Crown appeal from a judicial stay on the basis that the accused’s right to a trial within a reasonable time under s. 11(b) was violated. 57.5 months’ total delay from charge to end of trial, including four trial adjournments. Issue on appeal of whether trial judge properly characterized the periods of delay.

Held: Appeal dismissed.

Accused waived delay between the third scheduled trial and the fourth trial date, which was an “overbook”. Trial judge did not err in finding that there was no implied waiver of further delay when the fourth (overbooked) trial was adjourned due to lack of judges. “[C]ourts should not draw any inference of waiver where the accused’s consent to a trial date amounted to ‘mere acquiescence in the inevitable’ because of the limited availability of court time …. Further, the trial judge made a finding of fact that the appellant never anticipated further institutional delay of 333 days, a finding that is owed deference. Informed, clear, and unequivocal waiver cannot be based upon that which was not anticipated.”

J. Ruttan – Defence Counsel