Court File and Parties

Court File No.: CRIMJ (P) 852/15 Date: 2016-07-18 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Aaron Kennedy and Sean McDermott, Applicants

Counsel: S. Ferrone, for the Respondent Crown L. Shemesh, for the Applicant Mr. Kennedy C. Cawkell, for the Applicant Mr. McDermott

Heard: June 30, 2016

Ruling on 11(b)

Miller J.

[1] Aaron Kennedy and Sean McDermott are jointly charged with Assault Causing Bodily Harm, Kidnapping, Unlawful Confinement and Utter Threat, all alleged to have been committed April 22, 2014 and Extortion, alleged to have been committed by Aaron Kennedy between June 15, 2012 and July 16, 2014, and by Sean McDermott between June 14, 2014 and July 16, 2014. Aaron Kennedy is further charged with an Assault alleged to have been committed between June 1, 2012 and July 31, 2012; an Assault alleged to have been committed between September 1, 2012 and October 31, 2012; and Breach Probation, alleged to have been committed April 22, 2014. The alleged victim named in all of the charges is V.A..

[2] Mr. Kennedy and Mr. McDermott bring an application to stay the proceedings against them on these charges pursuant to s. 24 (1) of the Charter on the basis that their rights to be tried within a reasonable time, pursuant to s. 11 (b) of the Charter, have been breached.

[3] Mr. Kennedy was arrested and charged August 1, 2014. Mr. McDermott was arrested and charged August 5, 2014. Their trial is scheduled to commence August 8, 2016 and expected to take two weeks.

The Application

[4] The Applicants proceeded on a joint factum and transcripts. The transcripts filed were applicable to Mr. McDermott only although they did cover a number of appearances wherein Mr. McDermott and Mr. Kennedy appeared together. Counsel for Mr. Kennedy filed, in place of the transcripts relevant to Mr. Kennedy alone, a number of notes of court recordings. She relied on an Ontario Court of Justice practice direction for the Toronto Region indicating bail transcripts are not required on an 11(b) application unless relevant to delay.

[5] Counsel for Mr. Kennedy was advised, as had been directed by Durno, J. on a number of Mr. Kennedy’s appearances, that transcripts of each appearance were required for the 11(b) application to proceed. Counsel was advised that notes of court recordings are not sufficient as they are far from a complete record and can be inaccurate. Counsel for Mr. Kennedy then produced transcripts from Mr. Kennedy’s bail appearances. While there were no transcripts provided with respect to Mr. Kennedy’s appearances at bail court before his bail review held August 25, 2015, I was satisfied that the transcripts contained a sufficient record of Mr. Kennedy’s appearances for the Application to proceed. Counsel for Mr. Kennedy raised a concern that the bail proceedings transcripts contained information unduly prejudicial to Mr. Kennedy and irrelevant to the Application. I assured counsel that no irrelevant information would be considered on Mr. Kennedy’s Application.

[6] Following the hearing of this Application but before making my decision the Supreme Court released R. v. Jordan 2016 SCC 27 and R. v. Williamson 2016 SCC 28 (July 8, 2016). I invited counsel to provide written submissions on the new law.

[7] Counsel for the Crown and for Mr. Kennedy provided me with written submissions. Counsel for Mr. McDermott adopted the written submissions of counsel for Mr. Kennedy.

Law

[8] The Supreme Court of Canada in R. v. Morin, [1992] S.C.J. No. 25 recognized that a decision on an application pursuant to s. 11 (b) of the Charter must balance the individual rights of an accused with the societal interest in law enforcement: “As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.” Paragraph 30

[9] As noted at paragraphs 27 and 28:

The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

[10] The factors to be considered in analyzing whether an accused’s right to trial within a reasonable time has been violated are set out in Morin at paragraph 31:

1. the 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 accused, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for delay; and
4. prejudice to the accused.

[11] The Court in Morin indicated at paragraph 55 that a period of time in the range of eight to ten months in the provincial courts and six to eight months from committal to trial in the superior courts would not be seen as unreasonable, recognizing, at paragraph 57 that:

These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances. The court of appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions and problems of different regions in the province.

[12] The Ontario Court of Appeal noted in R. v. Tran 2012 ONCA 18, [2012] O.J. No. 83 at paragraphs 38 and 40 that inherent time requirements must also take into account time for counsel to prepare and file Charter motions and to prepare for trial. In that case the Court of Appeal held that no more than three months of the eight months between the judicial pre-trial and trial were attributable to institutional delay. “Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.” Paragraph 32

[13] Of note in this case, as well, is delay occasioned by accommodating the schedules of counsel for co-accused. The latest word on this issue from the Supreme Court of Canada is in the decision of R. v. Vassell 2016 SCC 26, released the same day this Application was heard. I provided a copy to counsel for their comment if any. In that case the Court found that when the Crown chooses to try accused jointly they must take a proactive stance and remain vigilant that its decision does not compromise the s. 11(b) rights of the individual accused.

[14] Counsel for Mr. McDermott additionally referred me to R. v. Osei [2007] O.J. No. 768 (S.C.J.) in which the complex case argument was rejected, and the Court held that given the passage of time since Morin the lower end of the guidelines should apply. Also the decision in R. v. Yun [2005] O.J. No. 1584 (S.C.J.) emphasizing that delay occasioned by actions of the Crown is more unacceptable than institutional delay.

[15] Counsel for Mr. Kennedy referred me particularly to R. v. Nadescu [2016] O.J. No. 299 (S.C.J.) in which 26 months (of an overall 49 months) of delay was attributable to the Crown; R. v. Paramalingam [2016] O.J. No. 1846 (S.C.J.) wherein a significant portion of the 45+ months delay was due to delayed disclosure; and R. v. Khan [2014] O.J. No. 6412 (S.C.J.) in which 20 of 39 months was due to Crown and institutional delay.

[16] Counsel submitted that while there is always a public interest in having serious charges proceed on their merits the quality of the Crown’s case here has diminished, as acknowledged by the Crown on at least one of Mr. Kennedy’s bail reviews. Counsel submitted that the lack of seriousness with which the Crown has dealt with this case is reflected in the numerous Assistant Crowns who have had carriage of the case, thereby contributing to the disclosure issue due to lack of consistent oversight. Counsel cites the cases of R. v. Munro [2014] O.J. No. 6124 (S.C.J.) and R. v. Fernandes [2016] O.J. No. 2268 (S.C.J.) in support of this submission.

[17] The Supreme Court in Jordan sets out a new framework for the analysis in s. 11(b) applications. Notably, the 5:4 majority determined that:

At the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. (paragraph 5)

[18] The crux of the new framework is set out at paragraphs 47 and 48:

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

[19] “Compelling case-specific factors” remain relevant to the assessment of reasonableness above and below the presumptive ceiling. (paragraph 51)

[20] It is clear that defence delay that will be subtracted from the overall time from charge to the end of trial encompasses only defence waiver or delay caused solely by the defence. (paragraphs 61-63) The defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not.(paragraph 64)

[21] Further, “Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.” (paragraph 90)

[22] It is clear that the Supreme Court expects judges hearing s. 11(b) applications “to apply the framework contextually and flexibly for cases currently in the system.” (paragraph 94)

Timeline

[23] Following a complaint to police by the alleged victim of the alleged offences and a subsequent investigation, Aaron Kennedy was arrested and charged with the offences before the Court August 1, 2014. Mr. Kennedy consented to his detention. Sean McDermott was arrested and charged with the offences before the Court on August 5, 2014. His first appearance in bail court was August 7, 2014.

[24] On August 7, 2014 duty counsel indicated that Mr. McDermott’s lawyer, Brian Crothers, had requested the matter return to court the following day.

[25] August 8, 2014 Crown counsel indicated they would be seeking Mr. McDermott’s detention. Duty counsel indicated that Mr. McDermott’s lawyer, Brian Crothers, had requested the matter return to court August 12, 2014 for sureties to attend.

[26] August 12, 2014 duty counsel indicated that Mr. McDermott’s lawyer, Brian Crothers, had requested the matter return to court August 14, 2014.

[27] August 14, 2014 Mr. McDermott’s bail hearing was held. He was released on a recognizance. Following the bail decision counsel for Mr. McDermott suggested, “given the serious nature of the charges” that a four week adjournment would be appropriate for disclosure purposes.

[28] September 12, 2014 Mr. McDermott appeared. Some preliminary disclosure was provided. An agent for new counsel for Mr. McDermott indicated counsel was not yet retained and requested a one month adjournment. Despite this the matter was adjourned to September 26, 2014.

[29] September 26, 2014 Mr. McDermott appeared. Crown counsel indicated that it was a complex brief and they expected disclosure would be available in “a couple of weeks”. Duty counsel indicated that Mr. McDermott did not yet have counsel and was requesting a three week adjournment to October 17, 2014.

[30] October 17, 2014 Aaron Kennedy and Benjamin Martin also attended on their related charges. Mr. McDermott appeared together with an agent for counsel for Mr. McDermott. Crown counsel indicated they expected the complex brief would be available for disclosure in one week. The agent requested Mr. McDermott’s matter be adjourned two weeks to October 31, 2014.

[31] October 28, 2014 an information was sworn jointly charging Sean McDermott, Aaron Kennedy and Benjamin Martin. All three appeared before the court October 31, 2014 but Mr. Martin and his counsel were not present when the matter was initially spoken to. Counsel for Mr. Kennedy indicated that the complex disclosure brief had been received and a judicial pre-trial had been held October 30, 2014. It was agreed that a two day preliminary hearing was required. Counsel for Mr. Kennedy was unwilling to wait for Mr. Martin and his counsel to attend court so requested the matter be adjourned to November 14, 2014 to set dates for the preliminary hearing. The agent for counsel for Mr. McDermott offered to appear as agent for counsel for Mr. Kennedy on that date.

[32] November 14, 2014 counsel for Mr. Kennedy appeared and as agent for counsel for Mr. Martin. An agent for counsel for Mr. McDermott appeared, filing a designation. Preliminary hearing dates of February 19 and 20, 2015 were set, with a confirmation date of January 16, 2015.

[33] January 16, 2015 counsel for Mr. Martin and an agent for counsel for Mr. Kennedy appeared to confirm the preliminary hearing dates. Neither Mr. McDermott nor his counsel appeared. A discretionary bench warrant was issued for Mr. McDermott, to be held until February 19, 2015.

[34] February 19, 2015 the preliminary hearing was completed and all three accused were committed for trial in the Superior Court. The court offered a first appearance in Superior Court February 20, 2015 or March 6, 2015 but counsel for Mr. Kennedy requested the matter go to March 20, 2015 to which all parties agreed.

[35] March 20, 2015 in Superior Court an agent for counsel for Mr. McDermott appeared but did not bring a designation so a bench warrant with discretion was issued for Mr. McDermott. An agent for counsel for Mr. Kennedy indicated the first date counsel would be available for a judicial pre-trial was April 9, 2015. All parties agreed to that date.

[36] A judicial pre-trial was held April 9, 2015. At that time the trial was estimated to take five days. Counsel for Mr. McDermott was not present so the setting of the trial date was adjourned to May 11, 2015. This was done at the suggestion of counsel for Mr. Kennedy who had indicated on the record that he was retained for the judicial pre-trial only.

[37] On May 11, 2015 counsel for Mr. McDermott attended. A discretionary bench warrant was issued for Mr. McDermott. Mr. Kennedy had new counsel, represented that date by an agent. Counsel agreed to have a new judicial pre-trial with Mr. Kennedy’s new counsel May 19, 2015.

[38] May 19, 2015 another judicial pre-trial was held and the new time estimate for trial was two weeks. Counsel for Mr. McDermott had trial dates in July 2015; counsel for Mr. Kennedy had trial dates in August 2015; the Crown indicated it could not be ready until September 1, 2015 but could be available anytime from that date onward. Counsel for Mr. McDermott indicated he was booked for all of September and October 2015. The Court offered a trial date of November 9, 2015 which was rejected by counsel for Mr. Kennedy as being too close to another trial she had already scheduled. The Court offered December 7, 2015 but counsel for Mr. McDermott was not available. January 11, 2016 was the agreed date. The discretionary bench warrant for Mr. McDermott was extended to the trial confirmation date of December 18, 2015.

[39] Aaron Kennedy brought an application for bail August 25, 2015. He was granted bail September 4, 2015. The Crown brought an application for bail review September 18, 2015 and Mr. Kennedy was again detained.

[40] December 18, 2015 counsel for Mr. McDermott appeared with a designation for Mr. McDermott. An agent for counsel for Mr. Kennedy appeared. Both confirmed readiness to proceed to trial January 11, 2016.

[41] On January 11, 2016, the first day set for trial, Crown counsel discovered that results from production orders acquired in the course of the investigation had not been disclosed. This material was in relation to cellphone records for the alleged victim, the three accused and others for a period both before and after the April 22, 2014 offence date. The material comprised some 4000 pages of printed data. The trial was adjourned at the request of the Applicants. The matter was adjourned to January 22, 2016 to set a new date for trial.

[42] January 22, 2016 counsel for Mr. McDermott appeared as did counsel for Mr. Kennedy. A bench warrant with discretion was issued for Mr. McDermott. The new two week trial was scheduled to begin August 8, 2016.

[43] On February 5, 2016 the matter was brought forward to seek out an earlier trial date. Mr. McDermott was not present. Counsel for both Applicants indicated they were available for two weeks at the end of March. The Court offered two weeks beginning March 29, 2016. The Crown indicated they could not have Crown counsel assigned by that date. Also counsel for Mr. McDermott was not available the first part of April. The Court offered April 11, 2016 but counsel for Mr. McDermott was not available before April 25, 2016. The Court offered May 30, 2016. The Crown was prepared to agree to that date if counsel for the Applicants would agree that Constable Shirley was not required for trial. Neither counsel would make that concession as Constable Shirley was involved in taking some witness statements. The matter was remanded to February 17, 2016 while retaining the August 8, 2016 trial date.

[44] February 17, 2016 the Crown indicated that Constable Shirley was prepared to forego his military service so that the trial could proceed May 30, 2015 with the participation of Constable Shirley if necessary. The Crown advised counsel for the Applicants of this on February 8, 2016. Counsel for Mr. McDermott indicated that Mr. McDermott could not attend for a trial May 30, 3016 as he had vacation booked. The August 8, 2016 trial date was confirmed.

Allocation of the Delay

[45] It is the Applicants’ position that the time from their respective arrests to September 12, 2014 is intake time properly considered neutral, whereas time from September 12, 2014 through to November 14, 2014 should be allocated to the Crown due to the delay in providing disclosure.

[46] The Crown takes the position that time from the Applicants’ respective arrests through to November 14, 2014 should be considered inherent intake (neutral) time due to the complex nature of the disclosure.

[47] It is the position of the Applicants that the time from November 14, 2014 through to May 19, 2015 is neutral time. The Crown characterises this period as a mix of neutral preparation time (30 days for preparation for the preliminary hearing, 28 days from the preliminary hearing to first appearance in Superior Court, 60 days for the judicial pre-trials and setting of dates partially due to Mr. Kennedy’s change in counsel) and institutional delay due to the unavailability of court dates for the preliminary hearing (2 months and 2 days).

[48] It is the position of the Applicants that the period from May 19, 2015 through to the first trial date of January 11, 2016 should be allocated to the Crown (4 months 11 days) due to the Crown being unavailable before September 30, 2015. I note this is an error in their submissions as the transcript clearly shows the Crown being unrestrictedly available from September 1, 2015 onwards. It is the position of the Applicants that there is as well in this time frame institutional delay of three months and 12 days.

[49] It is the position of the Crown that May 19, 2015 through July 31, 2015 (73 days) should be considered neutral as Mr. Kennedy’s counsel was not available until August 2015. The Crown accepts responsibility for the period from August 1, 2015 through September 1, 2015 (31 days) due to the Crown’s unavailability. The Crown submits that September 1-December 7, 2015 (96 days) should be considered neutral time due to the unavailability of counsel for the Applicants. The Crown submits that December 7, 2015 through January 11, 2016 (35 days) should be considered institutional delay. It is not clear to me why this should be institutional delay as the record clearly shows that counsel for Mr. McDermott was not available December 7, 2015. The December holiday period might be the cause of a typical institutional slowdown during this period.

[50] It is the position of the Applicants that all of the time from the first trial date January 11, 2016 to the second trial date August 8, 2016 should be considered Crown delay as the first trial had to be vacated due to the failure of the Crown to make timely disclosure.

[51] The Crown takes the position that it should be held responsible for the delay from January 11, 2016 through to May 30, 2016 (4 months 20 days) but thereafter (2 months 9 days) the delay should be attributable to the Applicants.

[52] In total the Applicants submit that 500 days is attributable to Crown and institutional delay and that this is well outside the Morin guidelines.

[53] The Crown submits that the total Crown and institutional delay amounts to 9 months; well within the Morin guidelines.

Prejudice

[54] Sean McDermott was released on bail within days of his arrest. His judicial interim release order, which he describes as “house arrest”, in fact permits him to work as long as he provides his work itinerary to his sureties and it does not restrict him to remain within Ontario – as evidenced by his May 2016 trip to the Bahamas. It does require him to reside with his mother who is one of his sureties and not to leave the residence except in the presence of one of his sureties except for work.

[55] In September 2015 the Crown consented to a variation of the terms of Mr. McDermott’s bail allowing him to also attend school which permitted him to qualify as an HVAC technician.

[56] Sean McDermott’s affidavit sworn May 8, 2016 indicates that, in addition to the stress caused by the outstanding charges against him, he resides in a rural location wherein the nearest neighbour is 500m away making him feel isolated. The residence is one hour away from his girlfriend, Bita Gheisari, and so he is unable to see her as often as he would like. He also indicates he has had stress in his relationship with his girlfriend because she is a surety and he has to spend so much time with her. He indicates that in April 2016 he was unable to attend the funeral of a friend due to his bail condition that he not associate with anyone known to him to have a criminal record. Mr. McDermott indicates that because of the condition that he be accompanied by one of his sureties any time he is away from his residence he has been unable to attend the gym or to shop for an engagement ring. He is uncomfortable meeting with friends in the presence of his mother. He indicates that he has been unable to start his own business as he had planned.

[57] Mr. McDermott also testified on the Application. He testified that since preparing his affidavit May 8, 2016 he has had two fulltime job offers which he had to turn down. Both job offers were in the HVAC industry for which Mr. McDermott has qualified while on bail. One, at MATcom, would have required Mr. McDermott’s attendance in Mississauga, which is specifically prohibited by his conditions of bail. The other, with GreenAce, would have required out of province travel, which, while permitted by his bail conditions, he felt might have jeopardized his required attendances at court. I note that for most of the court appearances Mr. McDermott was not inconvenienced by attending.

[58] Following the adjournment of the first trial date Counsel for Mr. McDermott contacted the Crown about relaxing his bail such that he would only have to be in his residence according to a curfew. Crown counsel wrote back requesting to know the reason for the request – was it work-related? There was no response. Crown counsel followed up again in March 2016 – after the unsuccessful attempt to move the trial date forward – and again there was no response to her query. Mr. McDermott when he testified on the Application said that he didn’t feel that he should have to justify a relaxation of his bail conditions. He felt the delay alone should have been enough reason for the Crown to consent.

[59] Aaron Kennedy originally consented to his detention. He was briefly released on bail in September 2015 but was ordered detained again with two weeks following a bail review before Ricchetti, J. on September 18, 2015. He has been in custody since. Part of the time he has spent in custody (160 days) is allocated to a sentence he has served on another charge.

[60] Of note is that Mr. Kennedy’s affidavit sworn May 5, 2016 which indicates that in addition to the anxiety caused by the outstanding charges that he has exhausted his funds in attempts to be released from custody and that his girlfriend is battling cancer without his support. He indicates the conditions of his detention have been severe with many lockdowns at the correctional facility where he is held and being placed in dangerous situations with other inmates. He indicates that his memory relevant to the charges for which he is to be tried has faded over time affecting his ability to properly instruct counsel and to make full answer and defence. Mr. Kennedy did not testify on the Application.

[61] Counsel for Mr. Kennedy submit that when Mr. Kennedy was detained at the bail review September 18, 2015 the presiding justice took into account that the trial date (at that time January 11, 2016) was only a few months away. Subsequent bail reviews for Mr. Kennedy, at which his detention was confirmed, took place after the January 11, 2016 adjournment and when the trial date was set for August 8, 2016.

[62] Mr. Kennedy’s original consent to detention and the numerous bail review decisions continuing his detention are not surprising given that Mr. Kennedy has a lengthy, serious and related record. In each instance he was detained on the secondary grounds. In addition, the altercation which resulted in the charge of Assault Causing Bodily Harm while Mr. Kennedy was in custody occurred within a very short time of his arrest on these charges. I note that Mr. Kennedy’s encounter with the individual he assaulted while in custody would not have occurred but for his arrest and detention on these charges, but, as the sentencing judge noted, Mr. Kennedy must take responsibility for the choice he made to act in those circumstances.

Analysis

[63] The total time from charges first being laid to the date now scheduled for the commencement of the trial is just over 24 months (738 days). This is an overall delay sufficiently lengthy to warrant further scrutiny as to the reasons for delay.

[64] It is clear that the Applicants never explicitly waived their rights to trial within a reasonable time.

[65] It is clear that the total time in the Ontario Court of Justice, approximately six and a half months, is well within the Morin guidelines. The focus here, pursuant to Morin, must be on the time to trial in the Superior Court.

[66] The time from when the preliminary hearing was completed to the first trial date was just under 11 months. This period of time exceeds the Morin guidelines and warrants scrutiny.

[67] There is no dispute that from committal February 19, 2015 to the appearance May 19, 2015 when the first trial date was set is neutral time.

[68] It is clear that while counsel for Mr. McDermott was available as of mid-July 2015, counsel for Mr. Kennedy was not available until August 2015. I find that the time from May 19, 2015 to July 31, 2015 (73 days) is neutral time. This period is also a reasonable time to be considered necessary to prepare for trial. The Crown being unavailable until September 1, 2015 makes the period from August 1, 2015 (31 days) Crown delay.

[69] From September 1, 2015 both the Crown and Court were available offering several dates for which either Mr. McDermott’s or Mr. Kennedy’s counsel was not available. This was the situation through to the first trial date and I find all of this delay to be neutral.

[70] Of the 11 month delay from committal to the first trial date I find that only 31 days is attributable to the Crown. To this point there is clearly no violation of either Applicant’s 11(b) rights.

[71] The additional time from the first trial date January 11, 2016 to the present trial date of August 8, 2016 adds another seven months. This is a significant time period, particularly when the reason for the additional delay was the Crown’s failure to make timely disclosure.

[72] I have considered the explanation given for the failure to make timely disclosure. Constable Shirley testified that it was an oversight on his part – combined with the fact that assignment of the complex brief for disclosure was given to another officer who shortly afterward went off on maternity leave. It is clear that the material that should have been disclosed was available as of late August 14, 2014 and should have been part of the complex brief that was disclosed in October 2014.

[73] I accept that there was no attempt on the part of the Police or the Crown to withhold disclosure. This was simply an oversight, albeit a significant one. There was no bad faith. I accept that it was reasonable, given the volume of the late disclosure, for counsel for the Applicants to seek and obtain an adjournment of the trial.

[74] The Crown would wear all of the consequent delay, from January 11, 2016 to August 8, 2016, were it not for the efforts made to bring the matter forward for an earlier date.

[75] Once the new trial date of August 8, 2016 was set, all parties cooperated in bringing the matter forward to explore the availability of an earlier date. Given the schedules of Crown and defence counsel, and the availability of courtroom space, it appears the earliest trial date all parties could have accommodated was May 30, 2016.

[76] It is clear that the time from the first trial date of January 11, 2016 to May 30, 2016 is attributable to the Crown alone.

[77] It is also clear, however, that the Crown took extraordinary steps to make the May 30, 2016 trial date available. The Crown requested and Constable Shirley acceded to the request that he forego his scheduled military service in order to accommodate the earlier trial date.

[78] Mr. McDermott turned down that date, because, as he frankly conceded in his testimony on the Application, it was more important to him that he and his girlfriend go to the Bahamas to be part of their friends’ wedding party, than it was to Mr. McDermott to have an early trial. In Morin at paragraph 62 the Court noted: “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider.”

[79] It is recognized that there is inferred prejudice to any accused facing serious charges and that prejudice increases with the length of the delay. R. v. Steele 2012 ONCA 383, [2012] O.J. No. 2545 at paragraphs 28-29. As noted by the Court of Appeal in R. v. Kovacs-Tatar, [2004] O.J. No. 4756 at paragraphs 32-33, “The focus of prejudice under s. 11(b) is the prejudice flowing from a situation "prolonged" by delay rather than the mere fact of being charged with a criminal offence.”

[80] Here there is evidence from Mr. Kennedy and from Mr. McDermott as to the effect of having the charges outstanding against them and the added stresses of having the first trial date adjourned. In addition, in this case there is evidence of specific prejudice. There can be no doubt that Mr. McDermott and Mr. Kennedy in particular have experienced restrictions on their freedom.

[81] In respect of Mr. McDermott, however, I note that the Crown was clearly open to consider a further relaxation of his bail conditions once the trial did not proceed in January 2016 and it was Mr. McDermott who failed to follow through. I also note that but for Mr. McDermott’s choice to attend his friends’ wedding rather than have an earlier trial, both he and Mr. Kennedy could have had their trial completed by mid-June of 2016.

[82] I cannot find, on a Morin analysis, in these circumstances, that Sean McDermott’s right to trial within a reasonable time has been violated.

[83] I go on to consider Aaron Kennedy’s situation. It would appear, on the record, that Mr. Kennedy, had he not been jointly charged, could have had his trial on these charges as early as May 30, 2016. It is clear that the actual prejudice to Mr. Kennedy, as he remains in custody on these charges, is greater than the prejudice to Mr. McDermott. It is also clear that it was not his choice to delay the trial from May 30, 2016 to August 8, 2016.

[84] I have considered the guidance of the Supreme Court in Vassell, and consider whether, in all of the circumstances, in order to preserve Mr. Kennedy’s right to trial within a reasonable time, the Crown should have offered to sever his charges.

[85] While Mr. McDermott and Mr. Kennedy face allegations of criminal interaction with the alleged victim independent of one another, the circumstances of the alleged events of April 22, 2014 form the crux of the prosecution and allegedly involve the two acting in concert.

[86] I am of the view that the Crown’s decision to proceed against the Applicants jointly was a reasonable one considering the identifiable advantages in terms of trial efficiency, avoiding the peril of inconsistent decisions, and a number of police witnesses as well as the alleged victim having to testify at both trials. As has been noted in a number of decisions on the right to trial within a reasonable time, each case does not exist in a vacuum. A decision to proceed with two trials would impact on the availability of court time and other resources to other accused persons. I do not view the involvement of Benjamin Martin (now deceased) as a co-accused as contributing in any significant way to the delay in the proceedings.

[87] The additional delay to Mr. Kennedy of two months and nine days, while no doubt significant to him as he remains in custody, I find does not tip the balance against the public interest in the trial of this case on its merits. I do not find, on a Morin analysis, in all of the circumstances, that Mr. Kennedy’s right to trial within a reasonable time has been violated.

[88] Applying the Jordan framework, it is clear that the total time from charge until the end of the scheduled trial will be approximately 24.5 months – well below the presumptive ceiling for trials in the superior court.

[89] Counsel for Mr. McDermott and Mr. Kennedy urge me to consider the reasoning in the minority decision in Jordan, that rigid timelines can lead to injustice. I am satisfied that the factors to be considered, as set out in the majority decision in Jordan are sufficient to ensure no injustice is done, particularly with the direction to “apply the framework contextually and flexibly for cases currently in the system.”

[90] In applying those factors, counsel for Mr. McDermott and for Mr. Kennedy submit that there was a sustained effort to expedite the proceedings on the part of Mr. Kennedy. Secondly, they submit that the case has taken markedly longer than it reasonably should have. It is their submission that the trial could have easily been tried and completed in January – had the crown provided the material disclosure. Counsel point to paragraph 138 of Jordan where the Court points to the Crown responsibility to deliver on their disclosure obligations promptly with the cooperation of police.

[91] Specific to this case, the Supreme Court has specified at paragraphs 99-101 that:

…cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required. The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial (Morin, at p. 802).

Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.

We note that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system. We also emphasize that for cases in which the charge is brought shortly after the release of this decision, the reasonable time requirements of the case must reflect this high level of tolerance for institutional delay in particular localities.

[92] While I do not accept the Crown submission that Mr. Kennedy or Mr. McDermott specifically “waived” any portion of the time it has taken to get to trial, it is clear that the Crown was available to go to trial anytime from September 1, 2015 onwards. It may have been that there were court dates from September 1, 2015 but as defence counsel were not available for all of September and October 2015 the court did not offer a date until November 9, 2015. Dates offered by the court from November 9, 2015 through to the first trial date of January 8, 2016 were all turned down by defence counsel. This period of time – two months – reduces the overall delay to 22.5 months.

[93] I further find that as the May 30, 2016 trial date offered by the court and for which the Crown made itself available was turned down by Mr. McDermott in favour of attending his friend’s wedding, the period from May 30, 2016 through to the beginning of the scheduled trial August 8, 2016, is defence delay, further reducing the overall time frame to less than 20.5 months for Mr. McDermott.

[94] I find that although a significant portion of the delay was occasioned by the mistake in disclosure, from that point, in January 2016, the Crown has lived up to its obligations, particularly in its efforts to cooperate in bringing the matter forward for a May 30, 2016 trial:

Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection. (paragraph 90)

[95] The Applications are dismissed.

Miller J. Released: July 18, 2016