Stay for delay

Today’s Court of Appeal decision in R. v. Cranston, 2008 ONCA 751 provides a useful summary of the law of a stay for delay in criminal law:

Governing Principles

[35] A stay imposed for a violation of s. 11(b) is to be reviewed on a standard of correctness. No deference need be accorded the trial judge’s attribution of the various periods of delay, or his or her ultimate conclusion as to the reasonableness of the delay: see R. v. M. (N.N.) (2006), 209 C.C.C. (3d) 436 (Ont. C.A. ), at paras. 5-6, and R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A. ), at para. 27.

[36] Institutional or systemic delay starts to run when the parties are ready for trial but the system cannot accommodate them.[3] To provide guidance on the approximate permissible scope of institutional delay, the Supreme Court in Morin set out the following guidelines: eight to ten months in the Ontario Court of Justice and six to eight months in the Superior Court of Justice. These are not limitation periods. Rather, they are factors to be weighed in the overall assessment of the reasonableness of the total delay: see R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A. ), at p. 345, aff’d [1997] 3 S.C.R. 700.

[37] Institutional delay must be contrasted with the inherent time requirements of a case. The latter concept generally encompasses the time taken at both levels of court to get the case to the point where the parties are ready to set trial dates. It includes the time needed to retain and instruct counsel, conduct bail hearings, undertake administration and paperwork, and comply with disclosure obligations.

[38] Further, the more complicated the case, the greater the inherent time requirements will be. This case is a complex fraud which involves trying multiple individuals. Both these factors have been recognised as increasing inherent time requirements: see R. v. Horgan (2007), 165 C.R.R. (2d) 332 (Ont. C.A. ), at para. 22, leave to appeal to S.C.C.
refused (2008), 166 C.R.R. (2d) 374, and R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321 (Ont. C.A. ), at para. 38. Complex fraud cases typically require substantial preparation time and court time, as a result of having to review large quantities of complicated financial documents, and interview many witnesses, including experts. Trying multiple individuals may significantly extend the time reasonably required to complete the proceedings as there is the need to co-ordinate the schedules of multiple counsel for intake matters, the preliminary hearing and the trial.