Reasons for Delay (Morin Framework Only)

From Criminal Law Notebook
Jump to: navigation, search

General Principles

See also: Right to a Trial Within a Reasonable Time

It is "the ultimate responsibility of moving a case forward rests with the Crown". [1] However, the Crown is not to take responsibility for defence counsel's failings to properly represent the interests of their client.

  1. R v Stephen, 2012 ONCA 411 (CanLII) at para 7

Intake Period / Pre-Charge Delay

The intake period refers to the period of time between the beginning of the investigation and the eventual swearing the Information and sending of disclosure to the Crown.

This period can be divided into two types of delay:[1]

  1. delay between the offence occurring and the reporting to police
  2. delay between the reporting of the offence and the police laying a charge

The intake period will vary on the type of charges investigated.

Drinking and driving cases typically have an intake period of roughly two months.[2]

  1. R v A.(S.), 2011 NUCJ 7 (CanLII)
  2. R v Meisner, 2003 CanLII 49317 (ON SC), [2003] O.J. No. 1948 (ONSC)

Re-Scheduling of trial time

This period of time concerns delay resulting from the inability to finish the trial during the initial time booked.

It is generally expected that incomplete cases will be given priority over other matters in court. Delays due to re-scheduling of trial time is treated as institutional delay or as part of the inherent time requirements. [1] Gross underestimate of the time requirements for trial will be attributable to institutional delay.[2]

Defence counsel are not expected to "hold themselves in a state of perpetual availability".[3]

  1. R v Lahiry, 2011 ONSC 6780 (CanLII) per Code J. at para 67
    R v Godin, 2009 SCC 26 (CanLII) per Cromwell JA
    R v Brace, 2010 ONCA 689 (CanLII), (2010), 261 CCC (3d) 455 at paras 14-16 (Ont. C.A.)
    R v Allen, 1996 CanLII 4011 (ON CA) at pp. 347-351
    R v Satkunanathan, 2001 CanLII 24061 (ON CA), (2001), 152 CCC (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.)
    R v M. (R.) 2003 CanLII 50092 (ON CA), (2003), 180 C.C.C (3d) 49 at paras 6-9
    R v W. (A.J.), 2009 ONCA 661 (CanLII), (2009), 257 OAC 11 at paras 29-43 (ONCA)
  2. R v Qureshi, 2004 CanLII 40657 (ON CA)
  3. Godin, supra at para 23

Institutional or Systemic Delay

Institutional or systemic delays arise where the case is ready for trial but "trial a judge, courtroom or essential court staff may not be available and so the case cannot go on."[1] It "runs from the time the parties are ready for trial and continues until the system can accommodate the proceedings."[2]

The Supreme Court in Morin suggested a "guideline of between 8 and 10 months for institutional delay in Provincial Courts."[3]

Delay required to hold judicial pre-trial conferences are attributable as institutional delay.[4]

The failure of courts to identify "true availability of dates within the system" may risk the rights under s.11(d) to becomes "meaningless".[5]

Institutional Delay is Attributed to the Crown
Institutional delay is attributable to the Crown.[6] This is because delays caused by lack of institutional resources should not be legitimized as acceptable reasons for delay.[7]

  1. R v Morin 1992 CanLII 89 (SCC), [1992] 1 SCR 771 per Sopinka J
  2. Morin, ibid.
  3. Morin, ibid.
  4. R v CRG, 2005 CanLII 32192 (ON CA), [2005] OJ 3764 (ONCA)
  5. R v Patrick Sikorski & Daniel Griffiths, 2013 ONSC 1714 (CanLII) at para 97
  6. R v Lahiry, 2011 ONSC 6780 (CanLII) at para 25 to 37
  7. R v Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 935 ("It is imperative, however, that in recognizing the need for such a criterion we do not simply legitimize current and future delays resulting from inadequate institutional resources. For the criterion of institutional resources, more than any other, threatens to become a source of justification for prolonged and unacceptable delay. There must, therefore, be some limit to which inadequate resources can be used to excuse delay and impair the interests of the individual.")

Inherent Delays

By contrast "inherent delay" are those that are necessary to move a case forward. The more complicated the case the longer the preparation time will be required. In addition, counsel "cannot be expected to devote their time exclusively to one case." The inherent delays are excusable. This is determined on a case by case basis. [1]

Inherent time requirements are neutral periods that do not count against accused or the Crown.[2]

Time spent scheduling, preparing and conducting pre-trial hearings are considered inherent time requirements.[3]

While the accused is struggling to retain and keep counsel, the court and Crown are in a "holding pattern" and that time is attributed as inherent delay.[4]

The more "complex case is, the longer it will take counsel to prepare, the longer it will take to assemble witnesses and evidence, and the longer the trial may take."[5]

Mis-estimating Requirements
Where counsel mis-estimate the time it will take to prosecute the case resulting in an adjournment to finish the case will normally count as "inherent time requirement".[6]

Multiple Accused
Where there are multiple co-accused or multiple charges the inherent time requirements will increase.[7]

  1. R v Richards, 2012 SKCA 120 (CanLII) at para 33
    R v Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771 at pp. 791-2
  2. R v MacDougall, 1998 CanLII 763 (SCC), [1998] 3 SCR 45 at para 44
  3. R v Nguyen, 2013 ONCA 169 (CanLII) at para 54, 59, 60
  4. R v Baron, 2017 ONCA 772 (CanLII), at para 59
  5. R v Lee, 2015 SKCA 53 (CanLII) at para 53
  6. R v Allen (1996), 110 CCC (3d) 311 at p. 344 (ONCA)(*no CanLII links) aff'd at [1997] 3 SCR 700, 1997 CanLII 331 (SCC)
  7. Rusic, supra at p. 703
    R v Faulds, 1996 CanLII 2579 (ON CA), (1996), 111 CCC (3d) 39 (ONCA)

Accused Caused Delay

See also: Right to a Trial Within a Reasonable Time#

Where delay is largely "attributable to the accused" or defence counsel, a prima facie case of unreasonable delay cannot bemade out.[1]

Defence counsel cannot be expected to be perpetually available.[2]

The accused cannot use adjournment either requested or consented to by defence as weighing in favour of unreasonable delay.[3]

Time taken for the accused to find counsel is usually treated as attributable to the accused.[4]

Where delay is contributed to by the defence's use of the preliminary inquiry as a lengthy discovery it cannot be used towards unreasonable delay.[5]

The Crown may show that some delay was attributable to the accused where there were earlier dates available for a defence application or where the delay is relating to providing disclosure but there was a delay in requesting disclosure. If established, the onus shifts to the defence to show that the earlier dates were not available to defence or that the earlier dates would not have sped things up, or that relevance did not become apparent until later.[6]

Pre-trial motions advanced by the accused will often mean that the resultant delay will be attributable to the accused. This includes motions such as:

  • resisting extradition[7]
  • change of venue[8]
  • challenge a search warrant[9]
  • quashing the order of committal[10]
  1. R v Morin, 1992 CanLII 89, [1992] 1 SCR 77
    R v Kwok, 2002 BCCA 177 (CanLII), (2002), 164 CCC (3d) 182
  2. R v Godin, 2009 SCC 26 (CanLII)
  3. R v Heaslip (1983), 9 CCC (3d) 480 (Ont. C.A.), 1983 CanLII 3519 (ON CA) per Martin JA
    R v Deloli (1985), 20 CCC (3d) 153 (Man. C.A.), 1985 CanLII 3482 (MB CA)
  4. R v Koruz (1992), 1992 ABCA 144 (CanLII), 125 AR 161 at para 86, find accused counsel “should be treated as either a neutral factor or a delay attributable to Koruz.” )
  5. R v Bazinet, 2002 BCCA 536 (CanLII), (2002), 168 CCC (3d) 344 (BCCA) at para 21
  6. R v Innes, 2011 ONSC 2638 (CanLII), at para 32
  7. R v White, 1997 CanLII 2426 (ON CA), (1997), 114 CCC (3d) 225 (ONCA)
  8. R v Conway, supra
  9. Morin, supra at p 17 to 18
  10. Conway, supra

Crown Caused Delay

Any delay caused by the Crown is not excusable when calculating the total time of delay.[1]

There are two categories of crown delay: (1) delay caused by decisions at the core of prosecutorial discretion and (2) decisions concerning adjournments, disclosure, and change in manner of proceedings. Those of the first category are only reviewable for abuse of process and otherwise cannot be attributed against the crown. The second category is reviewable for crown caused delay.[2]

Where the Crown refuses disclosure and is subsequently ordered to disclose documents, the delay arising from the refusal is attributable to the Crown.[3]

  1. R v Pusic, 1996 CanLII 8215 (ON SC) at p. 704
  2. R v Ghavami, 2010 BCCA 126 (CanLII), (2010), 253 CCC (3d) 74 (BCCA)
  3. R v Innes, 2011 ONSC 2638 (CanLII) at para 31

Complexity of the Case

A particularly complex case that requires lengthy documentary evidence may tolerate longer delays that normal cases.[1] The Crown must present "cogent evidence that proves the complexity of the case".[2]

Insufficiency of resources alone is not an indicator of a high degree of complexity.[3]

The need for technical expertise to examine the computer does not necessarily make a case complex for The purpose of Morin analysis.[4]

Complexity remains an important factor under the transitional exception cases under the Jordan Framework.[5]

  1. R v Atkinson, 1991 CanLII 7113 (ON CA), (1991), 68 CCC (3d) 109 at p.127 (ONCA)
  2. R v Giorgio, 2004 CanLII 30094 (ON SC)
  3. Moyer, Re, 1994 CanLII 7551 (ON SC)
  4. R v Charbonneau, 2015 BCPC 4 (CanLII) at para 108
  5. R v Cody, 2017 SCC 31 (CanLII), at paras. 70-71
    R v Picard, 2017 ONCA 692 (CanLII) at para. 79
    R v Gopie, 2017 ONCA 728 (CanLII), at para. 119

Child Pornography Offences

The Police are permitted to triage their analysis of computers by conducting preliminary analysis and then holding off on full analysis until after it was clear there would be a contest of the charges. [1]

An intake period of 9 months for child pornography charges can be reasonable given that much of the investigation occurs after charges and the frequent need for breaks while categorizing the materials.[2]

  1. R v Charbonneau, 2015 BCPC 4 (CanLII) at para 128 to 130
  2. R v Stilwell, 2014 ONCA 563 (CanLII), at para 9

Delayed Disclosure

Failure to make timely disclosure will cause delay attributable to the Crown.[1]

It is not necessary that the defence have the Crown expert report before being able to make election and plea.[2] The use of trial confirmation hearings one or two months before trial can be used as delivery dates for remaining reports. If reports are not disclosed, it would entitled a defence adjournment at the cost of the Crown.[3]

When Crown protection of privilege results in delay is attributable to the Crown.[4]

  1. R v Collins; R v Pelfrey, [1995] 2 SCR 1104, 1995 CanLII 114 (SCC) at p. 389
  2. R v Crant, 2014 ONSC 6233 (CanLII)
    R v Kovacs-Tatar, 2004 CanLII 42923 (ON CA) at para 47
    R v Lahiry, 2011 ONSC 6780 (CanLII), at para 114 ("Sophisticated forensic testing and ongoing investigative steps often take time and they cannot be allowed to hold the process hostage by preventing the setting of timely trial dates. It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages.")
  3. Lahiry at para 114
  4. R v Philips (1993) 80 CCC (3d) 167 (ONCA), 1993 CanLII 14721 (ON CA) per Doherty JA

Other Circumstances

Crown requests for an adjournment is a Crown delay.[1]

The time accrued during which a Crown stay of proceedings under s. 579 of the Code has been invoked will be attributable to the Crown.[2]

  1. R v Collins, supra
  2. R v Lanteigne, 2010 NBCA 91 (CanLII) at para 13
    R v AS, 2008 CanLII 48150 (ON SC) at paras 20 to 22
    R v Condello (1997), 38 O.T.C. 362, 36 W.C.B. (2d) 48(*no CanLII links) at para 39
    R v Randell, 2015 CanLII 79127 (NL SCTD) at para 115
    R v Durack, [1997] S.J. No. 518 (Sask. Q.B.), 1997 CanLII 11290 (SK QB) at para 18
    R v Keevik, 1996 CanLII 3625 (NWT SC), [1996] N.W.T.J. No. 32 (Sup. Ct.) at para 12

Classifying Delay

Delay that is unrelated to defence does not presumptively or automatically attribute to the Crown.[1]

Delay Caused by Unavailable Defence Counsel on Crown Adjournment
Where Crown offers a trial date after the original adjourned trial date, additional delay after that offered date due to defence counsel's unavailability was found to be neutral.[2]

Defence counsel's unavailability after a denied date due to Crown and Court's unavailability is not attributable to the Crown.[3]

Unforeseen Crown Adjournments
Crown adjournment for unforeseen factors can be considered neutral.[4]

Delays Cause by Defence Pre-Trial Motions
The delays necessary to hear defence motions are neutral.[5]

Delay Caused by Conflict of Interest
Delay caused by the judge recusing himself as he had previously represented the accused when he was a lawyer was considered neutral.[6]

Caused by Co-accused
Delay caused by the inaction of a co-accused will generally be seen as neutral.[7] However, delay caused by the Crown assisting one party to the detriment of another may be attributed to the crown.[8]

Delay for a Re-Trial
A retrial should be scheduled "without further delay". Only a "short period" of delay will be expected. Anything longer may open the possibility of a s. 11(b) Charter delay.[9]

Delay by Crown Attempting to Assist in Obtaining 3rd Party Records
Where the Crown agrees to obtain materials that are third party records, the delay that results from their participation is either neutral or inherent time.[10]

Factors "Outside" of Court Proceedings
Delay due to "weather conditions or infrastructure problems; illnesses of key witnesses, parties or the court; interference by outside agencies not caused by the state; or conflicting court obligations by the accused person" are all treated as neutral unless there is some unusual situation.[11]

Delay Caused by Missing or Absconding Accused
There is no obligation on the part of the accused to voluntarily return to the jurisdiction to face prosecution. Refusal to return does not waive the delay in prosecution.[12]

  1. R v Biorac, 2006 CanLII 14237 (ON CA), [2006] OJ No 1778 (ONCA)
  2. R v PA, 2002 CanLII 53216 (ON CA), [2002] OJ 2490 (ONCA) per Catzman and Weiler JJA aff'd at SCC
    R v NNM, 2006 CanLII 14957 (ON CA), [2006] OJ 1802 (ONCA) per Juriansz JA
  3. R v Nikolovski, 2005 CanLII 3328 (ON CA), [2005] OJ 494 (ONCA) per "The Court"
    c.f. R v Rego, 2005 CanLII 40718 (ON CA), [2005] OJ 4768 (ONCA)
    and R v Lof, [2004] OJ 4963 (ONCJ)(*no CanLII links)
  4. R v Meisner, 2004 CanLII 30221 (ON CA), [2004] OJ 3812 (ONCA)
    R v Bell [2005] O.J. No. 4755 (SCJ)(*no CanLII links)
  5. R v Hape, 2005 CanLII 26591 (ON CA), [2005] OJ 3188 (ONCA)
  6. R v Meisner, 2004 CanLII 30221 (ON CA), [2004] OJ 3812 (ONCA) at para 12
  7. R v Farewell, 2008 BCCA 9 (CanLII) at para 89
  8. R v Sandhu, 2013 BCSC 963 (CanLII) at para 69 to 76
    R v Topol, 2008 ONCA 113 (CanLII), [2008] OJ 535 (ONCA)
  9. R v Brace, 2010 ONCA 689 (CanLII), at para 15
    see also Mistrials
  10. NNM, supra
  11. R v CD, 2014 ABCA 333 (CanLII), at para 31
  12. R v MacIntosh, 2011 NSCA 111 (CanLII) Crown appeal dismissed by SCC