The granting of a stay is intended to be a radical and "last step" measure. This is because the granting of a stay has many negative effects. Society has an interest in having criminal cases heard and decided; this is especially so for serious high profile crimes. Innocent accused have an interest in clearing their names at a trial. Victims of crime have a need to seek the closure only a substantive hearing can provide.
A stay is not to be granted so as to punish the Crown for administrative failings; the issue is too important to allow a stay for delay to be a case management tool.
This last point was made clear in this week's decision in R. v. Hussey, 2008 ONCA 86.
The accused was charged on September 2004 with sexual assault -- a very serious offence and the sort of offence that society has a very strong interest in resolving. He was committed for trial in the Superior Court in September 2005 after a preliminary inquiry. A trial date of March 13, 2006 was fixed in November 2005. The trial was scheduled for five days.
On the scheduled trial date, no trial court was available and the appellant's trial could not proceed. The trial was adjourned to November 20, 2006. Defence counsel did not oppose the adjournment. He did, however, make it clear that he was preserving his client's rights under s. 11(b) of the Charter. There is no indication as to whether either counsel requested an earlier date from the trial coordinator. The presiding judge did not comment on the length of the adjournment.
On November 20, 2006, the case came on for trial before the same judge who had adjourned it on March 13, 2006. That judge concluded that there had been a violation of s. 11(b) of the Charter and stayed the sexual assault charge.
In his reasons, the trial judge fixed almost exclusively on the adjournment in March 2006. That adjournment resulted in an eight month institutional delay. The trial judge stressed the failure to give this case any priority when the trial had to be rescheduled. He referred to the absence of any administrative scheme to prioritize cases that were not reached on the first trial date. The trial judge was also critical of the Crown and the administrative staff's failure to give effect to observations he had made in a case several years earlier. That case addressed delay occasioned by the need to reschedule a trial.
While important the trial judge's comments did not address the real issues for a stay. The Court of Appeal said:
[6] Reading the reasons as a whole, we are satisfied that the trial judge effectively granted a stay because he was not satisfied with the Crown's approach to the adjournment request in March 2006. In doing so, the trial judge failed to give any weight to considerations that are important in the s. 11(b) analysis. These are first, the societal interest in a trial on the merits. That interest is particularly significant where, as here, an accused is charged with a very serious offence. Second, the trial judge failed to consider the absence of any prejudice caused by the delay to the respondent's fair trial right and the minimal prejudice caused to his liberty interest by the terms of his bail.
[7] As the trial judge failed to conduct the Morin analysis, we do so and conclude as follows:
• the total passage of time from the laying of the charge to the trial date, twenty-six months, is sufficiently long to trigger a consideration of all of the s. 11(b) factors;
• institutional delay accounts for about five and a half months in the Ontario Court of Justice and about twelve months in the Superior Court for a total of just under eighteen months of institutional delay; and
• the other delays are delays inherent in the case (e.g. intake periods) and one adjournment of some two months during the preliminary inquiry that was mutually agreed on by counsel. These delays in total account for eight months.
[8] Having regard to the administrative guidelines outlined in Morin for institutional delay, this case is on the borderline of unreasonable delay. Where cases are approaching or are at the unreasonable delay limit, it is important that trial judges balance the factors that the trial judge ignored in this case.
[9] The allegation was a very serious one and the public had a keen interest in a trial on the merits. This public interest should have been explicitly taken into account by the trial judge.
[10] While the accused suffered the same prejudice that all accused suffer when their case progresses slowly through the system, the appellant suffered no additional prejudice as a result of the delay.
[11] Having regard to the absence of any prejudice, beyond that experienced by all accused, and the important public interest in a trial on the merits, we hold that the delay in this case, while far from ideal, was not unconstitutional.
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