R. v. Findlater (N.), (2012) 298 O.A.C. 90 (CA)

• Judge: Winkler, C.J.O., Rosenberg and Hoy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 09, 2012
• Jurisdiction: Ontario
• Citations: (2012), 298 O.A.C. 90 (CA);2012 ONCA 685

R. v. Findlater (N.) (2012), 298 O.A.C. 90 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. OC.017

Her Majesty the Queen (respondent) v. Necho Findlater (appellant)

(C53639; 2012 ONCA 685)

Indexed As: R. v. Findlater (N.)

Ontario Court of Appeal

Winkler, C.J.O., Rosenberg and Hoy, JJ.A.

October 12, 2012.

Summary:

The accused appealed his convictions for numerous weapons offences, asserting that the trial judge erred in refusing to stay the proceedings on the basis of unreasonable delay contrary to s. 11(b) of the Charter.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - The accused appealed his convictions for numerous weapons offences, asserting that the trial judge erred in refusing to stay the proceedings on the basis of unreasonable delay contrary to s. 11(b) of the Charter - The accused asserted that the judge erred in characterizing the four months from the time of his arrest until the preliminary inquiry as intake or neutral - He asserted that most of that delay was due to the Crown's failure to make timely disclosure of the co-accused's videotaped police statement - The Ontario Court of Appeal rejected the assertion - While this was not an overly complex case, some time was required to make disclosure - Importantly, the delay in disclosure did not delay the proceedings - A date could have been set for the preliminary inquiry without the disclosure actually being in the hands of the accused's counsel - There was then a short delay because the accused did not attend personally and the court was unwilling to set a preliminary inquiry date until the accused had elected his mode of trial - It was reasonable to attribute the entire four months to neutral intake - See paragraphs 2 and 3.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - The accused was charged with numerous offences - When the trial had to be adjourned, the accused's counsel was offered the date of May 10, 2010 - His counsel was unavailable on that date and the next available date was September 14, 2010 - The accused accepted that date for trial - The accused applied to stay the proceedings on the basis of unreasonable delay contrary to s. 11(b) of the Charter - In dismissing the application, the trial judge attributed the entire delay from February to May 10, 2010 to institutional delay - He then attributed two months of the delay from May 10 to September 14 to institutional delay and two months to the accused - The accused asserted the judge erred in attributing any of the delay to the accused after the case was not reached on the first trial date in February 2010 - The Ontario Court of Appeal rejected the assertion - The judge attributed five of the seven month delay due to the adjournment as institutional delay - That was a reasonable allocation - The judge considered that the accused's counsel could not be expected to be ready to accept any date offered and thus attributed most of the delay to lack of adequate institutional resource - He was also entitled to consider that there was no suggestion that counsel wanted an earlier trial date or that the trial was being unreasonably delayed - It might be that the two months could more properly be considered to be neutral rather than defence delay, but that would not alter the s. 11(b) analysis - See paragraphs 4 to 6.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - The accused appealed his convictions for numerous weapons offences, asserting that the trial judge erred in refusing to stay the proceedings on the basis of unreasonable delay contrary to s. 11(b) of the Charter - The accused asserted that the judge erred in failing to consider that prejudice could be inferred from the 30 month delay from arrest to trial - The Ontario Court of Appeal held that the trial judge did not err in his approach to prejudice - He expressly acknowledged the prejudice to the accused's liberty interests by the strict bail conditions - But, he also fairly noted that each time the accused sought to loosen the bail conditions, the Crown consented and that on the last occasion, the accused waited several months before entering into the new recognizance - It was not that the judge found no prejudice, only that the accused had not established the degree of prejudice claimed - As the judge stated: "Where an accused does not suggest that a proposed trial date is going to cause unacceptable prejudice and accepts that date without comment, it's reasonable to infer that significant prejudice will not occur. I draw that inference in all the circumstances here." - See paragraphs 7 to 9.

Counsel:

Mark Halfyard, for the appellant;

Marcella Henschel, for the respondent.

This appeal was heard on October 9, 2012, by Winkler, C.J.O., Rosenberg and Hoy, JJ.A., of the Ontario Court of Appeal. The court released the following endorsement on October 12, 2012.