Current & Curious: Is the merit of a prosecution a factor in determining unreasonable delay?

Viktor Sokolovski operated a martial arts club aimed at young people. It was alleged that he assaulted five of his students during the years that he trained them. Specifically, he was charged with eight counts of assault with a weapon, five counts of assault and a single count of uttering a death threat. The defence brought an application seeking a stay of proceedings based on unreasonable delay. Blouin J. of the Ontario Court of Justice applied the factors set out by the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and granted the stay of proceedings: 2012 ONCJ 759.

The Morin criteria are frequently employed in cases to determine whether the delay in bringing a case to trial was excessive and therefore warranted a stay of proceedings. What makes this case interesting is the focus of Mr. Justice Blouin on the merits of the case under the rubric of “limits on institutional resources”. After commenting on the harsh realities of limited judicial resources, the judge proceeds to comment on the case:

Mr. Sokolovski is a 58-year-old man with no criminal record.  He operates a martial arts school for young children.  The allegations essentially are that he, at certain times over a multi-year period, used physically excessive training techniques on five children.  No bodily harm was ever alleged.  While I completely understand why parents would not want their child subjected to the defendant’s approach, I fail to understand why a 10-day trial would be required to hold him accountable for his actions.

Again, let me emphasize that I am not concluding that the defendant’s actions should never attract a finding of guilt, but that, with limited resources, the Crown must employ other methods to protect the public, that don’t involve using court time to deter-mine guilt.  One possibility would be victim/offender(s) mediation, which is available in this jurisdiction.  There are plenty of cases higher on the scale of seriousness that require that precious court time.  Given the consequences to this defendant having been hand-cuffed upon arrest in front of his students, and having suffered a significant decrease in business as a result of the charges laid, and having had to hire counsel to protect his liberty and security interest, I find the defendant had suffered a substantial penalty within months of his arrest and even before any trial was contemplated [paras 14 and 15]; [emphasis added].

In Morin, the Supreme Court of Canada in discussing the “limits on institutional resources” described the interaction between the competition amongst government programs for limited resources and the rights of the accused. The majority in Morin commented that the Court could not simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. In order to avoid being put in the position of assessing the merits of various government programs, the Court simply set out a guideline within which criminal matters should be heard. The Court explicitly did not want to turn s. 11(b) applications “into a trial of the budgetary policy of the government as it relates to the administration of justice” [Morin at para 51].  In taking this approach, the majority in Morin sought to avoid having courts assess how governmental or prosecutorial choices are made in terms of the allocation of scarce resources.

In Sokolovski, Blouin J. acknowledges that it is not the role of the judiciary to decide what cases get prosecuted. Nevertheless, in his analysis, he interjects a novel articulation of the “limits of institutional resources” factor that could be interpreted as doing just that:

I am perfectly aware that my role is not to determine what gets prosecuted and what does not.  In a perfect world of unlimited resources, this case might well have been appropriate to use 10 days of court time to determine the defendant’s culpability.  However, in the imperfect world in which we operate, allocating substantial resources to a case such as this significantly decreases the ability of the system to handle all others.  Inevitably, delay occurs.