Delay after mistrial

R. v. Brace, 2010 ONCA 689, released today online, deals with delay following a mistrial:

[14]          The most important issue raised in this appeal is the delay incurred while rescheduling after the mistrial.  Clearly, additional time to schedule the another trial was an inherent requirement of the case.  In R. v. W.B., [2000] O.J. No. 2186 ( C.A. ), at para. 61, Rosenberg J.A. said that “some short period of delay” after a mistrial is properly characterized as part of the inherent time requirements of the case.  This court was more emphatic in R. v. Satkunananthan, [2001] O.J. No. 1019 ( C.A. ).  At para. 55 of the court’s decision it stated that,  when the trial in that case ended in a mistrial, “it was incumbent on the Crown to take all necessary steps to ensure that the third trial commenced without further delay.”  In the circumstances of that case, an additional delay of seven to nine months was simply not acceptable.

[15]          While the circumstances that caused the mistrial in Satkunananthan were quite different to those in this case, and the delay was longer as well, it would be wrong to understand the court’s admonition of the Crown in that case as limited to its special facts.  In all cases where there is a mistrial, the Crown should seek to schedule the retrial “without further delay”. In most instances, only “some short period” of further delay is inherently required.

[16]          In this case, the mistrial was declared some thirteen months after the appellant was committed for trial.  The record discloses no effort by the Crown to seek an early date for the retrial.  It seems the Crown attached no special priority to the case, but had it scheduled in the normal course.  The date initially set for the retrial was more than 9 months after the mistrial. When that date became unavailable and the defence indicated that s. 11(b) was an issue, the Crown still did not explore when the defence was first available.  Instead, it asked for a date four months later.  More attention to an accused person’s s. 11(b) rights is required.

[17]          That said, it is my view that the trial judge erred by allocating the delay due to the defence’s request for disclosure to both the defence and the Crown.  The request related to the police’s conduct when it arrested the appellant.  It was not a request for third-party records.  The defence made the request at the first pre-trial on February 1, 2005.  The entire delay should have been allocated to the Crown. 

[18]          As well, while it was within the trial judge’s discretion to find that there was no evidence that the appellant had suffered actual prejudice, this was not a case that should have turned on that finding.  The trial judge failed to sufficiently recognize that delay, in and of itself, can be expected to have a detrimental effect on a fair trial.

[19]          As things turned out, delay did become a factor at the appellant’s trial. Crown counsel put to the appellant that his memory of the events was not worthy of belief without contemporaneous notes because of the passage of time.  Crown counsel suggested that the memories of the police officers should be preferred over the appellant’s because their testimony was based on contemporaneous notes.  Needless to say, the trial judge could not have foreseen what would occur at trial.  Equally, the appellant could not have foreseen how the Crown would eventually use the passage of time to his detriment and so could not have led evidence of that prejudice at the time of the application.

[20]          The Supreme Court has recognized that long delay, alone, has a detrimental effect on a fair trial.  In R. v. Askov, [1990] 2 S.C.R. 1199, Cory J., for the majority, indicated, at para. 69 (iv) that “[t]here is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time”.

[21]          Where delay exceeds the guideline period, the significance of actual prejudice is reduced. In R. v. Morin, [1992] 1 S.C.R. 771, at para. 53, Sopinka J. writing for the majority said:

The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact.

[22]          The trial judge placed too much weight on the prejudice factor in reasoning that the s. 11 (b) application should be dismissed because of the lack of “stronger or more case specific” evidence of prejudice.

[23]          The charges in this case are serious as the trial judge noted.  The appellant was alleged to have ignored a police officer’s gesture to stop the SUV he was driving and instead almost ran her down.  The public has an interest in having the charges dealt with on their merits.  The public also has an interest in having serious charges dealt with in a timely manner.

 

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