L’évitement d’un délai déraisonnable est un motif approprié pour le dépôt d’un acte d’accusation direct

R. v. Bulhosen, 2019 ONCA 600

Lien vers la décision

[86]      The appellants say that after allowing for 5 months of “intake”, they spent 7.5 months in the Ontario Court of Justice waiting for a preliminary inquiry that never materialized. This time, between February and October 2015, was “wasted” and, unless explained, cannot be cured by preferring an indictment. They say the 30-month presumptive ceiling reflects the inherent time requirements of a case with a preliminary inquiry. If the Crown prefers an indictment during the “normal intake period” there is no reason why a higher presumptive ceiling should apply. If the indictment is preferred at a later date, so the argument goes, the Crown must explain why it “wasted” time preparing for the preliminary. If it fails to do so, preferring the indictment cannot cure unexplained “past delay”.

[87]      I do not agree.

[88]      It is well settled that the Crown’s decision to prefer an indictment is a matter of prosecutorial discretion and is reviewable only for abuse of process: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 24; and R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 44, 48, 51. The Crown has no obligation to give reasons to justify its decision, absent an evidentiary basis for a claim of abuse of process: Anderson, at para. 55; and R. v. St. Amand, 2017 ONCA 913, 358 C.C.C. (3d) 226, at para. 23.

[89]      It has been recognized for some time that the avoidance of unreasonable delay is an appropriate basis on which to prefer an indictment: see Law Reform Commission of Canada, Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990), at pp. 93-94; R. v. Charlie (1998), 1998 CanLII 4145 (BC CA), 126 C.C.C. (3d) 513 (B.C.C.A.), at para. 32; and S.J.L., at para. 38.

[90]      Thus, in Manasseri, at para. 376, n. 5, Watt J.A. observed:

Direct indictments under s. 577(a) of the Criminal Code have been infrequent in this province. However, after Jordan, with full disclosure as required by Stinchcombe, the Crown should give very serious consideration to preferring direct indictments to fulfill its mandate under s. 11(b) and to ensure, to the extent reasonably possible, that criminal trial proceedings do not exceed the presumptive ceilings set by Jordan.

This recommendation was expressly endorsed by the Manitoba Court of Appeal in R. v. C.M.M., 2017 MBCA 105, [2018] 2 W.W.R. 213, at para. 14. Moreover, as previously noted, the case management judge in the Ontario Court of Justice specifically advised the Crown in this case that it might need to seek a direct indictment in order to keep the proceedings moving forward.

[91]      I do not accept the appellants’ distinction between “past delay” and “future delay”, a distinction found nowhere in Jordan. Nor do I accept the appellants’ premise that preferring an indictment lowers the presumptive ceiling unless explained. This approach would restrict the utility of the preferred indictment as a remedial tool to ensure the protection of s. 11(b) rights.

[92]      Nor do I accept that the time in the Ontario Court of Justice prior to the preferred indictment was “wasted”. Similar arguments were rejected in Maone, at paras. 20-21, and in Millard, at para. 58, where Code J. observed:

[T]he main premise of the Applicant Smich’s argument in favour of the eighteen month ceiling is that the time spent in the Ontario Court of Justice is “wasted,” when a direct Indictment is preferred, because the accused has been denied the benefit of a preliminary inquiry. In particular, it was submitted that the time has been “wasted” when the Indictment is preferred “on the eve of the preliminary inquiry.” I do not accept this premise. The time that a case spends in the Ontario Court of Justice, prior to a preliminary inquiry, is extremely valuable. Bail hearings are held, the accused has time to retain counsel, initial Crown disclosure is made and then reviewed by the defence, ongoing Crown disclosure is substantially completed and defence requests for further disclosure are made, counsel interview witnesses and preserve evidence that may be needed at trial, counsel take instructions from the client and negotiate resolutions, judicial pre-trials are held where the case against certain accused can be finally resolved and where admissions that shorten and simplify the case can be negotiated. See: R. v. Maone et al., 2017 ONSC 3537 at para. 21. In short, the time spent in the Ontario Court of Justice prior to preferring a direct Indictment is not “wasted” and it cannot simply be discounted or ignored, when determining a reasonable presumptive ceiling for overall delay. It is valuable time that the parties use and need.

[93]      The same occurred here. During the so-called “wasted” time between February and October 2015, some of the accused were still seeking counsel, Crown disclosure was taking place and there were three case management conferences. Resolution discussions took place and 4 of the original 14 co-accused pleaded guilty. Efforts were made by the Crown, albeit sometimes unsuccessful at the time, to shorten and simplify the case. While not all of these efforts were immediately successful, they helped to pave the way for expedited trials for five of the seven appellants – trials that were, in fact, completed within the 30-month presumptive ceiling. The application judge did not err in failing to characterize the time spent in the Ontario Court of Justice prior to the preferring of the direct indictment as “wasted”.

[94]      For these reasons, I reject the appellants’ submission that the Crown was required to explain the delay in preferring the indictment and that this had the effect of reducing the presumptive ceiling.