R. v. Parry

R. v. Parry Collection Decisions of the Court of Appeal Date 1999-01-12 Docket numbers C29194 Judges Doherty, David H.; Rosenberg, Marc; O’Connor, Dennis Subject Criminal Decision Content DATE: 19990112 DOCKET: C29194 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Appellant) v. JACK DENNIS PARRY (Respondent) BEFORE: DOHERTY, ROSENBERG and O’CONNOR JJ.A. COUNSEL: Morris Pistyner for the appellant Sharon E. Lavine for the respondent HEARD: January 8, 1999 ENDORSEMENT [1] The trial judge misinterpreted the controlling case law and misread s. 11(b) of the Charter as guaranteeing “a trial at the earliest possible time.” [2] The charge was in the Provincial Court for 19 months. The parties were not in a position to set a date for the preliminary inquiry until 10 months had passed. This delay is attributable to procedural matters which are part of any criminal proceeding, e.g. obtaining disclosure, and to the respondent’s desire to have certain unrelated matters resolved before the pre-trial on these charges was completed. This 10-month period should be regarded as essentially neutral. [3] The parties were ready to proceed with a preliminary inquiry on October 30, 1996. They estimated the preliminary would take 1 day and were given the date of April 29, 1997. This 6-month delay can be characterized as institutional. On April 29th, the case was preempted by a custody matter. Although the preliminary inquiry could have been commenced on that day, it could not have been completed even though counsel had revised their estimate of the time needed to one-half day. Counsel cannot be faulted for taking the position that if the preliminary inquiry could not be completed on that date, it should not be commenced but rather, should be adjourned. The inquiry was adjourned to July 28, 1997. This 3-month period should be added to the institutional delay resulting in a total delay of 9 months. [4] The respondent was committed for trial on July 28th and on August 29th a trial date of December 8th was set. This 3-month period can be viewed as institutional delay. [5] The trial was adjourned from December 1997 to February 1998 at the request of the respondent and this time period should be excluded from any consideration of the respondent’s s. 11(b) claim. [6] In assessing a s. 11(b) claim, the entire period between the laying of the charge and the trial must be considered. Section 11(b) does not create a constitutional right to have any given stage of criminal process completed within a reasonable time. Here, the initial delay of 10 months was neutral. There was a 9- month institutional delay in Provincial Court, and a 3-month institutional delay in the General Division. Some institutional delay is inevitable. A total institutional delay of 12 months is well within the guidelines established by the Supreme Court of Canada. There was no actual prejudice occasioned to the respondent by the delay and these charges are relatively serious. [7] Considering the total time period involved, the reasons for the various delays, the nature of the charge, and the absence of any actual prejudice to the respondent, we are satisfied that the trial judge erred in law in holding that the respondent’s s. 11(b) rights had been violated. [8] The stay is set aside and it is directed that the matter be returned to the General Division for trial.