Stay for delay

Today's decision in R. v. B.H., 2009 ONCA 731 shows stay for delay under 11(b) of the Charter is alive and well, provided the circumstances are appropriate:

[3]              We do not accept these submissions.  The delay in this case was quite extraordinary for a fairly simple case scheduled to last three days.  The principal reason for the delay was the Crown's desire to join this prosecution to a second sexual assault charge, involving a different complainant, laid against the respondent a year after the first.  Not surprisingly, the respondent sought to sever the two charges from each other.  For a variety of reasons, the court administration was not able to identify who would be the judge.  Accordingly, the application was adjourned on several occasions for almost exactly a year.  In addition, on several occasions the trial was delayed because the Crown decided to prioritize other trials.  Moreover, at no time did the Crown raise the potential s. 11(b) issue, even after the case was well offside the Morin guidelines.  These delays, both institutional and Crown initiated, when coupled with the respondent's demonstrated eagerness on several occasions to take steps to proceed to trial, justified the trial judge's conclusion that the delay in the case was "unreasonable and unacceptable".

[4]              Finally, the trial judge's prejudice analysis fits comfortably inside what Cromwell J. said in R. v. Godin, [2009] S.C.J. No. 26 at para. 31:

The question of prejudice cannot be considered separately from the length of the delay… Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward.  Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

James Morton
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