Effect of ill witness on stay for delay under 11(b)

Today's decision in R. v. A.J.W., 2009 ONCA 661 deals with delay caused by the illness of a witness:

 

 

[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 CanLII 32924 (Ont. S.C.), at para. 41:  “Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process.  In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral.”  Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral.  If the time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay.

 

[36]         As I read his reasons, the trial judge characterized the delay from October 29, 2007 to June 23, 2008 as institutional/Crown delay because of the tactical or strategic decision by Crown counsel not to proceed without the witness and rely upon an application under s. 715 of the Criminal Code to read in the witness’ testimony from the examination for discovery.

 

[37]         The respondent supports the trial judge’s approach and fairly makes the point that if delay following illness of a witness was always considered neutral, cases could drag on forever despite the mounting prejudice to the accused’s interest in a speedy trial.  In effect, the accused would be held hostage to the vagaries of the health of prosecution witnesses.  Further, there would be no incentive to the prosecution to seek alternative methods of proving the case, as was available here under s. 715 of the Criminal Code, as long as the institutional delay remained within the Morin guidelines.

 

[38]         While these are legitimate points, in my view, the submission fails to take into account the nature of the Morin guideline for institutional delay.  The periods referred to in Morin are guidelines not limitation periods or hard and fast rules.  As Sopinka J. said in Morin at p. 796:  “A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors.”  It is open to a court to find the delay to trial unreasonable even where the institutional delay falls within the Morin guidelines, especially where there is real prejudice to the accused:  Morin at p. 807.

 

[39]         The respondent’s submission also fails to take into account other methods that the trial court has to protect the accused against unreasonable delay.  One obvious method that could have been employed in this case was for the presiding judge to refuse the Crown’s application for an adjournment if he considered the request inappropriate or infringing on the respondent’s constitutional rights.

 

[40]         In my view, it was unreasonable for the trial judge to attribute all the delay following October 29, 2007 to actions of the Crown or institutional delay.  The trial judge held that the Crown made a tactical decision to seek an adjournment rather than attempt to adduce the complainant’s mother’s evidence under s. 715.  However, the record does not bear out that view of the events.  The Crown application for the adjournment was heard on October 24 and was supported by an affidavit from an employee of the VWAP.  The effect of that affidavit was that the complainant’s mother had been diagnosed with cancer only a few days before and was to have surgery three days before the date for the trial.  The complainant’s mother told the VWAP employee that the complainant “will be critical to her after-care both physically and emotionally”.  Thus, it was not just that the complainant’s mother was unavailable, but at least at the opening of the trial, it would be difficult for the complainant to testify.  I appreciate that the adjournment request was put on the basis of the mother’s unavailability, but it strikes me as inappropriate to force the complainant to testify in those circumstances.  Defence counsel made no attempt to pursue the issue or press for the trial to proceed despite the circumstances. Rather, he seemed to accept that the adjournment was inevitable.  I repeat what he said about the adjournment at the time:

 

I mean, given the circumstances, the adjournment was practically a foregone conclusion, so I don’t have much to say about that, but I’m certainly, certainly not in the position to consent.  I want – I’m putting it on the record that [the respondent] intends to exercise his 11(b) rights in respect of this.

 

[41]         On this record, the Crown’s decision to apply for an adjournment was reasonable and should not be characterized as a simple tactical decision.  Presumptively then, the resulting delay was neutral.  That is not to say that all the ensuing delay should be considered neutral.  Given the delay that had already occurred through no fault of the respondent, he was entitled to expect the system to respond with some urgency by offering dates for the trial as soon as reasonably possible.  He was entitled to have the system give his case priority.  My review of the record indicates that this is exactly what occurred.  The respondent was offered trial dates within less than three months.  That said, if there was evidence that the respondent’s counsel was available within an even shorter time, I might have considered some of that three months to be institutional delay.  However, there was no such evidence and no suggestion that defence counsel was able to accommodate an earlier trial date.