Court File and Parties

Court File No.: Y15-38 Orangeville

Date: January 13, 2017

Ontario Court of Justice Central West Region

Between:

Her Majesty the Queen

— and —

K.M. (A Young Person)

Before: Justice Richard H.K. Schwarzl

Heard on: November 24 and December 2, 2016

Reasons released on: January 13, 2017

Counsel:

• Ms. Monica McKenzie, for the Crown/Respondent
• Mr. Virgil Cojocaru, for the Accused/Applicant

SCHWARZL, J.:

Section 11(b) Charter Ruling

1.0: INTRODUCTION

[1] K.M. stands charged as a Young Person when he was between 12 and 15 years of age with six offences between May, 1971 and December, 1976 involving two complainants. He was 55 years old when he was charged and is presently 57 years old.

[2] A four-day trial is scheduled for January 17, March 15, 17, and 21, 2017 in the Youth Court at Orangeville. The time between the swearing of the Information and the last day now set for trial is 621 days or 21½ months.

[3] K.M. has brought an Application claiming that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") has been breached. He seeks the remedy of a judicial stay of proceedings. The Crown opposes the application by submitting that the delay in this case is justified in all of the circumstances.

2.0: CASE CHRONOLOGY

2.1: Arrest and Release of K.M.: May 15, 2015

[4] On May 15, 2015 K.M. was arrested by the Ontario Provincial Police at Caledon. He was released on a Promise to Appear and an Undertaking with limited and modest conditions. His first court appearance was set for June 18, 2015 at the Youth Court in Orangeville.

2.2: Swearing of the Information: June 10, 2015

[5] On June 10, 2015 a six-count Information was sworn alleging K.M. committed sex crimes against two female complainants when he was between 12 and 15 year of age.

2.3: Steps Taken Before Setting Trial Dates: June 18, 2015 to April 28, 2016

[6] The first appearance was June 18, 2015. At that time K.M. appeared by way of his designated counsel, Mr. Cojocaru. Crown counsel informed the Court that (a) the local Crown Attorney's office was in a conflict situation and was seeking a couple of weeks to permit an outside prosecutor to be assigned and (b) there was no disclosure available on the first appearance. The matter was ordered to return on July 9, 2015.

[7] The second appearance was on July 9, 2015. Crown counsel requested an adjournment of three weeks because a prosecutor had just been assigned the day before and because disclosure was still not available. The case was remanded four weeks to August 6, 2015.

[8] The third appearance was on August 6, 2015. Crown counsel advised the Court that the assigned prosecutor was unaware that disclosure had yet to be given to the defence and would endeavour to provide it within a week. The case was adjourned to August 27, 2015 for the defence to receive and review disclosure and set up a resolution meeting with the assigned Crown counsel.

[9] The fourth appearance was on August 27, 2015. At that time, Mr. Cojocaru told the Court that he received the disclosure about a week before the appearance. He wanted two weeks to review the materials and to conduct resolution meeting with the Crown. The matter was remanded to September 10, 2015.

[10] The fifth appearance was on September 10, 2015. Mr. Cojocaru had just finished reviewing the disclosure and was unable have a resolution meeting prior to this appearance. The case was put over for two weeks for the parties to conduct a resolution meeting.

[11] On September 14, 2015 Mr. Cojocaru telephoned Crown counsel and left a message requesting a resolution meeting. This call was not returned.

[12] On September 21, 2015 Mr. Cojocaru called Crown counsel again and left another message requesting a resolution meeting. The Crown Attorney's office telephoned Mr. Cojocaru the next day whereupon a resolution meeting was arranged for October 1, 2015.

[13] The sixth appearance was on September 24, 2015. At that time, Mr. Cojocaru advised the Court that a resolution meeting was booked for October 1, 2015 and he asked the matter be put over for one week. The attending Crown counsel stated that because the assigned Crown was out of the office between October 6 and 16, the prosecution requested a court date subsequent to October 16 to accommodate her. The case was then adjourned to October 19, 2015.

[14] On October 1, 2015 a telephone resolution meeting was held by the parties.

[15] The seventh appearance was on October 19, 2015. At that time, a judicial pre-trial conference ("JPT") was scheduled for November 3, 2015.

[16] The eighth appearance was on November 3, 2015. The JPT commenced but could not be completed because the Crown was awaiting further disclosure materials concerning potential relevant information that might arise in an unrelated criminal proceeding. The JPT was adjourned to December 1, 2015 to await the outcome of the potential disclosure and to accommodate the assigned Crown's schedule.

[17] The ninth appearance was on December 1, 2015. At that time, Crown counsel advised the JPT judge and Mr. Cojocaru that no further information would be forthcoming and that all disclosure issues were now complete. Mr. Cojocaru stated on the record that he was ready to set a trial date but the presiding judge remanded the case for a continuing JPT on January 19, 2016 with the Crown being permitted to participate via telephone. The judge stated that if the matter was not resolved after one further opportunity for narrowing of issues, the defence would be free to set dates for trial.

[18] The tenth appearance was on January 19, 2016 for a continuing JPT. The judge seized of the matter was ill and could not attend court that day resulting in the JPT being remanded for one month to February 23, 2016.

[19] The eleventh appearance was on February 23, 2016 for a continuing JPT. For the second JPT date in a row, it did not take place. This time, the assigned Crown was not available. The matter was postponed to April 5, 2016 to accommodate the availability of Crown counsel.

[20] The twelfth appearance was on April 5, 2016 for a continuing JPT which took place, but in the absence of the assigned Crown who was represented by another prosecutor via telephone. At the conclusion of the JPT both parties agreed to set a four-day trial. K.M. was ready to set the trial but the Crown was not because they did not have dates for police witness availability. The matter was adjourned to April 21, 2016 for the Crown to get organized so as to schedule a trial. The parties were directed to communicate their available dates in advance with the local Trial Coordinator.

[21] On April 20, the parties exchanged emails with the local Trial Coordinator. Mr. Cojocaru provided the following dates of availability: November 1 - 4, 7 - 11, 14, 17, 21 - 25, and 28; December 5 through 16; January 9 – 12, 16 – 20, 30 and 31, 2017; February 1 – 3, 6 – 10, 14 – 17, 21 – 24, 27 and 28. Crown counsel provided the following dates of availability: June 1 – 3, 6, 7, 13 – 17, 27 – 30; July 7, 8, 11, 12, 14, 15, 18 – 22, 25 – 29; August 2 – 5, 18, 19, 29 – 31; September 1, 2, 5 – 7, 12 – 16, 19 – 23, 26 – 30; October 17 – 21, 24 – 28; November 14 – 18, 21 – 25, 28 – 30; all of December, 2016; none of January 2017; and any date after February 4, 2017.

[22] The thirteenth appearance was on April 21, 2016 to set the trial. The defence remained ready to schedule the trial but once again the Crown was not because this time the prosecution had not yet determined its final witness list. The matter was put over to April 28, 2016 allowing the Crown more time to organize.

[23] April 28, 2016 was the fourteenth appearance of this case. At that time, the Crown was finally ready to schedule the trial. The trial was scheduled to be heard by me on March 21, 22, 24, and 27, 2017 which were the first dates offered by the Court. After the trial dates were fixed Mr. Cojocaru advised the Court that he would be bringing a delay application pursuant to section 11(b) of the Charter. The 11(b) Charter Application was set to be heard on November 24, 2016.

2.4: Steps Taken After the Trials Dates Were Set

[24] After setting these trial dates, it was learned that I was not available on the middle two trial dates scheduled for March 22 and 24, 2017. This matter was brought forward by the Trial Coordinator to July 11, 2016 to reschedule these two days. The first days offered by the Court were April 24, 26, and 28 as well as May 5, 8 and 9, 2017. April 24, 26, and 28 and May 5 were rejected by the Crown because the assigned Crown did not want to drive two hours in each direction. Crown counsel did state that the assigned Crown was available any time in January, 2017, most of February 2017, and all of March 2017 but none of these dates were available to the Court. All the dates offered by the Court were available to the defence. In the end, the middle two trial dates were rescheduled for May 8 and 9, 2017.

[25] During the hearing of this Application on November 24, 2016 the parties were directed by me to attend the Trial Coordinator because earlier trial dates were made available including November 30, December 6 and 7, and December 28 and 30, 2016. Submissions on this Application were not completed on November 24, 2016 so I ordered that consideration of earlier trial dates be deferred to December 2, 2016 when the hearing was to continue. On December 2, Mr. Cojocaru stated that since he had not yet commenced his trial preparations, the dates of December 6 and 7 were too early. He also stated that he was on holiday on December 28 and 30. The Crown was available on all those dates.

[26] On December 2, 2016 fresh trial dates were set in accordance with the availability of the Court and all parties as follows: January 17, March 15, 17, and 21, 2017. In setting these dates, the defence declined to accept January 3, 4, 6, 13, 18, 20, and 23.

2.5: Total Time Between Swearing the Information and the Last Day for Trial

[27] The total time between the swearing of the Information and the last day now set for trial is 621 days or 21½ months.

3.0: THE ISSUES AND ANALYSIS

3.1: The Issues

[28] The sole issue is whether K.M. has satisfied me on a balance of probabilities that his right to be tried within a reasonable time has been violated.

3.2: The Legal Principles

[29] The guiding framework to assess this issue comes from the Supreme Court of Canada's recent companion judgments of R. v. Jordan, 2016 SCC 27 and R. v. Williamson, 2016 SCC 28 which were released in July 2016, just a few months after the initial trial dates for this case had been set. In R. v. Coulter, 2016 ONCA 704, the Ontario Court of Appeal provided a 6-step summary of the new framework by the Supreme Court as follows:

Step 1: Calculate Net Delay

(a) Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial.

(b) Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from:

(i) Defence Waiver: Clear and unequivocal defence waiver of his/her s. 11(b) rights;

(ii) Defence-Caused Delay: Delay caused solely by the conduct of the defence, including delay unavailability for trial when the court and the crown are available.

Step 2: Determine the Presumptive Ceiling

(a) For cases in provincial courts, the Presumptive Ceiling is 18 months.

(b) For cases in superior courts, or cases tried in provincial courts after a preliminary inquiry, the Presumptive Ceiling is 30 months.

Step 3: Calculate Remaining Delay, if Necessary

(a) If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were a) reasonably unforeseen or unavoidable, and b) not able to be reasonably remedied once they arose (i.e. sudden medical emergencies), which results in the Remaining Delay.

(b) If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events.

Step 4: Remaining Delay Greater than Presumptive Ceiling

(a) Where the Remaining Delay is still greater than the Presumptive Ceiling, it is presumed that the delay is unreasonable.

(b) The Crown may only rebut this presumption of unreasonable delay by establishing that the case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.

(c) Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.

Step 5: Net Delay or Remaining Delay Less than Presumptive Ceiling

(a) Where the Net Delay or Remaining Delay is less than the Presumptive Ceiling, it is presumed that the delay was reasonable.

(b) In order to establish that the delay under the Presumptive Ceiling was unreasonable, the accused must show that:

(i) he made a sustained effort to expedite the proceedings; and

(ii) the case took markedly longer than it reasonably should have.

Where the accused establishes both of these elements, the charges will be stayed. Charges will only be stayed below the Presumptive Ceiling in clear cases.

Step 6: Transitional Cases where matter commenced prior to Jordan

(a) Where charges were instituted pre-Jordan, the application of the above framework must be applied contextually and flexibly, taking into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification.

(b) In Williamson, the Supreme Court suggested the relevant circumstances to consider in the contextual analysis including:

(i) the complexity of the case;

(ii) the period of delay in excess of the guidelines set out by the Supreme Court in R. v. Morin;

(iii) efforts by each party to move the case along; and

(iv) prejudice cause by the delay to the Accused.

3.3: Legal Principles Applied

3.3.1: Calculation of Net Delay

Total Delay

[30] The "11(b) clock" starts running once the Information is sworn: R. v. Kalanj at p. 1607; R. v. Ashraf, 2016 ONCJ 584 at ¶ 49 to 54.

[31] In this case, the total delay between the swearing of the Information (June 10, 2015) and the last day now set for trial (March 21, 2017) is 621 days or 21½ months.

Deductions for Defence Delay

[32] From the total delay of 21½ months, I deduct ½ month on account of defence delay based on the adjournment between August 27, 2015 and September 10, 2015 to review disclosure. I do not agree with the Crown's submission that further deductions be made because of defence unavailability on the dates of November 30, December 6 and 8, and December 28 and 30, 2016. These dates only became available to the Court and the Crown when this Application was first heard on November 24, 2016. Argument on this Application continued on December 2, 2016 negating the availability of November 30 for the trial proper. In addition, after hearing argument, I reserved my ruling until January 13, 2017 thereby rendering the dates of December 6, 8, 28 and 30 unavailable to the Court.

[33] I agree with the Applicant that the December dates offered would not have provided him a reasonable time to prepare for trial because when these dates were offered at literally the last minute, the defence was under the reasonable belief that the trial was not going to start until mid-March. On December 2, 2016 both parties took meaning steps to expedite the trial dates by making themselves available to bring the trial forward from March 21, 27 and May 8, 9 to January 17, March 15, 17, and 28, 2017. Other January 2017 dates prior to January 13 that had been offered by the Court were negated by the need for me to reserve my ruling until January 13, 2017. The defence was not available on January 18, 20 or 23. However, the Court could not offer any dates between then and March making the effect of turning down these two dates insignificant.

[34] The net delay in this case is therefore 21 months.

3.3.2: Applicable Presumptive Ceiling

[35] This case is being prosecuted in Youth Court. The Supreme Court in its re-working of the 11(b) Charter framework did not address youth matters. The Applicant urges me to find that a lower presumptive ceiling ought to be applied to all youth cases, including this one where the Defendant is a mature adult at the time of charge and trial.

[36] It is well-established that while young persons are not entitled special constitutional guarantees to a trial within a reasonable time, their trials should proceed within a five or six month administrative guideline: R. v. M.(G.C.) at ¶ 45; R. v. T.R..

[37] A shorter time to trial for young persons recognizes features unique to them including (a) that the ability of a young person to appreciate the connection between behaviour and consequence is less developed than an adult; (b) the perception of time for a young person may be distorted when compared to that of an adult; and (c) the need to deal with dispositions speedily while the youth is still in his formative years: R. v. M (C.G.), supra; R. v. D.S., reversed on other grounds ; R. v. T.R., supra.

[38] Section 3 of the Youth Criminal Justice Act (YCJA) codifies the judicial emphasis on young persons getting trials more quickly than adults by recognizing, in part, the greater dependency of young persons and their reduced level of maturity.

[39] Here, the Applicant submits that because this is a Youth Court case, the delay guidelines outlined above should be converted to a youth presumptive ceiling of six months. In further support of this position, the Applicant relies on the definition of "young person" in the YCJA as someone who is twelve years old or older but less than eighteen years old and includes any person who is charged under the YCJA with having committed an offence while he was a young person (emphasis added).

[40] The Applicant sought to rely on Disposition Rate Statistics for all cases in Central West Region and Dufferin County for the period of October 2014 to September 2016. Those statistics show that only 2.5% of cases took longer than 18 months to dispose of. I do not find these statistics helpful as they are raw data without any context or explanation to assist me in this case.

[41] The Applicant submits that despite being in his fifties when charged he is entitled to the benefits of the law relating to speedy trials for youths as a matter of statute and judicially stated principles. The Applicant relies on R. v. N.H., [2014] O.J. No. 4749 (Youth Court) wherein two men in their 20s were tried for offences alleged to have been committed when they were 17. In her ruling regarding a section 11(b) Charter application, the trial judge applied the reduced time-to-trial guidelines for youth trials.

[42] This is not the appropriate case in which to create a section 11(b) Charter presumptive ceiling for youth cases for three reasons. First, unlike situation in R. v. N.H., supra, where the Defendants were still youthful adults, K.M. is not; he is a middle-aged man. Second, because K.M. was a very mature man when charged he does not possess any of the special considerations applicable to young persons. In essence, it is the "youthfulness" of young people that attracts the societal imperative in trying their cases quicker than adults. Here, K.M. cannot be described as youthful as he is neither under 18 nor is he anywhere close to it. Third, while the YCJA applies to K.M., it does so for the purposes of trial procedure and does not bind or restrict me in dealing with a Charter issue. The Supreme Court of Canada stated in R. v. D.S. that while account must be taken of the fact that charges against young offenders ought to be proceeded with promptly when assessing a delay application, this is merely one factor to be balanced with others. In summary, a critical factor is not merely the age, but the youthfulness of the person who is an adult at the time of prosecution but youthfulness is lacking in this case.

[43] I find that the applicable presumptive ceiling in this case is 18 months.

3.3.3: Calculation of Remaining Delay

[44] In this case the net delay is 21 months and thus exceeds the applicable presumptive ceiling. However, there was a discrete event that was unavoidable and not reasonably remedied without a delay. On January 19, 2016 the JPT had to be postponed because the judge seized of the matter was ill and could not attend, causing the case to be delayed for one month to February 23, 2016. I deduct this month from the net delay, leaving a remaining delay of 20 months which is still presumptively unreasonable.

3.3.4: Rebuttal, if any, by the Crown of Presumptive Unreasonable Delay

[45] The onus therefore shifts to the Crown to rebut the presumption of unreasonable delay by satisfying me that the delay is justifiable due to exceptional circumstances beyond their control. In this case, Counsel for the Crown acknowledged that there are no exceptional circumstances with respect to other discrete events or case-complexity to justify the delay.

[46] Nevertheless, where, as here, a case was in the system when the Supreme Court created their new framework, the Crown may rebut the presumption of unreasonable delay in such transitional cases if they satisfy the Court that the delay was based on the parties' reasonable reliance on the law as it existed at the time. Williamson, supra, requires that a contextual and flexible approach be taken by the Court in considering the relevant circumstances. However, if the Court finds that the delay is unreasonable even under the "old rules", reliance on these factors will not assist the Crown.

[47] In the case at bar, the Crown submitted that in conducting a contextual and flexible analysis, I should deduct most, if not all, of the time taken in the JPT-phase of this case being a period of five months from November 3, 2015 to April 5, 2016. I have already deducted one month from the net delay of 21 months due to the unavoidable delay caused by the JPT judge's illness in January 2016, leaving a remaining delay of 20 months.

[48] In considering the relevant circumstances in this "transitional case", both parties agree that it is not complex because there are only four witnesses (two for each party), disclosure is relatively modest, no experts are involved, there are no co-accused, and there are no novel or complicated legal issues.

[49] The framework created by Jordan, supra, replaced that forged many years earlier by the Supreme Court in R. v. Morin. Morin, among other things, established a guideline for trials in the Provincial Court to be heard within 8 to 10 months. With a remaining delay of 20 months, this case has exceeded this old guideline by double.

[50] In April, 2016 the first trial dates offered by the Court were in March 2017, eleven months into the future despite both sides being available sooner. This was an unduly lengthy delay caused by limitations on institutional resources in Orangeville. Setting multi-day trials in this jurisdiction often requires dates far too deep into the calendar, especially when the case deserves, as it did here, to be tried on dates relatively close together. It is noteworthy that when the trial dates were first set, the defence declared that it believed that the delay, assessed under the framework in place at the time, was unreasonable and thus set a delay application date at the same time as trial dates were fixed. It was obvious to everyone at the time that the first dates offered for trial by the Court were already in excess of the Morin guidelines and that therefore institutional delay was going to be a significant issue.

[51] In July, 2016 the Court itself aggravated the institutional delay by requiring the middle two trial days be postponed from March until May, 2017 due to issues with my availability.

[52] Earlier in my reasons, I found that the dates offered in November 2016 to "fast track" this trial on any or all of November 30, December 6, 8, 28, and 30 do not assist the Crown. These dates did not provide the defence with a realistic period for trial preparation and, perhaps more importantly, the Application was not finished until December 2 and I reserved my ruling until January 13, 2017. Furthermore, the fresh dates provided by the Court on December 2, 2016 only partially assist the Crown. The dates of January 3, 4, 6 were unavailable to conduct the trial because I needed time to make my ruling on this Application and the parties both agreed that the best date to do so was January 13, 2017.

[53] For reasons that were never explained, the Crown did not react to the fact that this case was in jeopardy for undue delay until the very day this delay application was heard.

[54] Examining the relevant circumstances of this case from the point of view of the parties relying on the law as it existed pre-Jordan, I find that the Crown did little to move the case along promptly. Looking at the circumstances as a whole, the Crown appeared to be content to prosecute this matter at unjustifiably leisurely pace. I find that the conduct of the Crown generated significant and avoidable delay for several reasons.

[55] First, despite this case being straightforward with a modest amount of evidence, no disclosure was made to the Accused on his first appearance as was customary and expected. In fact, no disclosure was provided to the defence despite their requests until a week before K.M.'s fourth appearance, more than two months after his first appearance. This was unacceptable conduct by the Crown, which is particularly troubling given the Crown's admission at this application that the disclosure was simple.

[56] Second, the Crown caused unnecessary delays during the JPT phase of this case in order to personally convenience the assigned Crown. The JPT was adjourned from November 3, 2015 for a month not only for the potential disclosure to be sorted, but to suit the assigned Crown. The February 23, 2016 JPT did not take place as scheduled because she was not available. It was postponed for six-weeks to April 5, 2016 so she could attend but on that date the assigned Crown did not appear, but was represented by another Crown. No explanation was offered at the time or at this hearing as to why it was acceptable for the assigned Crown to appear by a representative in April but not in February when she was not available on either date. The JPT phase was delayed for a couple of months in order to convenience the Crown and not due to necessity.

[57] Third, when the JPT phase was completed on April 5, 2016 the Crown was not prepared to set trial dates despite knowing that since the previous December K.M. was ready and willing to set a trial as soon as the JPT process was complete. The case was postponed more than two weeks to April 21, 2016 solely to accommodate the Crown. But even on April 21, 2016 the Crown was still not ready so the matter was needlessly delayed another week to April 28. Due to the Crown's indefensible failure to organize a witness list and to have a police schedule, over three weeks were wasted.

[58] Fourth, despite (a) being put on notice by the defence on April 28, 2016 that delay was a serious issue, (b) Jordan and Williamson being released in July 2016, and (c) the Court pushing back the end of the trial to May 2017, the Crown took no steps to prioritize this case until the very day of the delay application on November 24, 2016. When in July 2016 the Court sought to reschedule the final two days of this trial, the attending Crown turned down several earlier dates as matter of personal convenience because the assigned Crown did not wish to endure the drive because she was coming from out of town.

[59] The Crown did take some steps to ameliorate the delay in this case but only once this application started resulting in a reduction in the delay which returned the last trial date near to that originally set. These last minute efforts struck me as a tacit admission by the Crown that this case was taking too long by any measure.

[60] When the Crown commenced its eleventh hour efforts to advance the trial dates, the defence is responsible for not accepting the January 18, 20 and 23, 2017 dates, but as I stated earlier, the impact is negligible because Court could not then offer any dates between those dates and March 15 and 17 which the defence accepted.

[61] Upon examining the relevant circumstances of the remaining 20 months of delay in this case, I find that the Crown has failed to persuade me that the delay is justified even under the pre-Jordan framework for a number of reasons including the following:

(a) Insignificant delay was caused by actions of the Defendant. To the contrary, he appeared ready and willing at from the outset to move the case forward with promptness.

(b) By contrast, the Crown's conduct prior to November 2016 was unjustifiably sluggish and at times disorganized as follows:

(i) They delayed basic disclosure without any good reason;

(ii) They needlessly delayed the JPT phase;

(iii) They did not have police schedules or witness lists when everyone else was ready to set trial dates on two different court appearances;

(iv) When the Court required part of the trial to be rescheduled, some dates were turned down so as not to personally inconvenience prosecuting counsel; and

(v) They took no timely steps to prioritize this case until the last minute despite this being a matter that was so important to the complainants as Ms. McKenzie declared at the outset of this application.

(c) In addition, when the trial dates were initially set there was an unacceptable institutional delay common to long trials in Orangeville which was made worse when the Court postponed the original end date from March to May 2017. This institutional delay was reduced somewhat, but not determinatively, due to efforts of the Crown undertaken far later than should have been in the circumstances.

(d) Lastly there is real prejudice suffered by K.M. beyond that associated from the fact of being charged. As the case has dragged on, his health has worsened due to increased stress and depression. He has also suffered real and mounting financial hardship the longer the case continues.

[62] Of the 20 months remaining delay the Crown is required to justify, the vast majority of that time was caused by the languid approach taken to this case by the Crown and by significant local limitations on institutional resources. I find that the Crown has failed to persuade me that the delay in this transitional case is justified because it would not have been reasonable or tolerable under the pre-Jordan framework.

4.0: CONCLUSIONS

[63] For the reasons set out above, I find that the Applicant has demonstrated on a balance of probabilities that his right to be tried within a reasonable time has been breached. By any standard the overall delay in bringing this matter to trial cannot be justified.

[64] This conclusion means that the community is deprived of a trial on the merits of serious charges. Such a consequence is the heavy price to be paid by everyone in a free and democratic society where the state fails to respect the constitutionally enshrined rights of a citizen charged with a crime of which they are presumed innocent unless proven guilty beyond a reasonable doubt. In making the decision of whether a constitutional right has been violated, I as a judge must, and do, act with neutrality to the outcome and independently from the other branches of government or personal interest. Supreme Court Chief Justice Beverly McLachlin has written that judges cannot discharge their impartiality if they are captives of a particular constituency. Judges take the laws and the cases as they find them, and apply their interpretative skills to them as the constitution requires which can lead to difficult and unpopular decisions.

[65] The Applicant is entitled to a remedy for the state's violation of his constitutionally guaranteed right. The only remedy available is a judicial stay of proceedings pursuant to section 24(1) of the Charter which I hereby impose on all counts on Information Y15-38.

Richard H.K. Schwarzl,

Judge of the Ontario Court of Justice, Youth Court