Ruling on Section 11(b) Application

Ontario Court of Justice

Between: Her Majesty the Queen — and — Phuong Nguyen, Raymond Tu, Marc Chruszcz, Brandon Prospero

Before: Justice P. Harris

Heard: July 23 and 24, 2012

Reasons for Judgment Released: August 2, 2012

Counsel:

• Mr. Hafeez Amarshi, for the Public Prosecution Service of Canada
• Mr. Alex Trica, for the defendants Nguyen and Tu
• Mr. Norm Stanford, for the defendant Brandon Prospero
• Mr. Marcus Bornfreund, for the defendant Marc Chruszcz

HARRIS, P. J.:

BACKGROUND

[1] On October 10, 2010, all of the above-named defendants were charged with three counts of possession for the purpose of trafficking marijuana and additionally, Phuong Nguyen and Raymond Tu were charged with two counts of possession of proceeds of crime in respect to their alleged collective involvement in a "grow operation" at 23 Bemberg Court, Toronto.

[2] All defendants have applied for a stay of proceedings pursuant to s.11(b) and s.24(1) of the Charter on the grounds of unreasonable trial delay and this application was heard on July 23rd and 24th, 2012.

[3] The charges before the Court were the result of an investigation of a "skunky smell" emanating from the above address. Police arrived to investigate and recognized the smell of fresh marijuana at that address; they then arrested two of the defendants on scene and after a cursory search for others at the residence noted the familiar indicia of a marijuana "grow operation". They then obtained a search warrant and seized paraphernalia, proceeds and usable product well in excess of ten kilograms. All defendants were released on bail within weeks of the charges.

[4] As of the date of this hearing, the defendants have been before the Court for approximately 21.5 months.

[5] I propose to offer a brief chronology of what transpired at subsequent Court appearances after the charges were laid:

9th November, 2010 – awaiting disclosure: (unavailable), no Crown brief;

14th December, 2010 – few more days needed for disclosure: Crown;

5th January, 2011 – awaiting disclosure – Crown to make inquiries;

12th January, 2011 – awaiting disclosure – Crown to make inquiries;

10th February, 2011 – awaiting disclosure (no brief) – Crown to make inquiries;

24th February, 2011 – awaiting disclosure (no brief) – brief being processed for disclosure;

10th March, 2011 – initial disclosure provided – Crown requests March 29 to join all accused on same information;

29th March, 2011 – all accused joined on same information; Crown requests pre-trial; defence argues that they cannot attend Crown pre-trial prior to receipt of I.T.O. in support of search warrant.

2nd May, 2011 – Crown requests pre-trial with defence; defence argues I.T.O. was unsealed March 29 and disclosure of same is required in order to hold a meaningful pre-trial;

16th May, 2011 – Search warrant I.T.O. not yet vetted – case adjourned;

13th June, 2011 – I.T.O. still being vetted; defence awaiting disclosure of I.T.O. before willing to set judicial pre-trial;

7th July, 2011 – all disclosure now received including I.T.O.; judicial pre-trial set for August 10, 2011;

10th August, 2011 – defendant's counsel not in attendance for pre-trial – case adjourned to new judicial pre-trial date;

12th September 2011 – Counsel for Nguyen and Tu not in attendance at judicial pre-trial – case adjourned to new judicial pre-trial date; Counsel for Chruszcz and Prospero states that "s.11(b) is an issue";

12th October, 2011 – dates set for Preliminary Inquiry July 23 and 24, 2012 (described as "first date offered by Trial Coordinator"); no statement of preparation time required or counsel availability; Counsel for Chruszcz and Prospero states that "s.11(b) remains as (sic) issue"; Counsel for Nguyen and Tu stated "our office had earlier dates" and "our clients would have opted for trial in Ontario Court to end this matter sooner";

(the information was remanded to further dates for elections and statements of issues which were not relevant to the s.11(b) issue).

13th April, 2012 – Case brought forward on re-election to trial in Ontario Court of Justice; first two days of trial, July 23, 24 were set aside for the s. 11(b) motion and further trial dates on January 7 and 8, 2013 were selected for continuation of trial if necessary; September 24, 25, 27 and 28, 2012 were not available for two of the defence counsel and November 22 and 23 were dates not available to the Crown;

[6] Each defendant filed an affidavit and was cross-examined in respect to the "prejudice" aspect of the s.11(b) analysis. In terms of the three protected interests of the accused referred to in R. v. Godin [2009] S.C.J. Nov. 26 at para. 30 ─ liberty, as regards to pre-trial custody or bail conditions, security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence in so far as delay can prejudice the ability to lead evidence, cross-examine witness or otherwise to raise a defence ─ each defendant emphasized different concerns. In her affidavit and testimony, Phuong Nguyen indicated that the effects of delay on her resulted in high levels of stress, anxiety and sleeplessness and the need to take medication as a sleep aid, both prescribed and over the counter. There was no medical evidence filed to establish that these difficulties could be causally linked to the delay as opposed to work-related pressures or the impact of the charges on her state of mind. Raymond Tu filed an affidavit and was cross-examined in reference to his contention that the trial delay had an adverse impact on his career, his finance, his relationships and his health in terms of the need for medication for constant stress and anxiety as well as additional medication for asthma. There was no corroborative documentation or medical evidence to establish that these difficulties could be causally linked to the delay as opposed to changing conditions in the economy or the impact of the charges on his state of mind.

[7] Marc Chruszcz filed an affidavit and was cross-examined. He expressed a concern that the trial delay intensified the level of stress and anxiety he felt upon being charged. In addition he stated that his partnership with Brandon Prospero in the Waste Disposal business they jointly operated suffered significantly because Mr. Prospero was unable to participate due to his no-contact bail condition. There was no medical documentation filed in respect to a causal link between his intensified feelings of stress or anxiety and trial delay. There was no evidence adduced to establish that the loss of his partner's participation in the business was caused by trial delay as opposed to the reality that non-association conditions typically flow from charges as co-accused. In addition, the Crown took steps to accommodate most of Mr. Chruszcz's requests for bail variations by agreeing to raise the curfew to 12:00 a.m. and permitting him to travel to Venezuela to see his family (see exhibit 2). Brandon Prospero provided affidavit and testimonial evidence. He gave evidence that as the trial delay increased, his stress and anxiety became more intensified. He contended that the delay in processing the outstanding charges has resulted in loss of employment with fire departments, a lost opportunity to participate in the Big Brothers Program in Toronto, and financial hardship due to the no-contact condition (with Marc Chruszcz) on his bail release, and general difficulty seeking employment. There was no evidence adduced to corroborate his position that trial delay, as distinguished from the fact of being charged with Mr. Chruszcz, was the direct cause of the difficulties he expressed.

ANALYSIS

[8] The defendants have been before the Court for approximately 21.5 months (to July 23, 24, 2012) and this delay raises an over-arching issue of reasonableness and calls for an inquiry.

[9] Whether delay has been reasonable is assessed by considering the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay (inherent time requirements, accused's actions, Crown's actions, limits on institutional resources), the prejudice to the accused and finally by balancing the interests that s. 11(b) seeks to protect: R. v. Godin 2009 SCC 26, [2009] S.C.J. No. 26 para 18 ; R. v. Morin, [1992] S.C.J. No. 25. Accordingly, the issues under consideration will be dealt with in the above-noted order.

Length of Delay

[10] As noted above the total delay to trial is approximately 21.5 months. It should be noted that I am referring to July 23, 2012 as the first day of trial on the grounds that the defendants made a re-election on April 13, 2012 to convert what had been a date for the preliminary inquiry into a trial date. In spite of concessions by Crown to the effect that the delay calculation should extend to the additional trial dates scheduled for January 7, and 8, 2013, I am not bound by erroneous concessions: see R. v. Lahiry 2011 ONSC 6880, para. 35 . It is clear from the case law that if an accused chooses to re-elect trial in the provincial court he or she cannot claim that additional trial delay thereby created, is somehow to be considered trial delay resulting from state inaction for s.11(b) purposes: (see R. v. L.G. 2007 ONCA 654, [2007] O.J. No. 3611 (C.A.) at para. 60 ). Had the defendants elected trial in the Ontario Court of Justice from the outset, a trial date would have been set at the pre-trial on October 12, 2011, rather than a preliminary inquiry date. The delay in making a re-election (six months after the set date, on April 13th, 2012) is entirely the cause of the six month delay from July 23rd, 2012 to the new trial dates in January, 2013. While I recognize that some defendants were prepared to set a trial date on Oct. 12, 2011, "ordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(b) analysis": R. v. L.G., supra at para. 62 . Accordingly, the additional period of delay from July 23 to January 7, 2013 will be recorded as an inherent or neutral period of trial delay attributable to actions of the accused and the late re-election.

Waiver of Time Periods

[11] There were no express waivers of any time period. The only defence waiver occurred on November 16, 2011 and occurred in the context of a requested adjournment for the purposes of filing a statement of witnesses and issues.

Reasons for the Delay

(a) Inherent Time Requirements of the Case

[12] There are three inherent time calculations required in this case: (i) the neutral intake period ; (ii) the periods required for conducting pre-trials ; (iii) delay required for counsel availability and case preparation once the date for trial or preliminary inquiry is set.

[13] The rules of evidence are a set of standards designed to limit the evidence to that which aids the trier of fact in determining the issue in dispute in a fair, practical, and pragmatic manner. The history of the development of the law of evidence is a study in practical solutions for the reception of evidence necessary to the proper determination of the issues before the Court. The section s. 11(b) jurisprudence is particularly noteworthy for its creativity in the introduction of remedial approaches that limit the evidence required so that jurists can make practical decisions in a limited period of time. One such inventive solution that inhabits the realm of s. 11(b) jurisprudence is what we refer to as the inherent or neutral period.

[14] Normally a Court's judgment will be based on the application of law to the facts. The neutral period determination, however, benefits from a judicially-sanctioned shortcut. Here the normal fact finding processes in which Courts are regularly engaged, is excused in favour of a practical solution to the perennial question of how long it should take the litigants in a criminal proceeding to be ready to set a trial date, post-charge. The regular process of examining the minutia of retaining counsel, providing disclosure and every other sort of preparatory task would not only risk the creation of more trial delay, it could potentially damage the integrity of the adversarial process. This novel evidentiary shortcut involves the elimination of the need to adduce evidence to determine the neutral period and permits a trial court to resort to a fact-based inference.

(i) The Neutral Intake Period

[15] As an example of this abbreviated evidence gathering process, Code J. in R. v. Lahiry supra discusses the range of "periods" designated as neutral intake based on the complexity of the case (at para. 19):

The first period was from December 29, 2009 to March 3, 2010 during which the parties retained counsel, prepared disclosure, reviewed disclosure, met with the client, obtained instructions, conducted a pre-trial resolution meeting, and then appeared in court and stated on the record that they were now "ready to set a trial date". These activities are all necessary and beneficial, at the beginning of any case. They are referred to as "the neutral intake period" in the case law and they can vary in length, depending on the complexity of the case. In a simple summary conviction drinking and driving case, like R. v. Morin, supra at pp. 16-17 and 25-6, two months was held to be reasonable. Also see: R. v. Meisner (2003), 57 W.C.B (2d) 477 at paras. 30-32 (Ont. S.C.J.) where Hill J. held that two months was a "normal intake period" in routine drinking and driving cases. In a more complex indictable case of spousal assault and sexual assault, seven and a quarter months was held to be a reasonable intake period. See: R. v. G.(C.R.) (2005) , 206 C.C.C. (3d) 262 at pp. 265 and 270 (Ont. C.A.). Finally, in a very complex multiple accused police corruption and conspiracy case, R. v. Schertzer et al, supra at paras. 77-80, the Court held that the neutral intake period extended for over eleven months.

[16] In my view, the initial period from October 10, 2010 to Feb. 10, 2011 of just over four months was necessary and beneficial to the parties at the beginning of the case and should be designated as a neutral intake period in terms of the s.11(b) analysis.

[17] In explaining this calculation I will first outline the decision-making process and the facts and inferences utilized. As noted above, these neutral period assumptions avoid the practical disadvantages of determining precisely, what period in each case would be necessary and beneficial to both the Crown and defence to take all steps necessary to be ready to set a trial date. Even if an accused retains counsel at the earliest opportunity, the precise time necessary to obtain, prepare, review and vet disclosure in an individual case is generally unavailable and beyond the reach of judicial fact-finding without seriously damaging the adversarial process. One could well imagine how unseemly it would be for a Court to require the Crown's office to justify all of their internal procedures and the allocation of their resources to the task of performing all the necessary post-charge prosecutorial functions particularly in a high volume major urban prosecution service. In fact it would, in a very real sense, have the effect of putting the prosecution on trial and create additional trial delay.

[18] Since the Supreme Court ruling in Morin (1992), supra, where that Court held that a two month neutral period was reasonable for a summary conviction drinking and driving case, Canadian Courts have engaged in the exercise of applying these judicial inferences where there is, for all practical purposes, an irremediable gap in the fabric of the evidence. For ease of reference, I would describe this approach as a Balanced and Reasonable Inference based on the application of Experience to the known Facts ─ or B.R.I.E.F. (no irony intended in acronym).

[19] Employing this new methodology, I would consider this prosecution of four defendants on charges involving an elaborate "grow operation" involving a search warrant as moderately complex. According to case law, the neutral time period should be somewhere between two (drinking and driving) and seven and one-quarter months (indictable case of spousal or sexual assault): Lahiry, supra, para. 19. The case at bar is an indictable charge with multiple accused with the additional complication of a court application for the unsealing of the warrant and the vetting of the Information to Obtain the warrant. This is clearly more than a simple summary conviction matter but less complex than an indictable sexual assault. A balanced and reasonable inference based on experience and the type of charges in this case would result in a neutral period of four months, a determination slightly below the mid-point of the above case law parameters. In fact this is the neutral period suggested by Mr. Amarshi for the Public Prosecution Service.

[20] In assessing a neutral intake period of four months for this case I have endeavoured to identify a reasonable and balanced neutral period of delay while avoiding oversimplifications, particularly in the absence of precise and accurate evidence of the time required for all of the post-charge prosecutorial functions. Code, J. in Lahiry, supra, at para. 22, made the following pointed comments:

Furthermore, the trial judge's focus on the fact that it would only take the police a few days to produce disclosure materials, in such a simple case, is an over-simplification of the function of an intake period. The Crown must also review the disclosure materials produced by the police for completeness and must do any necessary editing. It is then the Crown that makes disclosure, usually at a first appearance in court, and not the police. In addition, the accused must use the intake period to find and retain counsel, preferably before the first appearance. In many cases, this involves applications to Legal Aid. Counsel must then interview the client and any witnesses and must secure and preserve any necessary documentary or real evidence. All of these intake activities involve a number of different players and they all take time.

(ii) The Delay Required for Judicial Pre-trials

[21] The period of delay between July 7, 2011 and October 12, 2011, essentially involved counsel planning, then arranging and attending judicial pre-trials. There seems to be a conflict in the case authorities as to how to characterize the delay needed to schedule and conduct a judicial pre-trial. R. v. C.R.G., [2005] O.J. No.3764 (C.A.) would suggest it is properly considered institutional delay while R. v. N.N.M [2006] O.J. No. 206 (C.A.) states that the time that the parties require to prepare for and conduct the pre-trial is inherent delay and considered neutral. As R. v. Lahiry, supra is binding authority, I conclude that Code's J. characterization of this delay as inherent is dispositive. As well, the recent decision of the Ontario Court of Appeal in R. v. Tran [2012] O.N.C.A. 18 (C.A.), (at para. 34) finally settled this debate and it is now clear that judicial pre-trial delay "should be treated as part of the inherent time requirements of the case".

[22] In all the circumstances I am satisfied that the delay to the first judicial pre-trial between the dates July 7, 2011 and August 10, 2011, a relatively short period, was part of the inherent time requirements of this case. Since one or more counsel failed to attend judicial pre-trial dates between August 10, 2011 and October 12, 2011, I will assess this delay as inherent as well: even though there was no waiver of delay by any defendant, the time invested in these beneficial functions certainly cannot be attributed to any lack of action on the part of the state. Consequently, I will allocate the period of three months consumed by the Judicial pre-trial process between July 7 and October 12, 2011, to inherent delay.

(iii) The Delay Required for Counsel Availability and Case Preparation

[23] This is another area in which precise and accurate evidence of inherent delay would be both time-consuming and damaging to the integrity of the adversarial system – an ideal opportunity for the B.R.I.E.F. approach to a perplexing gap in the evidence. The question at issue here is the matter of attributing inherent delay to counsel readiness (counsel availability and trial preparation) ─ that period after the trial date is set and the point at which the "parties are ready for trial and the system cannot accommodate them": R. v. Morin, supra, at pp. 16, 18, and 26-27. In the instant case, no counsel made representations as to availability or time needed for trial preparation on the date this case was set down for a preliminary inquiry. On the hearing of this matter, senior counsel for Ms. Nguyen and Mr. Tu presented evidence in the form of an affidavit to the effect that these defendants could have been represented at trial on October 13th, 2011, one day after the hearing date was set, and that the law firm's preparation time for these type of charges would be one week. (see exhibits 8 and 9). In my view, a protracted inquiry into each counsel's trial schedule and research/witness preparation facilities would be so time-consuming and damaging to the adversarial process that it would constitute a foolhardy pursuit. In fact, such an inquiry would raise the unseemly spectre of defence counsel being put on trial on the issue of "counsel readiness".

[24] Affidavit evidence on these issues is problematic because any attempt to cross-examine on the affidavit would force counsel off the case because of the impropriety of being both a witness and advocate in the same matter. Equally, differing representations from the counsel table from each counsel, particularly in a multi-accused case, is entirely unmanageable. What would I make of different trial schedules and a different trial preparation estimate from each of the counsel who represent the four co-accused in this case? Would every defendant have a different inherent and institutional delay calculation based on the court schedule and experience of counsel? Most importantly, in my view, this is not a proper way to receive evidence that could be pivotal on the question of whether or not the charges will be stayed for unreasonable delay.

[25] In fact I would caution against the acceptance of "evidence" in the form of representations by lawyers from the counsel table in spite of other learned jurist's apparent acceptance of this practice: see Lahiry, para 33. In my view the fact-finding process in advance of an s.11(b) determination should be undertaken in the traditional manner, under oath or by drawing fact-based inferences. While there may be a tradition of receiving representations from counsel as officers of the Court on minor procedural matters, there is no tradition of receiving substantive trial evidence in this fashion. If we aspire to a judicial process of principle and integrity, only the highest standards in the introduction of relevant, probative evidence in a s. 11(b) proceeding should prevail, particularly having regard to the great importance of the outcome to the accused, society and the public interest in trials on the merits.

[26] The difficulties with reliance on representations from the counsel table and counsel's affidavits are significant. First, assertions about counsel readiness will inevitably be subjective, unverifiable, and differ with each counsel. Some counsel will contend that they could be ready for trial in periods as short as eight days (see para. 23, above). With the proper resources, ability and experience, such an undertaking is entirely feasible considering, for example, the speed at which civil counsel are capable of preparing massive cases for hearing on the Commercial List in Toronto. The real problem with wildly variable counsel readiness positions is twofold: there is an overriding need to maintain consistency between co-accused on the same case in these calculations. Secondly, one's s. 11(b) rights to a remedy for state inaction in bringing a case to trial should not depend on who a defendant chooses as counsel.

[27] Consider Simmons, J.'s comments in R. v. Tran [2012] O.N.C.A. 18 (C.A.), at paras 39 and 40:

Because of defence counsel's failure to put their first available trial dates on the record at the judicial pre-trial in January 2010, it is difficult if not impossible to determine exactly how the delay between the pre-trial and the commencement of the trial should be allocated. In the circumstances, and in the light of defence counsel's unavailability on March 31, 2010 for a one-day s. 11(b) motion in April or May 2010, it is unrealistic to assume that they could have co-ordinated their calendars to schedule even a two-and-a-half-day trial within even a few months of the pre-trial date.

It must also be remembered that counsel had to prepare and serve their various Charter motions and make time to prepare for trial. In all the circumstances, I would attribute no more than three months of this eight-month time frame to institutional delay.

[28] It is noteworthy that in the Tran case there were four co-accused and the subject matter of the charge was a "grow operation" involving a search warrant, a case almost identical to the case at bar. I do not believe I am bound by stare decisis to adopt the five month "inherent delay for counsel readiness" calculation that Madam Justice Simmons made in the above decision. Every case turns on its own facts in relation to the charges, the ability, experience and resources of counsel, complexity of the case, etc. and while the legal principles are binding, the fact-based inferences are not. It is entirely permissible for Ontario trial courts to arrive at different inherent delay values as long as the same fact-based methodology is utilized and that approach is demonstrably balanced and reasonable. Going forward, in light of the ruling of the Court of Appeal in Tran, the recommended approach would seem to be ─ that in the absence of actual vive voce evidence, trial judges should proceed with extreme caution where an individual's rights are at stake lest that jurist be thought to be acting arbitrarily.

[29] As noted above, the over-arching problem created by the filing of affidavit evidence on these issues ─ counsel availability and preparation time ─ is the spectre of counsel giving evidence and being cross-examined, a process with the potential to damage the adversary process and create more delay. It would be unseemly in the extreme if counsel were put on trial to examine their availability and preparation time. One could imagine an inquiry into counsel's caseload, office resources, research methodologies and witness preparation in advance of trial. In this case, revelations about counsel's preparations for a Garifoli proceeding ( R. v. Garifoli , [1990] 2 S.C.R. 1421) could be very damaging to the defence should the s. 11(b) application not be successful. What is needed is an evidentiary mechanism that would be a reasonable substitute for actual fact-finding or counsel-table submissions on the question of counsel's court schedule and trial preparation.

[30] As with the neutral intake calculation, this is another challenging dilemma involving a gap in the evidentiary fabric that cannot be easily resolved in the traditional trial process. In the past, the solution has been to adopt what I have described as the B.R.I.E.F. strategy to settle a pre-trial issue briefly, reasonably and in a balanced fashion having regard to the potential damage to the integrity of the adversarial system to do otherwise.

[31] With the greatest respect to counsel who filed affidavit evidence on these points, I will decline to accept that evidence in favour of the B.R.I.E.F. approach to the attribution of inherent delay for the above noted reasons. In my view, a Court should endeavour to resolve three questions before applying the B.R.I.E.F. assessment to the issues.

First, is the defendant represented by experienced counsel in a busy litigation practice? This query addresses the question of counsel's trial availability and the time frame to become ready for trial.

Second, would the defendant be prepared to be represented by an employee or associate of original counsel so as to reduce trial delay? It is recognized that the defendant may have to decide between competing Charter rights ─ the right to counsel of his or her choice or the right to trial with a reasonable period of time. The Court should not assume that a defendant will accept representation by alternate counsel in the absence of a signed authorization filed on the date the trial is set.

Third, how complex and time-consuming will case preparation be? This is a question that will be answered by information about counsel's expertise in relation to the charges, the resources at the disposal of counsel, and the complexity of the matter before the court. Will it involve the collection of transcripts for an s.11(b) hearing; will it involve the serving and filing of Notices and Application Records for Charter relief? Will it (as it might in this case) involve the preparation of other complex applications such as a Garifoli, supra, proceeding?

These three factors will be carefully considered in advance of the application of the B.R.I.E.F. calculation.

[32] Accordingly, I make the following determination: all counsel acting in this matter are reasonably experienced or supervised by experienced counsel and I will accordingly endeavour to draw balanced, reasonable inferences about their availability and the preparation required:

(1) With no evidence of authorizations permitting alternate counsel to act for each defendant at trial, I will assume most experienced counsel do not have a free trial date for 30 days, going forward, from the date the hearing was set October 12, 2011.

(2) In this case I should approach the attribution issues as if a trial date had been set for July 23, 24. If that had occurred, the section 11(b) hearing would likely have occurred in advance of the trial date as is the current practice, and I will therefore not include the s.11(b) proceeding in any calculation of trial preparation. I should also assume for these purposes that if the case was proceeding to trial, it would very likely be focussed on two issues: (1) possession: what evidence was there of knowledge and control in relation to the premises? and (2) a section 8 Charter attack on the search warrant and a Garifoli supra, proceeding in order to cross-examine the affiant of the I.T.O. In all the circumstances, I would attribute a further 45 days to inherent delay under the category of trial readiness based on the preparation of witnesses for the trial issues and cross-examinations of police officers involved by reasonably experienced counsel. This calculation also includes the filing of a timely Notice of Application under the Rules of Court and an Application Record for the Section 8 search warrant challenge and the accompanying Garifoli application.

[33] The key feature of this calculation must be 'balance'. The trial judge has an important duty to see that the scales of justice are evenly balanced: R. v. Darlyn (1946) , 88 C.C.C. 269 (B.C.C.A.). A balanced and reasonable inference based on the application of experience to the known facts would produce an attribution of 2.5 months total inherent delay in respect to counsel availability and trial preparation. I would in fact be astounded if experienced, effective counsel required more than 2.5 months to be ready for trial. The attribution of a longer period to inherent delay in this case in my view would lack balance and render the defendant's section 11(b) Charter protection an illusory remedy for unreasonable trial delay.

(b) Actions of the Accused

[34] The Crown argues that the action of the accused in refusing to set a Crown or judicial pre-trial between the dates March 29, 2011 and July 7th, 2011 had the effect of contributing to the delay. The defendants argue that in the absence of disclosure of the I.T.O. which was not made available until June 15, 2011, there would essentially be nothing to discuss at a pre-trial, given the fact that the search warrant resulted in seized materials that formed the basis of the charges. There is a line of binding authority that essentially all but eliminates a defendant's prerogative to hold the pre-trial process in abeyance while awaiting disclosure. R. v. Stinchcombe , [1991] 68 C.C.C. (3d) 1 at para. 13 – 14 (SCC) envisioned a process in which "initial disclosure" was to be provided by the Crown prior to the accused making crucial decisions such as election and plea. Initial disclosure in the instant case was provided on March 10, 2011. The Ontario Court of Appeal decision in R. v. Kovacs-Tatar , [2004] O.J. No. 4756 (C.A.) para. 47 held that because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. Finally in R. v. N.N.M. , [2006] O.J. No. 1802 (C.A.) Juriansz J.A. concluded that where initial disclosure has been made, the defence is not necessarily entitled to refuse to proceed to the next step in the process (at para. 37):

Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial (See also R. v. Lahiry, supra, at para. 114).

[35] While the Crown must have known that the method used to obtain the search warrant would be relevant information to be disclosed to the defence as part of the prosecution, and this case was not a model of the Crown's case management or disclosure system (see R. v. Osei [2007] O.J. No. 768 (Ont. Sup. Ct.) paras 22 and 23 for another instance of this same pre-trial difficulty), it seems that relevant case authorities now oblige the defence to attend mandatory judicial pre-trials even in the absence of very important and significant disclosure such as the "information to obtain". The reality is that if the prosecution continues to adopt a leisurely approach to producing this very significant and mandated disclosure, it will likely face the disapprobation of the pre-trial Judge and sustain damage to its public reputation. As Code, J. in R. v. Lahiry supra, (at para 114) points out, the trial or hearing date should be set and if dilatory Crown disclosure practices prevent the trial or preliminary hearing from proceeding, that date can then be adjourned and the Crown's actions will have caused the delay.

[36] In all the circumstances, as a result of authoritative rulings on the subject, I am satisfied that the defence acted unreasonably in the period from March 29, 2011 to July 7, 2011 in refusing to set a judicial pre-trial and I would therefore characterize this three and one-quarter months as delay caused by the conduct of the defence.

(c) Actions of the Crown

[37] There are two instances in which the Crown was dilatory in its obligations. I have characterized the neutral intake period as extending from the date of the charges to February 10, 2011. Initial disclosure was not provided until March 10, 2011. I would allocate the cause of that delay to the Crown. No explanation was offered as to why this disclosure was not made available within a reasonable period of time; indeed, Mr. Amarshi, the Crown on this application fairly conceded that one month of delay should be attributed to the Crown for causing this delay.

[38] Additionally, a further 19 days of delay should be attributed to the Crown, in my view, in respect to the delay between March 10, 2011 and March 29, 2011. The Crown requested the case be adjourned from March 10 to the 29th for the purpose of joining all defendants on the same information. This step was a foregone conclusion from the earliest stages of this prosecution in October, 2010. The neutral intake period is a no-fault period of orientation in which all necessary steps are taken by Crown and defence to ensure the prosecution is properly launched and prepared to proceed to the next level. There is no explanation as to why the joinder of all defendants could not have taken place during the preparatory stages of the prosecution. I would characterize this delay as caused by the prosecution. Accordingly, under the rubric of "actions of the Crown", I would attribute one month, nineteen days of delay to the Crown.

(d) Limits on Institutional Resources

[39] The limits on institutional resources are well known in the Ontario Court of Justice, where even today, some twenty-two years after the first Supreme Court of Canada decision on s.11(b) of the Charter ( R. v. Askov , [1990] 2 S.C.R. 1199) trial dates are routinely being set on dates in the future which are within and often at the upper end of the guidelines as outlined in that decision ─ and are potentially in jeopardy should the cases require any further delay. The systemic delay in this case is the period from set-date to the trial date less an inherent period in the form of counsel availability and trial preparation delay which I have calculated as follows: nine and one-half months (set date to trial date) less an inherent period of delay (counsel readiness) of two and one-half months, for a total of seven months systemic or institutional delay.

(e) Other Reasons for the Delay

[40] All delay in this case has been covered in my analysis under other headings. Counsel has not argued for the attribution of delay to any other factor in this case.

Summary of Trial Delay Allocations to Trial Date July 23, 2012

[41]

• (1) Neutral Intake (inherent delay): 4 months
• (2) Inherent Delay for Judicial pre-trials: 3 months
• (3) Inherent delay for counsel readiness: 2.5 months
• (4) Actions of the defence in refusing to set a pre-trial: 3.25 months
• (5) Actions of the Crown - late disclosure and joinder: 1 month, 19 days
• (6) Institutional or systemic delay: 7 months

Total delay directly attributable to the Crown or pursuant to its responsibility for systemic delay is 8 months, 19 days.

Prejudice

[42] The key feature of this analysis involves the distinction that was first articulated in R. v. Quereshi , [2004] O.J. No. 4711 (C.A.) to the effect that it is not the prejudice that flows from the fact of being charged, but rather prejudice that is caused by the delay after being charged. As well, inherent prejudice may be inferred from the length of the delay. As Cromwell J. in R. v. Godin 2009 SCC 26 , [2009] S.C.J. No.26 (SCC) pointed out: "it is reasonable to infer that the prolonged exposure to criminal proceedings resulting from delay gives rise to some prejudice". Prejudice is interconnected with delay in the sense that the longer the delay the more likely that inherent prejudice will be inferred. The corollary to this proposition is that the absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable: R. v. Morin, supra. (see also R. v. Seegmiller [2004] O.J. 5604 (C.A.)).

[43] All defendants filed affidavits and were cross-examined by the Crown (see paragraphs 6 and 7 above). The evidence adduced could fairly be described as focussing on the security interests of each defendant as opposed to the other two Charter protected interests stipulated in R. v. Godin, supra. Central to an individual's security interest is the concern about the overlong subjection to the stigmatization, loss of privacy, stress, anxiety, sleeplessness, psychological harm, business losses and interference with a person's familial relations. All defendants expressed serious impacts from many of the above-noted forms of personal hardship. Unfortunately, there was no specific, detailed evidence in the form of medical or business documentation to prove these effects purportedly suffered on a balance of probabilities nor was there any evidence forthcoming to establish that the purported prejudice was caused by delay associated with the charges, as opposed to the charges themselves. For the proof of actual prejudice one would expect more than an affidavit from each defendant: R. v. George 2006 MBCA 150 , [2006] M.J. No. 450 (C.A.); R. v. Martin [2001] B.C.J. No. 1515 (C.A.). In the end result, I am satisfied that each defendant has suffered a modest degree of actual prejudice to his or her security interest as a result of trial delay, particularly in terms of financial costs. As well a modest degree of inherent prejudice can be inferred in respect to each defendant as a result of the general vexations and vicissitudes of delay in having these pending criminal accusations concluded.

Balancing

[44] The final consideration involves a balancing of the problems that the delay has caused these defendants and society's interests in having charges concluded on the merits. It is well accepted that society's interests in a trial on the merits increases as the seriousness of the charges increases. It must be acknowledged that the charges before the court are relatively serious. The exercise of balancing competing interests is described by McLachlin J. in concurring reasons in R. v. Morin, supra:

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

[45] As noted above, the total delay directly attributable to the Crown or pursuant to its overall responsibility for systemic delay is 8 months, 19 days. This trial delay is well within the Askov/Morin guidelines of eight to ten months and by my calculation, is not excessive. I have determined that the inherent and actual prejudice to be inferred with respect to each defendant should be characterized as modest. It follows that the amount of delay that is tolerable in this case must be at the upper end of the range given the modest level of actual and inferred prejudice to the defendants particularly having regard to the fact that there were no real trial delay impacts on their liberty or fair trial interests (see R. v. G. (C.R.) , [2005] O.J. No. 3764 (C.A.)).

[46] While I recognize that the Supreme Court has made it clear many years ago that as time passed, it would be expected that trial delay would conform to the lower end of the guidelines ( R. v. Sharma (1992) , 71 C.C.C. (3d) 184 (SCC)), still, in balancing all the considerations, the amount of the delay, the reasons for the delay, the prejudice to the defendants arising from the delay, I am not satisfied on a balance of probabilities that the defendants have established that their interests and society's interest in a prompt trial outweighs the interests of society in a trial on the merits. I have concluded that the defendant's section 11(b) rights have not been breached and the application will therefore be dismissed.

P. Harris J.