HER MAJESTY THE QUEEN
BEFORE THE HONOURABLE MR. JUSTICE S. FOSTER
ON OCTOBER 6, 2004, AT SCARBOROUGH, ONTARIO
P. Woods, Esq. Counsel for the Crown
T. Pain,Esq. Counsel for the Defendant
FOSTER, J. (Orally):
This is my ruling on the s. 11(b) motion. Mr. Hong is charged with what is commonly referred to as domestic assault. On November 18th, 2003 there was a judicial pretrial of this matter. The Crown undertook to provide an English translation of the complainants statement given in Chinese. On the basis of that undertaking the parties proceeded to set the April 21st, 2004 trial date. On April the 6th, 2004 Mr. Hongs counsel was advised that the translation was ready, and he picked it up about one week later. That is, about one week before the trial. On the April 21st trial date the Crown realized for the first time that the translation was for only four of the five pages. Partly, as a result of this, the matter was adjourned to todays trial date of October 6th, 2004. Let me begin by stating that in my view the crucial time in this case is from the date the parties were prepared to set a trial date, namely November 18th, 2003 until todays date some 11 months later. In Morin the Court of Appeal set out clearly that one could reasonably expect a delay of eight to ten months at this level of court. This case is a relatively straight forward one. It involves family matters, which mean any necessary delays may have serious impact on family members. The excessive delays here lie at the feet of the Crown. The defence was entitled to timely disclosure of the will say from the complainant. April 6th, 2004 was far short of timely. I am not prepared to hypothesize as to whether the Crown or defence may have discovered the error sooner, had the disclosure been timely. It was not, and the Crown bears this responsibility. In my view there is a breach of s. 11(b) and for that reason the charge is stayed.
MR. WOODS: Thank you, Your Honour.
MR. PAIN: Thank you
THE COURT: Thank you very much.