 22, 2012 the matter was remanded to February 28, 2012 when the November 15 and 16 trial dates were set, along with a further judicial pre-trial date of June 13, 2012.

[34] A portion of this trial, (P.C. Elviss’ evidence on the trial proper and on the Khan application,) had to be delayed until on or afterApril 9, 2012 while Elviss recovered from abdominal surgery. The loss of trial time from March 28, 2012 to April 9, 2012 and somereasonable period thereafter is clearly neutral as resulting from unexpected illness. (see R. v. A.J.W., 2009 ONCA 661 , [2009]O.J.

No. 3814 (C.A.) at [35][12]) [35] However, what I find most significant is that the Crown, which has the obligation to bring the accused to trial,[13] willingly gaveup using any of the time reserved for this case on March 28, 2012. The Crown must have necessarily appreciated that the trial would beinevitably delayed as a result of the action they took by rejecting that date for use. Moreover, according to a Crown submission detailedpreviously, extraordinary efforts apparently needed to be made to obtain dates for a prompt two-day trial in this jurisdiction.

Hence, byelecting not to use the one day that was available, (at a time well within systemic guidelines,) the Crown was intentionally flirting with11(

b) disaster.[14] [36] The period from March 28, 2012 to November 16, 2012 is seven months and 20 days. P.C. Elviss’ surgery had no effect on thesetting of the March 28, 2012 trial date so that it cannot reduce the accumulated systemic delay to that point. He was available to testifyon and after April 9, 2012. His testimony may well have been the only testimony required to complete the Crown’s case, had it electedto call evidence on the March 28, 2012 trial date.

In these circumstances I ascribe six months of the period between March 28, 2012 andNovember 16, 2012 to systemic delay making the total accumulated period of systemic delay to November 16, 2012 to be 12 months andfive days. [37] The trial did not take place on November 15 and 16, 2012. What occurred is charted below and discussed thereafter. Date Purpose CommentJune 13/12 A further judicial pre-trial was held and thecase remanded to June 27, 2012 to allowdiscussion of the issues broached.

June 27/12 The trial dates of November 15 and 16 remainassigned for this prosecution with aconfirmation hearing set for October 3, 2012. Oct. 3/12 The Crown confirmed it will proceed with aKhan application and Mr. Osier indicated thathe will pursue a s. 11(

b) application. The defence’s proposed 11(b)application required an abridgmentof time order. The matter wasadjourned to October 17, 2012 as aresult. Oct. 17/12 There was further discussion of the proposed11(

b) application and the matter wasadjourned to October 22, 2012. Oct. 22/12 Mr. Osier withdrew the 11(

b) application andthe matter was adjourned to the first day of thetwo-day trial, scheduled to commence onNovember 15, 2012. Oct. 31/12 Osier applied to be and was removed ascounsel of record for the defendant and Mr. J.Hawkins, for Mr. F. Fedorsen, was presentand went on record. The matter wasadjourned to November 5, 2012 to allow newcounsel to apply to vacate the November trialdates as new counsel was not available forthose dates.

Nov. 5/12 A formal defence application to adjourn thetrial scheduled for November 15 and 16, 2012was filed in St. Catharines, before the judgeassigned to conduct the trial on those dates.The defence application to vacate those trialdates (as Mr. Fedorsen was not available onthe November dates) was granted. The matterwas adjourned to Cayuga on November 13,2012 to set an 11(

b) application date, (whichnew counsel elected to pursue) and new trialdates. Nov. 13/12 New trial dates and half a day for a s. 11(b)application were set. Each side outlined theirvarious available dates but the earliest datesavailable to both sides and the court wereJanuary 30, 2013 for the 11(

b) application andthen March 7, 2013 and May 1, 2013 for trial. [38] The defendant agrees that he is responsible for the delay occasioned by his change of counsel and the loss of the November 15and 16, 2012 trial dates but submits that some reasonable portion of the period to May 1, 2013 should be attributed to systemic delay. The defence relies upon the application of R. v. Maracle, (SCC), [1998] 1 S.C.R. 86 as support for that position. In myview the very brief judgment of the Supreme Court of Canada in Maracle[15] simply confirms existing jurisprudence.

In my view, thewhole period from November 16, 2012 to May 1 2013 to accommodate a two-day trial is not an unreasonable period. If the systemicdelay to November 16, 2012 had been reasonable I would have permitted this trial to proceed on March 7 and May 1, 2013. [39] The defendant’s change of counsel had no effect on systemic delay to November 16, 2012 since systemic delay to that date hadalready crystallized. All of the delay incurred after November 16, 2012 is the result of the actions of the accused. R. v. G.A.G., [2006]O.J.

No. 67 (C.A.) at [5] and [6], holds that the delay occasioned by a change of counsel sought by an accused is not attributable tosystemic delay.[16] Equally, the time expended or required to bring an 11(

b) motion is also time incurred by the actions of the accused.(see footnote 5, supra) [40] The total systemic or institutional delay in this prosecution to November 16, 2012 amounts to 12 months and five days. This is aperiod well outside of the Morin guidelines. Prejudice [41] The defence relies upon inferred prejudice only in this application. The defendant was released on a promise to appear with norestrictive terms included in the undertaking, which he gave to an Officer-In-Charge. Accordingly, there is no prejudice to his “liberty ofthe person” interests that can be inferred.

However, one can infer prejudice to his “fair trial” interests based upon the passage of time inexcess of the Morin guidelines.[17] Additionally, prejudice can be inferred to his “security of the person” interests.[18] Where, as here,delay exceeds the guidelines the non-existence of actual prejudice is less important in the judicial balancing.[19] [42] This was a straightforward allegation of impaired driving. By the time of the defendant’s third trial dates the accumulatedsystemic delay amounted to in excess of 12 months. Prejudice to him can be inferred and I do so. His right under s. 11(

b) to be triedwithin a reasonable period of time was infringed and the charge is stayed. Dated at St. Catharines, this 11th day of February 2013. ___________________________ J.S. Nadel, (O.C.J. [4] Morin, supra, at [26] to [30] 26 The primary purpose of s. 11(

b) is the protection of the individual rights of accused. A secondary interest of society as a whole has,however, been recognized by this Court. …

27 The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3)the right to a fair trial. 28 The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings takeplace while evidence is available and fresh. 29 The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeingthat the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. … [T]rials held promptly enjoy theconfidence of the public. … "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to thebenefit of society as a whole and, indeed, to the ultimate benefit of the accused...".

In some cases, however, the accused has no interest inan early trial and society's interest will not parallel that of the accused. 30 There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. … [T]he interests of theaccused must be balanced by the interests of society in law enforcement. … As the seriousness of the offence increases so does thesocietal demand that the accused be brought to trial. … [5] Morin, supra, at [44] and [45] “Actions of the Accused 44 This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay.There is no necessity to impute improper motives to the accused in considering this factor.

Included under this heading are all actionstaken by the accused which may have caused delay. In this

section I am concerned with actions of the accused which are voluntarilyundertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournmentswhich do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice allpreliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into accountin determining what length of delay is reasonable. 45 An example of such actions is provided by Conway, supra.

In Conway, the accused made a number of requests which led to theproceedings being delayed. Those requests included a change of venue motion, changes of solicitor and a request that the accused beallowed to re-elect trial by judge alone. A further example is provided in Bennett, supra, where the accused made an election at hisscheduled Provincial Court trial to be tried in the then District Court. This converted a scheduled trial into a preliminary inquiry.

Whilethe type of action of the accused in both these cases was unquestionably bona fide, each action contributed to the delay and musttherefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable.” [6] Morin, supra, at [41] “... The complexity of the trial is one requirement which has often been mentioned. All other factors beingequal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins.

Forexample, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses andother cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements ofsuch cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of factswhich must be evaluated. ...” [10] Morin at [43] “… Equally, a two-stage process will involve additional inherent delays such as further pre-trial meetings andadded court dates.

An additional period for inherent time requirements must be allowed for this second stage. This period will be shorterthan in the case of the one-stage trial process because many of the intake procedures will not have to be duplicated.” (emphasis added) [12] “[35] Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case. As Hill J.said in R. v. Hoffner, [2005] O.J. No. 3862, (Ont. S.C.), at para. 41: "Such a contingency, while unfortunate andunexpected, is nevertheless an inherent feature of the litigation process.

In turn, therefore, reasonable delay to a new trial date is primafacie considered neutral." Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral. If the time tothe next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay.” Similarly, in R. v. Roncaioli, 2011 ONCA 378 , [2011] O.J.

No. 2167 (C.A.) at [30] the Court also refers to paragraph [47] ofA.J.W. in support of the proposition delay caused by unexpected illness is neutral or an aspect of the inherent time requirements of acase.” [15] “L'HEUREUX-DUBÉ J.:— The majority of Cory, McLachlin and Major JJ. would allow the appeal. In their view, the trial judgecarefully considered all the relevant factors referred to by this Court in Askov and Morin and made no error in the manner in which heexercised his discretion, L'Heureux-Dubé and Iacobucci JJ. dissenting for the following reasons.

In their view, the Ontario Court ofAppeal was correct in finding error in the trial judge's dealing with the period of delay and the matter of prejudice to the appellant.Balancing all of the relevant guidelines from Askov and Morin, the Court of Appeal properly reversed the stay ordered by the trial judgeand so they would accordingly dismiss the appeal.” [16] “[5] A date set that had been set for over one year for the preliminary hearing was lost when, days before the preliminaryhearing was to commence, the appellant sought an adjournment due to a change of counsel.

A new date (a little over one month later)was found but the preliminary hearing could not be completed on that day and the contested two-month delay ensued. [6] We do not agree with the submission that the trial judge erred in failing to attribute the entire two-month period to the Crown or toinstitutional delay.

The original date was lost because of the appellant's adjournment request and it was open to the trial judge toconclude that "one can say that this is not the fault of the system but rather the system bending over backwards to accommodate anaccused who has requested an adjournment, and trying to wedge, now, the time for a one-day pre-trial into little bits of court space here,there, and where it could be accomplished."