Her Majesty the Queen v. Herrington
[Indexed as: R. v. Herrington]
68 O.R. (3d) 532
 O.J. No. 4754
Docket No. C39579
Court of Appeal for Ontario
O’Connor A.C.J.O., Feldman and Gillese JJ.A.
December 8, 2003
Charter of Rights and Freedoms — Trial within reasonable time — Trial judge staying two charges of sexual interference on basis that 31-month delay between arrest and trial violated accused’s rights under s. 11(b) of Charter — Trial judge erring in attributing delays caused by defence difficulties in serving parties with third-party record materials to systemic or Crown delay — When properly calculated, systemic delay amounting to 16 months — Permissible range for systemic delay being between 14 and 18 months for matters to be heard in Superior Court of Justice — Neither systemic delay nor cumulative pre-trial delay unreasonable — Canadian Charter of Rights and Freedoms, s. 11(b).
The accused was charged with two counts of sexual interference. The trial judge granted a stay of proceedings on the basis that the 31-month delay from the accused’s arrest to the proposed trial date violated the accused’s right, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, to be tried within a reasonable time. The trial judge found that the delays were mainly due to difficulties encountered by the defence in serving parties with third-party record materials, and attributed those delays to systemic or Crown delay. The Crown appealed.
Held, the appeal should be allowed. [page533]
The trial judge erred in his assessment of systemic delay. Approximately 15 months of the total delay of 31 months should not have been characterized as systemic delay, nor should it have been attributed to the Crown. The permissible range for systemic or institutional delay is between 14 and 18 months for matters to be heard by the Superior Court of Justice. The systemic delays in this case, amounting to 16 months, were within the acceptable range. The cumulative delay of 31 months was not unreasonable.
Cases referred to
R. v. Askov,  2 S.C.R. 1199, 75 O.R. (2d) 673, 42 O.A.C. 81, 74 D.L.R. (4th) 355, 113 N.R. 241, 49 C.R.R. 1, 59 C.C.C. (3d) 449, 79 C.R. (3d) 273 (sub nom. Askov, Hussey, Gugliotta & Melo v. R.); R. v. Morin,  1 S.C.R. 771, 134 N.R. 321, 8 C.R.R. (2d) 193, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 11(b)
APPEAL by the Crown from a stay of proceedings.
Riun Shandler, for appellant. Anil K. Kapoor, for respondent.
 BY THE COURT: — On January 27, 2003, Millette J. stayed two charges of sexual interference with a person under 14 years of age on the basis that the 31-month delay from the time of the respondent’s arrest to the proposed trial date violated his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. The Crown appeals.
 The trial judge found that the delays in this case were mainly due to difficulties encountered by the defence in serving parties with third-party record materials. The trial judge attributed those delays to systemic or Crown delay.
 In our view, the trial judge erred. We are satisfied that approximately 15 months of the total delay of 31 months should not be characterized as systemic delay, nor should it be attributed to the Crown.
 It is accepted that the reasonable time for intake in the Ontario Court of Justice and in the Superior Court of Justice in this case was 2 3/4 months. That time should be considered neutral.
 The first trial date was set for the week of June 11, 2001. The defence had failed to prepare its material for a third-party records application and, on June 8, 2001, requested an adjournment. The court adjourned the case to the next assignment court on August 27, 2001. On that day, the court set the second trial date for February 25, 2002. Eight-and-one-half months elapsed between the first trial date and the second trial date. None of that time ought to be attributed to systemic or Crown delay. [page534]
 On February 25, 2002, the case was adjourned again as there was difficulty in locating the complainant. The defence was unable to serve her with the third-party records application. It is worth noting that the defence only set about to serve the complainant approximately two weeks before the trial date. The trial was adjourned until November 25, 2002. The period of time between February 25 and November 25, 2002, perhaps somewhat generously to the defence, may be characterized as systemic delay.
 On the third trial date, November 25, 2002, the case was adjourned to January 6, 2003 at the assignment court, which set the trial date for March 24, 2003. Two reasons played a role in the adjournment. The first related to the defence’s third-party records application. On October 8, 2002, the defence wrote the Crown asking for the complainant’s address. Approximately two weeks later, the Crown responded, indicating that it was unaware of the complainant’s whereabouts. Ultimately, the complainant was located and, on November 18, 2002, seven days before the trial, she was served with the material. However, she subsequently indicated to the court that she wished to retain counsel and was not prepared to proceed.
 The difficulty with the complainant not having counsel on November 25, 2003 may well have been avoided if the defence had set about to serve the complainant before October 8, 2003. As early as January 2001, the defence had indicated to the court its intention to bring a third-party records application. The trial was first adjourned on June 8, 2001 because the defence was not ready to proceed with that application. The trial was adjourned a second time on February 25, 2002 because of the difficulty in locating the complainant. After the second adjournment, it would have been reasonable for the defence to anticipate the need to serve the complainant sooner rather than later, recognizing that she might be difficult to locate and that she might wish to retain counsel. Unfortunately, the defence waited for over seven months before taking any steps. Ultimately, the complainant was served seven days before the trial. However, because she had not retained counsel, the trial was adjourned.
 A second factor that played a somewhat smaller role in the November 25, 2002 adjournment was the lack of availability of a Crown witness — N.C. — who was in the hospital. The Crown was prepared to start the trial without Ms. C.; the defence wished her attendance as a witness.
 On January 27, 2003, upon application by the defence, the trial judge stayed the charges for undue delay. The fourth trial date was therefore never reached. [page535]
 In our view, the circumstances leading to the four-month adjournment on November 25, 2002 are not such that the delay should be treated as systemic or Crown delay.
 We are satisfied that a total of 15 1/4 months’ delay should not be counted as systemic or Crown delay; 2 3/4 months’ intake, 8 1/2 months between the first and second trial dates and four months between the third and fourth trial dates. The balance of approximately 16 months should be considered as systemic delay.
 What constitutes an acceptable period of systemic or institutional delay will vary depending on the nature and the circumstances of each case. There are no fixed or inflexible time limits. However, based on the Supreme Court of Canada’s decisions in R. v. Askov,  2 S.C.R. 1199, 75 O.R. (2d) 673, and R. v. Morin,  1 S.C.R. 771, 71 C.C.C. (3d) 1, a period of eight to ten months’ pre-committal and six to eight months’ post-committal is the current “administrative guideline”. After allowing for a reasonable neutral intake period, the permissible range for systemic or institutional delay is between 14 and 18 months for matters to be heard in the Superior Court of Justice.
 The systemic delays in this case come within the acceptable range for cases to be heard in the Superior Court of Justice. The trial judge erred when he concluded that, in the circumstances, the cumulative delay of 31 months was unreasonable.
 In our view, the delays in this case, properly characterized, do not constitute an unreasonable delay and did not result in a breach of the respondent’s s. 11(b) Charter rights. We therefore allow the appeal, set aside the stay of proceedings and direct that the case proceed in the Superior Court of Justice.