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OFFENCES AND ENFORCEMENT - Human smuggling and trafficking

Wednesday, February 20, 2019 @ 7:59 AM  

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Appeal by the Crown from stay of proceedings granted to the respondents pursuant to their s. 11(b) Charter application. The respondents faced charges of conspiring to smuggle 10 Polish nationals from Canada into the United States. The information was sworn in November 2014. The five-week joint trial was expected to conclude in March 2018. Defence counsel had rejected multiple dates offered for the scheduling of judicial pre-trials and the three-week preliminary inquiry because of previously scheduled commitments. The total delay the trial judge considered was 39.75 months. He determined that almost a third of the delay arose from delay in scheduling the judicial pre-trial conferences and the preliminary inquiry, which he characterized as institutional delay. He found the delay was not justified by any exceptional circumstance or transitional exceptional circumstance. The trial judge concluded the respondents’ rights had been violated because of the unreasonable delay in bringing their matter to trial.

HELD: Appeal allowed. The characterization of the periods of delay and the ultimate decision as to whether there had been unreasonable delay were reviewable on a standard of correctness. The trial judge erred in his application of the R. v. Jordan framework. He mischaracterized the delays due to defence counsel unavailability as institutional delay. Defence counsel’s unavailability due to previous commitments fell squarely within the category of delay that counted against the defence. None of the respondents were held hostage by his co-accused’s counsel’s unavailability as they had proceeded through the system collectively. After deducting defence delay, the remaining delay of 29 months was reasonable.

R. v. Albinowski, [2018] O.J. No. 6892, Ontario Court of Appeal, R.J. Sharpe, R.G. Juriansz and L.B. Roberts JJ.A., December 28, 2018. Digest No. TLD-February182019005