Court File and Parties

Between: Her Majesty the Queen

And: David Huha

Counsel:

• S. Beauchamp for the Crown
• K. Oja for the Defendant

Heard: May 7, 2013

Reasons for Ruling

(Re Charter s.11(b) Application)

Justice Melvyn Green

A. Introduction

[1] The defendant, David Huha, is alleged to have acted violently at a Toronto bus station on the evening of December 1, 2011. He was arrested at a distant location the next day, ultimately facing charges of mischief to property, causing a disturbance and assault causing bodily harm. His trial was fixed for July 2 and 3, 2013, some 19 months later. The defendant moved to have the charges against him judicially stayed as a remedy for a claimed infringement of his Charter s. 11(b)-guaranteed right to be tried within a reasonable time. I granted this application on June 14th last. My reasons follow.

B. Evidence

(a) The Factual Allegations

[2] The defendant has a physical disability. He relies on a motorized scooter for his mobility. On the morning of December 1, 2011, he is alleged to have gotten into an argument with the driver of a TTC bus at a station on Eglinton Avenue West in Toronto. The driver cleared the bus of passengers as a result of the defendant's screaming and swearing. A verbal altercation with one of the disembarked passengers followed, culminating in the defendant pushing the woman, the complainant, on the shoulder and causing her to fall into another woman. The defendant is later alleged to have lunged at the complainant with a cocked fist and to have tried to intimidate her while she awaited EMS attention in a bus. The complainant suffers from scoliosis and suffered upper body injuries requiring a CAT scan.

[3] The defendant was arrested the next day, December 2, 2011 and released on an Undertaking. An Information charging him with the three offences was sworn on December 6, 2011 and he was first required to attend court on January 31, 2012, some eight weeks later.

(b) A Chronology of the Proceedings

[4] The chronology of the benchmark events in the defendant's prosecution is primarily documented in the transcripts of the repeated court appearances and the exchanges of communication between counsel. This documentation is supplemented by affidavits filed by the defendant and his original counsel, John Erickson. The respondent Crown declined to cross-examine either affiant.

[5] Initial disclosure was provided on the defendant's first appearance on January 31, 2012. The matter was adjourned three weeks to February 22nd to permit counsel to review the disclosure package. Counsel reviewed the package on February 1st (the day after it was provided), determined the disclosure was incomplete and faxed an itemized disclosure request to the Crown that very day. Among the specified "missing" items were the notes of various identified police witnesses, including those of PC Sirbos who is described in the disclosed materials as the "original investigating officer" and who is the officer to whom identification of the defendant, who was not arrested until the next day, is attributed. Although only vaguely detailed in his fax, Mr. Erickson also sought disclosure of a DVD of TTC surveillance videos that were referred to in the General Occurrence Report. Counsel's intention, as averred in his affidavit, was to set down the defendant's trial on the scheduled return date of February 22nd.

[6] Counsel, Mr. Erickson, did not receive a response to his faxed letter. However, the defendant was provided with some additional disclosure on his February 22nd appearance, including a DVD that was described in an accompanying confidentiality undertaking as "DVD – Surveillance". The matter was put over to March 21st to review the fresh disclosure and, in the interim, conduct a Crown pre-trial.

[7] Mr. Erickson endeavoured to fix a Crown pre-trial that same day, February 22nd. He was advised that the assigned Crown would contact him to schedule the pre-trial. Having heard nothing by March 1st, Mr. Erickson faxed a Pre-Trial Request Form to the Crown Office that day. He received no response to his communication. As a result, the matter was adjourned on March 21st to April 25th to allow for the necessary Crown pre-trial. Mr. Erickson originally intended to watch the DVD on the eve of the Crown pre-trial so it would then be fresh in his mind. Given the delay in scheduling the pre-trial, he viewed the DVD on March 25th. He discovered it had nothing to do with either the relevant investigation or his client. He returned the DVD to the Crown's office the next day, hoping to exchange it for the correct video recording. The relevant DVD could not be located and a receptionist advised him that the Crown's Case Management Office would contact him in this regard.

[8] It did not. As a result, the matter had to be further adjourned on the April 25th appearance when the duty Crown appeared to have no knowledge of the history of the case or the missing DVD and demanded that Mr. Erickson renew his request in writing. May 9th, two weeks later, was fixed as the next remand date.

[9] Mr. Erickson promptly faxed a further letter to the Crown, requesting production of the correct DVD and repeating the unfulfilled disclosure requests originally set out in his letter of February 1st, including the notes of PC Sirbos. This communication, like those preceding it, was met with radio silence. As a result, the May 9th appearance failed to advance the case and Crown counsel requested that the matter be adjourned to May 30th so his office could investigate. The duty Crown on May 30th was no better informed, and requested that the matter go over until June 20th for, as noted by the presiding justice, "additional disclosure".

[10] No additional disclosure or communication from the Crown preceded the June 20th return date. Disclosure of the missing DVD was then once again requested and Crown counsel, for the first time, advised that, with respect to a TTC surveillance DVD, "[t]here is not one". The attending agent for the defendant's counsel then requested a two to three week adjournment to conduct a Crown pre-trial and the matter was remanded, at the Crown's direction, to July 18th, some four weeks later.

[11] Mr. Erickson was somewhat taken aback by the Crown's assertion that no TTC surveillance video existed, particularly as the disclosure he had received referred to the police having been provided with the pertinent videotape on December 5, 2011, some 5½ months earlier. On his instructions, Mr. Erickson's agent made inquiries at the Crown's office where he was advised that the officer-in-charge had viewed the DVD and determined that it contained nothing of relevance. Mr. Erickson faxed the Crown's office that same day, June 20th, seeking some clarification of this issue, requesting, again, disclosure of the DVD so that he could assess its relevance, and repeating a number of still-outstanding disclosure requests, including the officer notes and a copy of various 911 calls.

[12] Consistent with the then-familiar pattern, defence counsel received no response to his June 20th letter prior to the next appearance on July 18th. Nonetheless, in view of the delay and his client's pressing circumstances Mr. Erickson instructed his agent to then set a trial. The agent conducted a corridor pre-trial with the assigned Crown, but the latter took the view that a judicial pre-trial was also necessary before any trial date could be fixed as the proceedings were estimated to consume some one to two days and she wished to "narrow the issues". As a result, both a judicial pre-trial (JPT) and the next appearance were scheduled for August 7th with the assigned Crown speaking to the matter. Had trial dates been canvassed on July 18th, Mr. Erickson was available to conduct his client's trial as early as the date set down for the JPT.

[13] In the interim, on July 26th, Mr. Erickson finally received a reply to the disclosure requests he had first advanced some six months earlier. The letter from the Crown Case Management Coordinator advised that several items (including the notes of three officers) had been requested and would be made available. As regards the contentious DVD, the Coordinator advised that the "videos from the TTC were viewed and the incident in question as not recorded. There will be no surveillance videos for this matter".

[14] Mr. Erickson attended the scheduled JPT at 9:40am on August 7th. No Crown representative appeared, despite several efforts to summon a member of the Crown's office. Mr. Erickson explained these events to the justice presiding in Assignment Court as he was "at a loss as to what to do at this point". The duty Crown, as she twice told the Court, "surmised" that the defence counsel, must have fixed a date without first determining the assigned Crown's availability as the assigned Crown was "on vacation [and s]he would never have set a judicial pre-trial" for a date when she was away. Duty Crown was clearly incorrect in this regard as the assigned Crown had personally scheduled the August 7th JPT on July 18th. The matter was remanded to August 15th with the JPT issue left hanging until the assigned Crown's return. Had a trial date been fixed on August 7th, Mr. Erickson was prepared to proceed as early as August 29th.

[15] A member of the Crown's office left a voicemail message for Mr. Erickson on August 13th respecting a Crown pre-trial. Mr. Erickson collected the message the next day, August 14th; he did not appreciate that he was to contact the caller to conduct a Crown pre-trial. In any event, he was consumed with trial matters that week and would not have been able to execute the Crown's request in the narrow window afforded before the next day's scheduled return date.

[16] On that date, August 15th, Mr. Erickson's agent advised, once again, that the defence was "ready to set a date for trial". The duty Crown explained that the confusion on the last attendance was due to the trial co-ordinators' office mischaracterizing the JPT as a matter over which the Federal Crown's office had carriage. (The correct prosecuting agency, the Provincial Attorney-General, would not have been lost on the assigned Crown who fixed the JPT, but the duty Crown did not address this in her submissions.) Contrary to the position taken on July 18th, the attending Crown now took the view that "there is no need for a judicial pre-trial". She declined, however, to fix a trial date until a Crown pre-trial had been completed. The Court suggested a two or three week adjournment, but the matter was put over approximately four weeks, to September 12th, when Mr. Erickson was certain to have returned from his vacation. Mr. Erickson would have been prepared to conduct the defendant's trial that same date, September 12th, if a trial had been scheduled on August 15th.

[17] In the interim, a Crown pre-trial was conducted on September 6th. Various long-requested witness statements (including that of PC Sirbos) and a DVD of the TTC surveillance videos were provided to the defence on the next appearance, September 12, 2012. Mr. Erickson's agent made clear that "we should be setting a trial date immediately". The attending Crown (the same member of the Crown's office who, on August 15th, had concluded that no JPT was required) now insisted that, in view of the estimated length of the trial and settled practice at Old City Hall, no date could be fixed until a JPT had been conducted. As a result, both a JPT and return date were scheduled for October 2nd. As of the September 12th appearance, Mr. Erickson was available and prepared to conduct his client's trial as early as the week commencing September 24th.

[18] Following the scheduled JPT on October 2nd, Crown and defence counsel attended in Assignment Court where a 2-day trial was set down for July 2 and 3, 2013, some nine months distant. The Court was prepared to offer several earlier dates in mid-May and two in late-June, but Mr. Erickson was not then available. He had many other interim available dates, however, including November 1 and 2, 2012. The trial date was fixed despite, as noted on the form executed at the JPT, "incomplete" disclosure, including the complainant's medical records and recordings of the 911 calls.

(c) The Defendant's Circumstances

[19] The defendant suffered a number of injuries and related surgery beginning in 1975. He was diagnosed in 2005 with post-laminectomy syndrome, a condition characterized by persistent back pain that compels him to rely on a motorized scooter to get around. He attends on a physician every Tuesday for medical treatment, including twelve epidural nerve block injections. The defendant's condition deteriorated in the year preceding the s. 11(b) application, with the result that he is now prescribed morphine rather than Oxycontin to manage his pain. The defendant avers that his stress and anxiety have increased with the prolongation of his prosecution and, relatedly, that his psychological ability to cope with his pain and health problems has concurrently diminished. It has become, he says, "extremely difficult to wait so long to have my charges finally dealt with". The defendant's anxiety and insomnia have been aggravated while awaiting his trial and his doctor began to prescribe him sleep medication around October 2012. The Undertaking on which he was released following his arrest prohibits the defendant from using the TTC for any purpose other than to go to and from his medical appointments. This restriction negatively impacted the defendant's quality of life as he depends on the TTC to attend weekly church services and for social outings with his partner. There is no evidence that the defendant ever endeavoured to have his release conditions amended.

C. Analysis

(a) Introduction

[20] The Crown gaffes, incomplete court briefs, inter-office miscommunications, persistent failures to respond to defence counsel's letters, dilatory disclosure, significant non-attendance and fluctuating positions respecting both production of the TTC videos and the need for a judicial pre-trial might all be viewed as a comedy of errors were it not for the fact that it occurred at the expense of the defendant's s. 11(b) right to a trial without unreasonable delay. The straightforward task of fixing a trial date in a relatively simple, single-transaction prosecution became an eight-month marathon of repeatedly unproductive appearances.

[21] The determination of s. 11(b) compliance, or not, ultimately rests on an assessment of the causes of the intervals that cumulatively encompass the delay, the prejudice, if any, experienced by the defendant as a result of that delay and, in the final balancing, the weight to be assigned societal interests in proceeding to a trial on the merits. As regards the first of these considerations, I am firmly of the view that responsibility for most of the supplementary delay (the delay, in other words, that transcends the inherent, and thus conceptually neutral, demands of any prosecution) falls to the state – Crown, police and the court system for which the state is accountable. While I acknowledge a strong public interest in prosecuting charges involving allegations of violence, I ultimately conclude that the length of the proceedings and state responsibility for much of its protraction, when coupled with the cognizable prejudice associated with that delay, amounts to a breach of the defendant's s. 11(b) rights. Consistent with the governing jurisprudence, a stay is then the only just and appropriate remedy.

(b) The Section 11(b) Analytical Framework

[22] The interests and principles that inform s. 11(b) jurisprudence are long settled, as is the analytical framework employed in assessing claims of unreasonable trial delay. In brief:

[23] Section 11(b) of the Charter guarantees every person charged with an offence the right to be tried within a reasonable time. The primary interests protected by this provision are those of the defendant: security of the person, liberty and fair trial rights. Societal interests (including that criminal charges, particularly serious ones, are tried on their merits and ensuring that those charged with criminal transgressions are not only brought to trial but quickly and fairly) are also of concern: R. v. Askov (1990), 59 C.C.C. (3d) 449 (S.C.C.), at 474, R. v. Qureshi (2005), 128 C.C.C. (3d) 453 (Ont. C.A.), at 458 and R. v. Godin (2009), 245 C.C.C. (3d) 271 (S.C.C.), at para. 40.

[24] The factors that inform the calculus of s. 11(b) analysis are fundamentally unaltered since R. v. Morin (1992), 71 C.C.C. (3d) 1:

1. Length of the delay;

2. Waiver of time periods;

3. The reasons for the delay, including:

   • (a) Inherent time requirements of the case;
   • (b) Actions of the defendant;
   • (c) Actions of the Crown;
   • (d) Limits on institutional resources; and
   • (e) Other reasons for delay; and

4. Prejudice to the defendant.

[25] The proper analysis requires a judicial "balancing" of the length of the delay as assessed in light of these factors and the interests protected by s. 11(b). As summarized by the Supreme Court in R. v. Godin, supra, at para. 18:

Whether delay has been unreasonable is assessed by looking at the [total] 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, the prejudice to the accused, and the interests that s. 11(b) seeks to protect.

Unsurprisingly, adjudication of s. 11(b) claims often turns, as here, on the legal characterization and allocation by factor of particular periods of delay.

[26] The applicant, as with all assertions of a Charter breach, bears the burden of establishing a violation of his s. 11(b) rights. While no mathematical formula obtains, authoritative direction as to the reasonableness of pre-trial delay may be found in the administrative guidelines first articulated by the Supreme Court in Morin. In the case, as here, of a provincial court trial, the standard for permissible institutional or systemic delay trial is eight to ten months. (See R. v. G.(C.R.), (2005), 77 O.R. (3d) 308 (C.A.), at 315.) Far from a fixed limitation period, this metric has a certain elastic quality that may be influenced by a variety of factors.

[27] As to the availability of the constitutional relief sought, the Court of Appeal in R. v. Thomson (2009), 248 C.C.C. (3d) 477, at paras. 9-10, re-affirmed that a stay of proceedings is the only appropriate remedy once the s. 11(b) hurdle of "unreasonable delay" is crested.

(c) Applying the Analytical Framework

(i) Introduction

[28] In R. v. Kalanj (1989), 48 C.C.C. (3d) 459, the Supreme Court directed that the calculation of delay under s. 11(b) does not begin until an Information is sworn. That formality occurred four days after the defendant's arrest on December 2, 2011. Accordingly, the total delay here subject to constitutional scrutiny is just shy of 19 months, a period the Crown rightly concedes invites s. 11(b) review.

(ii) The Conduct of the Defence

[29] The defendant at no time expressly waived any portion of this total delay. As to the role of the defendant's conduct in the cumulative delay, the Crown asserts that the defence bears considerable responsibility through its "refusal to engage in a Crown pre-trial". In my view, a fair reading of the record does not support this construction of the events.

[30] Beginning February 22, 2012, Mr. Erickson several times endeavoured to schedule a Crown pre-trial. Despite significant outstanding disclosure, his agent conducted a Crown pre-trial before the Assignment Court appearance on July 18, 2012, the then-assigned Crown resisting the fixing of a trial date for want of a JPT – not a further Crown pre-trial. On the next return date, August 7th, the only impediment remained the conduct of JPT (which needed to be reset due the Crown's absence at the JPT scheduled for earlier that morning); there was no allusion to the need for a Crown pre-trial, let alone a further one. Crown counsel's phone call to Mr. Erickson on August 13th, even if promptly retrieved and comprehended as an invitation to conduct a Crown pre-trial in advance of the August 15th return date, hardly afforded a realistic window of opportunity to engage in such pre-trial meeting.

[31] Further, there is a very real question as to the substantive value, as opposed to an exercise in empty formalism, in conducting a Crown pre-trial while critical disclosure – including the a DVD of the TTC surveillance tapes and the notes of the original investigating officer – remained outstanding. These materials were not finally disclosed until September 12, 2012 – more than seven months after they were first requested by the defence. Both, in my view, were important (indeed "crucial", if such is the appropriate test) components of the Crown's case that the defence was entitled to review before critical elections were made. The TTC tapes purported to contain real-time evidence of the actus reus. The reference to the tapes in the police Occurrence Report, the information that they had been in police custody since December 5, 2011 and the production of the purported tapes to the defendant as early as February 22, 2012 could only have affirmed their existence and potential significance. It was not until June 20th, some four months and several interim defence requests later, that the Crown asserted that there were no such tapes and then, more than a month later and in reply to further inquiries, advised Mr. Erickson that the tapes did exist but that they were found to contain nothing of relevance to the case. In the end, a DVD containing the TTC surveillance videotapes was disclosed to the defence, on September 12, 2012. Other than one or two very modest and ultimately immaterial requests for an additional week or two to accommodate Mr. Erickson's calendar, I do not discern any conduct by the defence that, on proper s. 11(b) analysis, can be properly attributed to the "actions of the defendant". Indeed, I note that Mr. Erickson, personally or through an agent, several times sought to fix a date for the defendant's trial only to be stymied by the Crown's varying insistence that a JPT or Crown pre-trial or, once again, a JPT was first required.

[32] In my view, the duration of the proceedings in the instant prosecution is attributable to three factors: the inherent time requirements of the case; institutional delay; and the conduct of the Crown. I now turn to these considerations.

(iii) The Inherent Time Requirements of the Case

a. The Intake Period

[33] Three intervals here fall under the rubric of "inherent time requirements": the intake period, the time required to conduct a JPT, and the duration between the date on which the trial was set and counsel's first realistic availability. The "intake period" includes such activities, as detailed in Morin, supra, at para. 42, as "retention of counsel, bail hearings, police and administration paperwork, disclosure, etc.". There was, here, no bail hearing and counsel was retained before the defendant's first appearance. Neither of the parties has suggested that the police investigation was anything other than routine and effectively complete upon the defendant's arrest, nor have I been made aware of any complexities in the prosecution or defence. Although not the type of drinking and driving case about which Code J. commented in R. v. Lahiry (2011), 283 C.C.C. (3d) 525 (Ont. S.C.), there seems little if any reason to here depart from his assessment that "two months is a reasonable intake period".

[34] In the instant case, the police did not fix the defendant's first appearance date until two months after his arrest or, applying Kalanj, eight weeks after the Information was sworn. The Crown tendered no explanation, nor does one naturally arise on the record, as to why certain essential disclosure – including the statements of critical police witnesses and the TTC surveillance videotapes – were not provided on that first appearance date. (See, with respect to prompt disclosure of videotape evidence in particular, R. v. Farry, [2010] O.J. No. 1977 (S.C.J.), at paras. 11-13, R. v. Godfrey, [2005] O.J. No. 2597 (S.C.) and the recent canvass of the relevant authorities in R. v. Dummett, 2013 ONCJ 309, at para. 23-28.) Other than the time required for the defence to review disclosure and take instructions, there is no reason to here extend the intake period beyond the two months countenanced in Lahiry. Allowing for the requisite review of disclosure, I nonetheless grant a generous three neutral months to the intake stage of the proceedings.

b. The Judicial Pre-Trial

[35] The estimated length of the trial warranted a judicial pre-trial meeting. Three weeks – from July 18, 2012, when the JPT was set, and August 7, 2012, when the JPT was scheduled to be held – are accordingly of neutral value in the s. 11(b) calculus. Crown counsel rightly concedes that the time required to set and conduct the second scheduled JPT is attributable to the Crown. The only reason to reschedule the second JPT was a result of the Crown's failure to attend the JPT fixed for some two months earlier. Whether Crown counsel's absence at the first JPT was a product of an error by the trial co-ordinator's office or the failure of the first assigned Crown to maintain file continuity within the Crown's office, responsibility for this delay clearly falls to the state.

c. Defence Counsel Trial Availability

[36] In the not so distant past, s. 11(b) jurisprudence conventionally calculated institutional delay as the interval between the date an accused's trial was set down and its scheduled occurrence. More recently, R. v. Lahiry, supra, at para. 26, and R. v. Tran (2012), 288 C.C.C. (3d) 177 (Ont. C.A.), at para. 32, have confirmed that institutional delay, as said in Morin, at para. 47, "is the period that starts to run when the parties are ready for trial but the system cannot accommodate them". Accordingly, the institutional delay clock begins to run not when counsel is ready to fix a date for trial but, rather, when he or she is available and prepared to conduct that trial. The preparation period need not be lengthy in cases, such as the one before me, that are relatively straightforward and free of Charter or other motions. In the absence of a record as to counsel availability, courts have subtracted two weeks to 45 days from the interval between a trial and the date on which it was set to at least nominally account for defence counsel's calendar and preparation. There is no need to speculate here. Counsel was ready to proceed to trial one month after the date on which the trial was fixed, and on many dates thereafter. The court, however, could not accommodate the defendant's trial until a narrow window in mid-May and a second in mid-June. The defence is not to be held responsible for its inability to accept the earliest court-offered trial when it has advanced earlier availability and otherwise demonstrated a desire to proceed expeditiously. As said by a unanimous Supreme Court in R. v. Godin, supra, at para. 23: "Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability".

[37] In the result, on my calculation less than five months in total are properly attributable to the inherent time requirements of the case.

(iv) Institutional Delay

[38] Institutional delay, as earlier explained, is the period between the scheduled trial (July 2 and 3, 2013) and date on which it was set (October 2, 2012), less any time required to accommodate counsels' availability and necessary preparation. Minusing-out the month attributable to these latter considerations, the institutional delay in this case amounts to exactly eight months – a period within, indeed at the lower end, of the orthodox range of "reasonable" delay for a one-stage, uncomplicated case.

(v) The Conduct of the Crown

[39] Institutional delay and that properly characterized as inherent total nearly 13 months. The remanence of the global delay – a period of six months – is, in my view, correctly assigned to the Crown and the police. As canvassed earlier, crucial disclosure was repeatedly delayed. Erroneous materials were provided by way of disclosure and neither explained or corrected for many months. Letters from defence counsel, including those proposing pre-trial meetings and, repeatedly, the production of significant missing disclosure, were seemingly ignored. Mixed messages were sent on whether or not a JPT was required. The Crown failed to attend the first scheduled JPT, resulting in inevitable further delay. The cumulative effect of the Crown's mismanagement of the defendant's file was to extend the overall delay substantially beyond that contemplated in Morin and, in the process, require a dozen appearances to schedule a trial that could have been set down within a month of the defendant's first appearance – as was, indeed, defence counsel's intention.

[40] Significantly, delay for which the Crown is responsible is generally treated more seriously in the s. 11(b) calculus than that attributed to systemic factors. See, for example, R. v. Brown, [2005] O.J. No. 2395, R. v. McNeilly, [2005] O.J. No. 1438 (S.C.), at para. 72, R. v. Yun, [2005] O.J. No. 1584 (S.C.), at para. 42, R. v. Chrostowski, [2006] O.J. No. 1306 (S.C.), at para. 61, R. v. Stephens, [2007] O.J. No. 3500 (S.C.), at para. 68, and R. v. Panko, 2007 ONCJ 212, [2007] O.J. No. 1867 (C.J.), at para. 11.

(vi) Prejudice

[41] The defendant's affidavit does not speak to any impairment of memory and the record is otherwise unhelpful in this regard. Nonetheless, it appears that the evidentiary foundation for the scheduled trial is not the TTC videotapes but, rather, the recall of the participants in and other witnesses to the alleged altercation. Given the passage of more than a year and half between the disputed events and the date fixed for trial, there is an inevitable risk of compromise of the defendant's fair trial interests. Less speculative is the prejudice to the defendant's mobility interests. His travel depends on his use of a motorized scooter and, for longer distances, the TTC. Other than weekly visits to his doctor, the terms of his release prohibit the defendant from using the TTC, and have done so for the full 18½ months between his arrest and my finally staying the proceedings. The defendant, it is true, did not apply to amend his release conditions, but given the core allegations and the fact that the TTC is the named complainant in one of the counts, it is doubtful that such an application would have proven successful. Even if it had, there would still have been some initial period of time when the defendant suffered tangible prejudice to his mobility interests. The protraction of the proceedings could only have aggravated this prejudice.

[42] There is also evidence of prejudicial impact on the defendant's security interests. He suffers from a number of health-related problems. The anxiety about his condition and the toll taken by the pending trial has only been exacerbated by the delay, including increased dosages of pain medication and an insomnia-related prescription in the year preceding his scheduled trial date. Even if initially or predominately provoked by the charges themselves, there comes a point, as said in R. v. Egorov, [2005] O.J. No. 6171 (C.J.), at para. 7, where "prolongation of proceedings can cause what was initially charge prejudice to become prejudice caused by institutional delay". (See also: R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (Ont. C.A.), at para. 33, and R. v. Pusic (1996), 30 O.R. (3d) 692 (S.C.), at para. 173.)

[43] In short, the defendant has experienced some actual prejudice attributable to the delay and, given its duration, at least a modicum of inferred prejudice.

(vii) Balancing

[44] Some 14 months of delay are appropriately credited to institutional factors and the conduct of the Crown. This is significantly longer than the outer contours of reasonable delay contemplated in Morin. As I have found, both specific and inferred prejudice are associated with this delay. Societal interests also play a role in the final balancing. Charges involving offences of violence are undoubtedly serious and there is a natural reticence to inhibit them from proceeding to a trial on their merits. Nonetheless, it is somewhat difficult to elevate the gravity of the offences in the balancing assessment when the conduct of the Crown reflects repeated indifference to the pace of the prosecution or its constitutional obligations. As said, for example, in R. v. Chrostowski, supra, at para. 42:

[G]iven the seriousness of the allegations, one would have expected that the Crown would have managed this case with a degree of attention commensurate with that seriousness. … But if the Crown does not take the management of serious cases seriously, then there will inevitably be delays of the sort that took place in this case, and the outcome of applications under s.11(b) will not necessarily favour the Crown despite the seriousness of the offences.

(See also R. v. Krywucky and Segal, 2013 ONSC 1112, esp. at para. 197.)

[45] Considering and balancing all of the relevant factors that inform the s. 11(b) assessment, I am satisfied that the defendant's right to a trial without unreasonable delay has been infringed. The only appropriate remedy is a stay of proceeding.

D. Conclusion

[46] For the reasons just set out, I find that the defendant's s. 11(b) rights have been violated. A stay of these proceedings, pursuant to s. 24(1) of the Charter, follows.

Released on July 9, 2013

Justice Melvyn Green