A new ruling from the Ontario Superior Court has established a calculation for delay that at least one lawyer believes could increase the number of cases that languish in the system.
“The one error that is common to all four appeals is the proper calculation of institutional delay.
In all four cases, the entire period from the set date appearance to the trial date was automatically characterized as systemic or institutional delay, without further analysis,” the judge wrote, going on to quote late Supreme Court justice John Sopinka in R. v. Morin, a key case on delays in the justice system.
“This is not a correct approach to calculating this particular cause of delay, given that institutional delay only ‘starts to run when the parties are ready for trial but the system cannot accommodate them.’”
According to Code, delays of eight to 10 months could be expanded in certain circumstances to include several months’ worth of neutral delay time that wouldn’t count negatively toward a case’s overall processing time, an approach one lawyer says has set a new standard for what the accused can reasonably expect in the future.
“It’s significant in that it basically expands the scope of delay for future cases,” says Daniel Brown, a Toronto criminal lawyer.
“It’s taking some of that negative delay and applying it in a way that gives them the chance to expand the time limits of delays in the future. It’s adding in neutral delay, which doesn’t count negatively toward a case’s overall delay time.”
The standard could affect cases where the accused make arguments related to s. 11(b) of the Charter of Rights and Freedoms that upholds the right to trial within a reasonable amount of time, Brown notes.
“Say, for instance, you want to say to a judge, ‘My trial took too long.’ Normally, you wouldn’t count portions of time where the Crown and the attorney were preparing documents or filing, for example.
But now, the portion of time after a trial is set could also be considered part of this neutral time, too. So, essentially the clock starts ticking a lot later than usual.”
The Lahiry ruling involved four separate cases dealing with drinking and driving. Three of the four Crown appeals were argued together, and the fourth, R. v. Shelson, was argued shortly after.
The four different trial judges in each case stayed the proceedings after ruling there were violations of the accused person’s right to trial within a reasonable time as per s. 11(b). These violations involved delays of seven to 11 months in all four cases, the trial judges found.
But in his ruling, Code set aside the four stays on appeal and ordered new trials. The trial judges, he noted, considered the entire period from the set-date appearance to the trial date in the calculation of institutional delay.
But in Code’s view, institutional delay begins only when “it is first established when counsel were ready to try the case.”
In Lahiry, the accused was 35-year-old non-practising lawyer Prosenjit Lahiry. He was arrested on Dec. 27, 2009, for refusing to give a breathalyzer test. Two days later, he was released from jail and charged.
From Dec. 29, 2009, to Feb. 9, 2010, a total of two months, both the Crown and the defence were carrying out normal pretrial duties such as retaining counsel and gathering evidence, Code noted.
The trial judge ruled there was a six-week period of institutional delay during that time when the Crown could have gathered evidence faster. But Code said the entire two-month period fell within the neutral intake period for cases.
From Feb. 9, 2010, to March 3, 2010, preparations continued for both the Crown and the defence. The defence noted it was ready to set a date for a trial.
Both Code and the trial judge agreed this was part of the neutral delay period and didn’t count toward any institutional delays in the case.
From March 3, 2010, to April 23, 2010, both the Crown and defence continued to prepare
for trial. A trial date was also set for Feb. 28, 2011.
Code ruled that although a trial date had been set at this point, it was still reasonable to allow for a one- to two-month window for further preparations until the defence was absolutely ready for trial. The trial judge disagreed and found this time period to be part of the institutional delay.
From April 23, 2010 to Jan. 28, 2011, both the Crown and defence were ready, but the Court wasn’t. Both judges agreed this was institutional delay.
The total time between charge and trial was roughly 14 months. The trial judge ruled institutional delay accounted for roughly 11 months of this.
Code, however, ruled otherwise. He concluded there were only nine months of institutional delay from April 23, 2010, to Jan. 28, 2011. In his view, the additional two months were part of the normal intake and neutral delay periods.
Although a trial date had been set, it was reasonable to count the two months as normal preparation time for the defence and Crown, Code wrote.
In each of the cases, Code ordered the accused to appear within 30 days.
“I think it’s a reflection of the courts being so busy,” Brown says of the court’s ruling.
“They’re having to find different ways to cope. Twenty years ago, they found a way to access cases faster, but it appears they have taken a step backward in that area with this.”
Frank Addario, former president of the Criminal Lawyers’ Association, had a similar reaction. “It should not take a year for a simple drunk driving case,” he says.
“When it does, it twists the understanding of what a speedy trial is. It is the direct result of business decisions being made to allocate less resources than required to the administration of justice.
Instead of responding to that problem, the courts have been understanding and flexible about that business decision.”