R. v. Horner, 2012 BCCA 7 holds that where a delay in a criminal trial occurs as a result of midtrial adjournments for a continuance, the delay engendered is institutional:
[104] To sum up, on every occasion when more time was required, the case was adjourned for at least a year before any time to continue it could be found. While counsel are accountable for inabilities to properly predict the time they would take to complete the trial, I am of the view that Justice Leask was correct in concluding that the delays in this case were largely institutional.
[105] Perhaps the most disturbing aspect of this case is that once it was apparent that counsel had underestimated the length of the time required to challenge the wiretap evidence, it was impossible to reschedule the trial so that it could take place continuously. Instead, the parties staggered through it in bits and pieces.
[106] It is true that after it was first determined that more time would be needed for the voir dires, it was the trial judge who suggested that they try it "in parts", but it quickly became clear that, because of scheduling problems, the trial would have to be conducted in this manner in any event.
[107] Even after the trial judge expressed her exasperation in January 2008 with the stunted way in which the trial was proceeding, counsel were only able to obtain six weeks of time starting in November 2008 to carry on in two-week segments until January 2009.
[108] The phenomenon of adjourning trials for later continuation is a relatively recent development. In cases tried before a judge and jury, it was thought necessary to specifically provide for it in the Criminal Code.[1] Of course, with more sophisticated means of collecting evidence, the advent of the Charter, and other developments, trials now take a much longer time to prosecute and defend than they did a few short years ago. It is obviously acceptable to weave a hiatus into a trial schedule after the conclusion of Charter applications to allow counsel to assess their positions on what is then apparently the case for the Crown. It is also sensible to take short breaks of a day or even a week or so in the course of a trial scheduled, as this one was, for three months or so. These measures are meant to give counsel time to shore up their arguments, and, in the end, save court time.
[109] I have the Crown's point that, when counsel underestimate the time that they need to pursue their applications, they can hardly expect to have further court time provided to them at their earliest convenience. Other cases in the system must not be casually pushed aside to instantaneously cure a poor assessment of time. But nothing like that occurred in the case at bar. Here, the voir dires were often adjourned for a year or more because of the lack of time available. Not only were the gaps between the hearings exceptionally long, but once the original time allotted was consumed, the court was usually unable to provide more than a few days at a time for the continuation.
[110] It is hardly a sensible use of time to conduct a trial in a piecemeal fashion. It creates significant problems to have to pick up a voir dire or trial after a year-long break in the proceedings. The accused person must wait for a year before his or her case resumes. Counsel must spend time reacquainting themselves with the case and the evidence, adding extra costs for the client. Witnesses must refresh their memories to the limited extent the passage of time allows. The trial judge winds up ordering transcripts of the evidence previously taken if he or she is to truly appreciate it. Time is wasted in court getting back up to speed, as the record in this case clearly demonstrates. In these circumstances, victims, accused persons, and members of the public are certainly entitled to ask how a trial judge is expected to arrive at a fair conclusion.
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