R v Burnett

Her Majesty the Queen v. Wayne Burnett

2005 CanLII 28532 (ON SC)
Superior Court of Justice - Ontario — Justice Durno | August 15, 2005

Background

Wayne Burnett was charged with assault after allegedly beating up a fellow employee at his workplace. The incident cost him his job — he received a termination letter from his employer prohibiting him from returning to the workplace. With no income, Burnett applied for legal aid but was refused. He then spent several months trying to scrape together enough money to retain private counsel, Douglas Lent.

When Lent finally came on board, he asked for multiple 3-4 week adjournments before setting a trial date — standard practice for lawyers who want full payment before proceeding. The case was eventually scheduled for what should have been a three-hour trial, but the justice of the peace misread the form and announced it would be a one-hour trial. After running 90 minutes on the first day without finishing, the trial had to be adjourned to a new date months later.

Issues

1. Did the trial judge err in granting a stay of proceedings under s. 11(b) of the Charter for unreasonable delay?
2. Should delay caused by the accused's financial difficulties in retaining counsel count against the Crown in the s. 11(b) analysis?

The 11(b) Delay Analysis

The Crown appealed the trial judge's decision to stay the charges, arguing that Burnett had deliberately delayed the proceedings and shouldn't benefit from his own conduct. Justice Durno disagreed. The court found that while Burnett's actions did cause delay, there was no evidence he was "truly malingering" or deliberately trying to build up delay for a later Charter application.

The court recognized two different approaches lawyers take to retainers: some will get on the record immediately with just a deposit, while others (prudently) want full payment before setting trial dates. Burnett's lawyer chose the latter approach, which is legitimate practice — not a scheme to create delay. As Justice Durno noted, "it would only be if there was a finding that defence counsel was somehow complicit in a scheme to build up delay for later trial delay use, that the adverse inference could be drawn."

The court also found that the trial judge had incorrectly attributed Burnett's difficulty retaining counsel to his bail conditions, when in fact he was prohibited from his workplace by his employer, not the court. However, this error didn't affect the overall s. 11(b) analysis, which properly categorized the pre-counsel period as "neutral time" rather than systemic delay.

Key Takeaway

Financial hardship that delays your ability to retain counsel won't automatically defeat a Charter delay application, provided you're not deliberately gaming the system.

If you're struggling to afford a lawyer and it takes time to get representation, that delay is considered "neutral" — it doesn't count for or against you in an 11(b) application. The key is acting in good faith throughout the process.