R. v. Antic, 2019 ONCA 160
[4] The first issue involves the time needed to set a date for a preliminary inquiry that ultimately never occurred. This resulted from the fact that the accused changed counsel on the day that the preliminary inquiry was to commence. The appellant, with his new counsel, eventually waived the preliminary inquiry in favour of proceeding with a trial in the Ontario Court of Justice.
[5] The appellant accepts that the delay from the scheduled start of the preliminary inquiry to the time when the trial date was set is defence delay. However, the trial judge also attributed the time, from when the preliminary inquiry date was set to the planned commencement of the preliminary inquiry, to the defence. The trial judge reasoned that, while the time to set the preliminary inquiry date would normally be considered institutional delay, in this case since the preliminary inquiry was eventually waived, it was not properly considered institutional delay. In other words, had the appellant decided on a trial in the Ontario Court of Justice at the outset, there would have been institutional delay arising from setting the trial date, which there was in this case in any event, but there would not also have been the institutional delay from setting a preliminary inquiry date.
[6] We do not see any error in the trial judge’s analysis on this point. There wound up being two institutional delays arising from the setting of dates – one was the preliminary inquiry date and the other was the trial date. Had the appellant waived the right to a preliminary inquiry at the outset, the institutional delay in setting a date for the preliminary inquiry would have been avoided. At the very least, had the appellant decided to waive the preliminary hearing well in advance of its scheduled commencement, the time could have been used for other matters. The Crown had subpoenaed witnesses and was prepared to conduct the preliminary inquiry on the scheduled date. The appellant appeared on that date and without warning to any of the other participants indicated that he wanted an adjournment to retain new counsel. Jordan indicates at para. 138 that defence counsel are expected to use court time efficiently. The fact that that delay was not avoided lies at the feet of the appellant. The trial judge was correct to deduct that period of time as defence delay.
[7] The second issue is with respect to the delays that occurred when the trial was not completed in the time frame originally contemplated. Dates for the continuation of the trial had to be found. One set of dates was made available in July and a further set of dates was made available in December. While the court was available on certain earlier dates, either Crown counsel or defence counsel was not. The trial judge began by considering the delay in getting to the continuation of the trial as having to be attributed between the Crown and the defence and attributed one and one-half months to the defence.
[8] However, later in her analysis, the trial judge deducted the entire five month period between July and December as an exceptional circumstance. She concluded that the additional time needed to complete the case was unpredicted by both counsel. It was the result of unforeseeable or unavoidable developments and thus constituted an exceptional circumstance: Jordan at para. 73. As noted in R. v. Jurkus 2018 ONCA 489 at para. [55], “where a trial goes longer than “reasonably expected”, even where the parties have in good faith attempted to establish realistic timelines” it is “likely that the delay was unavoidable.” In our view, the trial judge correctly treated this period of delay as an exceptional circumstance given her findings as to how it arose. We note, in passing, that this case does not engage the type of individual analysis arising from the unavailability of defence counsel when there are joint accused, that this court had to consider in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171. The appellant’s reliance on that case is misplaced.
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