BY THE COURT:
[1] This is a Crown appeal from the order of Nordheimer J. staying serious charges against six police officers because their rights to a trial within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms were infringed. The trial judge estimated that some 56 months would have elapsed before the trial of five of the six officers, John Schertzer, Steven Correia, Joseph Miched, Nebojsa Maodus and Raymond Pollard ("the Schertzer respondents"), could be completed. It would take even longer to complete the trial of the sixth officer, Richard Benoit. The trial judge stayed the charges because, in his words: "The vast majority of the time that has passed in this prosecution resulted from the Crown's inability to make full and complete disclosure." He also found that the prosecution was characterized by complacency and a lack of awareness of the need to prosecute the case without delay.
[2] In our view, the trial judge made two fundamental errors in finding that the s. 11(b) rights of the Schertzer respondents were infringed. First, he erred in finding that the delay was due to disclosure problems. Whatever the problems with disclosure, and there clearly were some, delay in making disclosure had no impact on the progress of the prosecution. There was no causal connection between problems with disclosure and the timing of the proceedings. To the contrary, the delay was a reflection of the inherent time required to prepare and prosecute this complex case.
[3] Second, the trial judge erred by failing to follow the direction in R. v. Morin, [1992] 1 S.C.R. 771, to expressly identify the causes for significant delays during the chronology of the case. Of the 56-month delay, the trial judge only specifically allocated 18 months of delay to any Morin category. The bulk of the time was unattributed.
[4] The trial judge delivered his reasons on the s. 11(b) motion after months of pre-trial proceedings. In those proceedings, he became very familiar with the long history of the charges before him, and the issues on which battle had been joined at the pre-trial stage. It is fair to say he knew a great deal about the investigation that led to the charges and the pre- and post-charge management of the case by the prosecution. Understandably, the trial judge formed certain opinions about the Crown's conduct of the prosecution. In some respects, he was clearly not impressed. The trial judge was also justifiably concerned about the length of time the charges had been before the courts, particularly given the lengthy pre-charge history of the matter and what he found to be significant ongoing prejudice suffered by all accused.
[5] Whatever the validity of the trial judge's assessment of parts of the Crown's management of this case – upon which we explicitly refrain from commenting – s. 11(b) is not the medium through which the quality of the prosecution's performance is measured. Section 11(b) focuses exclusively on delay and the causes of that delay, and this case proceeded in accordance with a schedule with which the accused and their counsel were content.
[6] When the causes of the delay are properly identified, there was no unreasonable delay in this case. This complex case proceeded at the pace contemplated and dictated by the parties. For this reason, the appeal in respect of the Schertzer respondents is allowed.
[7] The respondent Richard Benoit stands in an entirely different position. Following the preliminary inquiry, he was committed for trial only in relation to one set of allegations and, significantly, was discharged in relation to the most serious allegation, a charge of conspiracy to obstruct justice. It was anticipated that his trial would take no more than a week. There was no reason why Benoit could not have had that trial within months of the committal, but for the Crown's decision to proceed with the much more complicated trial of the Schertzer respondents first. The resulting two-year delay is unreasonable and the trial judge properly stayed the charges against Benoit. The Crown appeal with respect to Benoit is dismissed.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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