R v Allen

R. v. Allen

2009 CanLII 55381 (ON SC)
Ontario Superior Court of Justice — Justice Backhouse | September 22, 2009

Background

Omar Allen was charged on June 26, 2007 with trafficking in cocaine and possessing proceeds of crime. His trial was scheduled for February 23, 2009 — about 19 months after the charges were laid. That would have been within the acceptable guidelines. But three days before the trial, the Crown asked for an adjournment because one of their key witnesses, a police officer, was on vacation in Mexico.

Here's where it gets interesting: the officer had been notified of the trial date back in December 2008, and the date was confirmed at a trial readiness conference on February 2, 2009. Yet somehow, the officer only realized three days before trial that he had a conflict. By then, he'd already booked his vacation. The Crown couldn't even explain how this happened — they hadn't been able to reach the officer for an explanation.

Issues

1. Did the 27-month delay from charge to trial violate Allen's Charter right to trial within a reasonable time?
2. Should the Crown's adjournment request due to officer unavailability be attributed to Crown delay?

The Section 11(b) Analysis

Section 11(b) of the Charter guarantees trial within a reasonable time. The Supreme Court's Morin guidelines set the benchmark at 14-18 months total for provincial court matters. Allen's case took 27 months — 9 months over the limit.

Justice Backhouse found that 8 months of the excess delay was the Crown's fault: 1 month for slow disclosure (60 pages that should have taken 1 month, not 3), and 7 months for the adjournment from February to September 2009. The Crown tried to argue that Allen's lawyer had been offered an earlier September date but declined it, but they provided no evidence to support this claim.

The court was particularly critical of the officer's conduct. There was no explanation for why he only discovered the trial conflict three days beforehand, despite multiple notifications. Even worse, once he knew about the conflict, he chose his vacation over the accused's Charter rights. As Justice Backhouse noted, this was pure negligence — not an unavoidable circumstance like a witness disappearing or a judge recusing themselves.

Allen also suffered actual prejudice: his bail conditions forced him to move from Toronto to Mississauga and live with his surety, plus he was subject to a curfew. The court found that the 27-month delay created additional stress and anxiety, and potentially impaired the fact-finding function since this was an identification case where memories fade over time.

Key Takeaway

Crown negligence in managing witnesses can kill an otherwise solid case through unreasonable delay.

If you're facing charges and the Crown seeks adjournments due to witness unavailability, document everything and consider whether this might be building a section 11(b) application. Poor case management by the prosecution is not your problem — it's a Charter violation that can result in a complete stay of proceedings.