(Continued from part 1)
A judicial pre-trial conference in the Superior Court was also adjourned because the assigned Crown was not present. The primary complaints of the accused were that the preliminary hearing was re-scheduled twice and took place almost five months after it was originally scheduled and the trial took place over a year after it was originally scheduled. What follows are some of the interesting comments by the Court of Appeal for Ontario concerning delay applications in the province of Ontario:
The trial Judge’s decision set out the analytical framework to be applied in an application under subsection 11(b) taken from Morin3 and Godin;
As this court noted in R. v. Konstantakos the characterization of periods of delay, and the ultimate decision concerning the reasonableness of the period of delay, is reviewable on the standard of correctness. The underlying findings of fact are reviewable on a standard of palpable and overriding error;
The Defence position of wanting the presence of the assigned Crown at a pre-trial conference was reasonable. To ensure a full and effective pre-trial hearing, it is necessary that counsel with carriage of the matter attend at a pre-trial;
You should not be deemed automatically ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them;
The suggested time periods of Morin are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances. The Court of Appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions and problems of different regions in the province;
The court rejects the submission of the Crown that the court ought to take into account that the Defence decided to elect trial by jury. Further, the court rejects the Crown’s argument that the accused chose to bring Charter motions. As Rosenberg J.A. noted in Ralph7 at paragraph 14: “The appellant is not required to give up his Charter right to a jury trial to vindicate his Charter right to a trial within a reasonable time.” Likewise, this appellant was not required to give up his pre-trial Charter applications, which the trial Judge characterized as “serious and substantial”, to vindicate his Charter right to a trial within a reasonable time.
The court allowed the appeal, set aside the convictions, and entered a stay of proceedings pursuant to subsections 11(b) and 24(1).
Although the accused in criminal proceedings has the legal burden of establishing a violation of the Charter on a balance of probabilities, an evidentiary burden of presenting evidence or argument may shift depending on the circumstances of each case.8 This is often the case in challenges to a search. The evidentiary onus of establishing a warrantless search is upon the accused applicant, but once established, the evidentiary onus shifts to the prosecutor to establish the reasonableness of a warrantless search.
(continued in part 3…)
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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