New & Notable: Cautionary words on delay

Kerry Wong wanted a speedy trial.  He complained that he did not receive one.  Trotter J disagreed.  So too did the Ontario Court of Appeal: 2012 ONCA 286.  On appeal Wong raised two periods of time about which he complained Trotter J had erred in considering on his 11(b) motion for a stay of proceedings.

First, he complained about a period of about 4 and ½ months – a delay that occurred when the preliminary hearing could not be completed in the original two days set aside.  Second, he complained about a period of about 6 weeks – a delay that occurred while the preliminary hearing judge reserved her decision.

With respect to the first period of delay the Court of Appeal agreed it was neutral: “[t]he record shows that efforts were made to find the earliest possible dates to continue the preliminary inquiry.  The court and the Crown did not treat this as business as usual but were obviously conscious of the delay” [para 2].

With respect to the second period, the Court of Appeal also agreed it was neutral.  This period of time was not unreasonable especially given evidence about the lack of judicial resources.

Despite dismissing Wong’s appeal and agreeing that the 11(b) motion should have been dismissed, the Court of Appeal offered the following comment:

We cannot leave this case without noting one troubling aspect of this case, however. As we have said, the focus of the appellant’s complaints were around the delay after the preliminary inquiry could not be completed within the original time allotment. However, it was the fact that those original dates were set almost a year after the parties were ready to set a date for the preliminary inquiry that put this case in jeopardy. It was this very limited capacity in the Ontario Court of Justice to accommodate a two-day preliminary inquiry that posed the greatest challenge to the system. And it was only because the overall delay in both the Ontario Court and the Superior Court of Justice was not unreasonable that this case was not stayed. It is troubling that 30 years after proclamation of the right to a speedy trial, that right remains precarious in some jurisdictions [para 5].