Court File and Parties

Court File No.: Old City Hall

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Tony Lu

Before: Justice Beverly A. Brown

Heard on: May 4, June 8 and 13, 2012

Reasons for Judgment released on: June 13, 2012

Counsel:

Mr. Kester Yeh for the Crown

Mr. Russell Silverstein for the accused Tony Lu

BROWN, J.:

Introduction

[1] Mr. Tony Lu is charged with four counts in an information related to allegations on January 30, 2011. He is charged with unlawful production of cannabis marihuana, [s. 7(2)(b) of Controlled Drugs and Substances Act (CDSA)], two counts of possession of cannabis marih for the purpose of trafficking [s. 5(2) and 5(3)(a) CDSA] and fraud under $5,000 of electricity from the Toronto Hydro Electric Systems. Prior to the trial date, and before the trial court, the defence brought an application arguing that there has been an unreasonable delay and thereby an infringement of Mr. Lu's s. 11(b) Charter right, seeking a stay of the proceedings. The defence filed an application record which included an affidavit of Tony Lu, and both parties filed facta in relation to this application. There has been no viva voce evidence called on this application. Both parties have made submissions, and the court advised the parties of its decision in court last Friday, June 8, 2012. The court now provides its reasons in response to this application.

Factual Background

Intake period

[2] The information was sworn on February 7, 2011, approximately one week following the date of the allegations contained therein. Although there is a discrepancy as between the applicant's factum and the evidence filed by the applicant, it does appear that Mr. Lu was arrested on February 6, 2011, and released on bail on February 7, 2011. On the first appearance date, Mr. Lu was released on a recognizance of bail. There were two named sureties, who were the sister and brother-in-law of Mr. Lu, on the recognizance, in the amount of $50,000, together with conditions. The court notes that the recognizance of bail did not contain any conditions such as a house arrest or curfew term. Counsel had appeared for Mr. Lu and the matter was put over to February 14, 2011.

[3] On the second appearance, Feb. 14, 2011, a new representative appeared with Mr. Lu. On that date, a designation was filed, and the case was remanded to March 14, 2011. The Crown suggested a return date of 4 to 5 weeks, as disclosure was not yet available. On most of the remands following that date, counsel appeared by way of designation, without Mr. Lu.

[4] On March 14, 2011, the Crown indicated that initial disclosure was not yet available, and suggested a further 2 to 3 weeks to follow up. On the next date, April 6, 2011, initial disclosure was still not available and the Crown suggested a further remand of 2 weeks. On the next date, April 20, 2011, the Crown advised that the Crown had the disclosure for vetting but that it was not yet available. The Crown in court was unable to contact the Crown doing the vetting, and suggested a remand of a further two weeks. The representative for the defence again indicated their interest in getting this disclosure, and requested that if the disclosure was available prior to the next court date, the defence would appreciate receiving it prior to the next court date. On May 6, 2011, The Crown advised the defence and court that the disclosure was not in court and the Crown did not have the brief. The case was to return in court on May 25, 2011. There is no transcript of the case being dealt with on May 25. It is agreed between the parties that the initial disclosure was not provided by the Crown until it was given to the defence in court, on May 25, 2011, some 3 months and 18 days after the information was sworn. Both parties are agreed that a portion of this intake period prior to the provision of initial disclosure is inherent delay, and that a portion of this intake period (submitted by the Defence to commence on March 14, and submitted by the Crown to commence on April 6, are delay which has been occasioned by the Crown). This court would find that a portion of the delay prior to May 25, 2011 lies at the feet of the Crown for what this court would find to be the result of the Crown "dragging its feet" in providing the initial disclosure. It does not appear from the material filed before this court that the Crown was making the provision of initial disclosure a sufficient priority in its case management of this case. The court would find that a period of 2 months would have been appropriate for the Crown to provide initial disclosure in this type of a case. Accordingly the excess delay in providing initial disclosure of 1 month and 18 days lies at the feet of the Crown.

[5] The day after initial disclosure was given to the defence, on May 26, 2011, the defence requested a copy of the information to obtain that had been in support of the search warrant, which was the subject of the search in this case. The timing of this request is discussed below.

[6] On June 22, 2011, the Crown advised the court that it would take approximately 4 weeks to deal with the request for the information to obtain and to provide it to the defence, and the case was put over to July 20, 2011. On July 20, counsel advised that a judicial pre trial had been scheduled for August 16, and it was noted that the information to obtain would be provided to the defence imminently. It seems that the information to obtain material requested by the defence was provided on August 14 or 15, 2011, according to the defence affidavit material.

[7] On August 16, counsel appeared in court following the judicial pre trial and advised that the defence wanted a period of time, to September 6, 2011, to consider a possible resolution of the charges.

[8] On September 6, 2011, the case appeared for its last set date in the remand court. A trial date was scheduled for June 13 and 14, 2012. Defence counsel was not available on two earlier dates offered, June 11 and 12, 2012. Further disclosure was provided on that date as to the notes of an officer and a photo line-up, that it appears was conducted after August 16, 2011.

[9] Subsequently, counsel scheduled an earlier date, May 4, 2012, before the trial judge to hear this s. 11(b) Charter application.

Court proceedings

[10] The total period under scrutiny in this case is approximately one year, 4 months and 6 days, from February 7, 2011 until the trial is scheduled to commence, on June 13, 2012.

Legal Framework for Analysis

[11] The legal framework for the analysis is not in dispute, and is well known. As set out in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.), the factors that I must consider are as follows:

1. the length of the delay

2. waiver, if any, of time periods

3. the reasons for the delay, including

   • a) the 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 the delay, as well as

4. prejudice to the accused.

[12] In balancing the interests in relation to these factors, I must keep in mind that the primary purpose of s.11(b) of the Charter is the protection of the individual rights of the accused, by protecting his right to security of the person, his right to liberty, and his right to a fair trial. Society also has an interest to be protected by s.11(b), which includes the promotion of prompt trials to ensure fairness to accused persons. As well, as the seriousness of the offence increases so does the societal demand that the accused is brought to trial. In this case, I am taking into account that impaired driving and related offences are serious matters.

Application to this Case

Length of delay

[13] The total length of the delay in this case is approximately one year, 4 months and 6 days. As indicated in Morin, this length of time to bring a matter to trial is sufficient to raise the issue of reasonableness and to require an inquiry into the reason why it took this long to bring the matter on for trial.

Waiver of delay

[14] The defence has not waived any portion of the delay.

Reasons for Delay

Inherent time requirements

(a) Intake period

[15] The charges in this case are not complex. Generally the evidence in a case of a trial for production of marihuana and possession of marihuana for the purpose of trafficking, together with a charge of fraud in relation to electricity from Toronto Hydro, is available shortly after the charges are laid. In this case, the court does note however that it appears that a photo file identification procedure was conducted very late in the intake period, following the judicial pre trial but prior to setting the trial date. Moreover, the court is mindful of the fact that in a drug case of this nature, generally the substance must be tested to determine the nature of the substance, which in this case is alleged to be marihuana, which is generally done following the setting up of the case for trial. In Morin, a reasonable intake period for a drinking and driving case was suggested of 2 months. Generally an intake period of three months for a drinking and driving case is acceptable.

[16] Cases of this nature are more complicated than drinking and driving investigations. In this case, two separate search warrants were executed at two separate locations in Toronto. The court would note that in addition to the production charge and the possession for the purpose of trafficking charges, there was also a charge of fraud in relation to electricity from Toronto Hydro. This fraud charge would involve material above and beyond what would normally be required in a simple production case. As well, Health Canada would need to test the substance to determine the nature of the substance (although a practice has developed where this material is often not obtained and delivered to the defence until after the case is set up for trial or preliminary hearing). Further as noted above, a photofile identification procedure was conducted in this case. In addition, the defence requested a copy of the information to obtain material in support of the search warrants which were executed in this case, which would require, as set out in further detail herein, an application to be brought before a judge in the Ontario Court of Justice to unseal the search warrant. Material would need to be prepared for this application, a judge's order be made, the search warrant material unsealed, the material provided to the Crown, and a process be conducted by the Crown (usually involving a police officer to assist in a vetting and redacting of information that might identify a confidential informant, to ensure that this information was not improperly released to the defence). Clearly, the steps to obtain and prepare information sought by the defence in this case, of two sepearate search warrants executed at two separate locations, went beyond what is typically required in a drinking and driving investigation which generally involves the disclosure of police officer notes, certificate and notice of intention, and any material relating to the instrument or device or associated items used in the testing of the breath sample(s).

[17] Prior to the request for the information to obtain, it took the Crown until May 25, 2011, some 3 months and 18 days, to provide initial disclosure. Later in the process, on July 20, 2011, counsel agreed that a judicial pre trial be scheduled in the matter. A judicial pre trial was scheduled for August 16, 2011. As counsel are aware, at Old City Hall a judicial pre trial is required where counsel require trial time in excess of one day. (Two days have been set for the trial in this matter.) In addition, just prior to the end of the intake period defence counsel had requested approximately 3 weeks to consider a possible resolution of the charges, again, a normal function of the intake period.

[18] The court finds that the time required to schedule the judicial pre trial in the summer period is not beyond the normal expectations.

[19] The overall intake period in this case was approximately feb. 7 to sept. 6, 2011, which is approximately 7 months. As set out above, the court has allocated a period of 1 month and 18 days of this period as being delay that lies at the feet of the Crown arising from the delay in providing initial disclosure.

[20] The period between the last set date and the commencement of the trial is approx. sept 6 to june 13, a period of 9 months and 7 days. It is noted that the trial was 2 days later than might have been scheduled by the trial coordinator due to the unavailability of defence counsel on June 11 and 12.

[21] In R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071, Code, J. dealt with a series of summary conviction appeals, wherein the principles relating to s. 11(b) of the Charter were reviewed. The court noted the multi-dimensional functions of the intake period. The functions include the time required for the Crown to prepare disclosure materials and do any necessary editing. The defendant must use the intake period to find and retain counsel, if that step is taken in the proceeding. This may involve an application to Legal Aid. Counsel must interview the client and any witnesses and secure and preserve any necessary documentary or real evidence. The time required to carry out these intake functions can vary depending on the nature of the case. While the court reviewed a standard period of two months for a routine drinking and driving case, the court recognized that as approved by the Court of Appeal for Ontario in R.v. G.(C.R.) (2005), 206 C.C.C. (3d) 262, for a more complex indictable offence of spousal assault and sexual assault, a 7 ¼ month period was a reasonable intake period. The court finds that a reasonable intake period for a case such as the one before this court would likely fall somewhere between these two time frames for the normal intake period.

[22] In R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.), the court reviewed a trial on charges arising from the execution of a search warrant at a location where an extensive grow-operation was discovered, together with a hydro by-pass. The parties were charged with a number of offences including production of cannabis, production of cannabis for the purpose of trafficking, theft of electricity, possession of proceeds of crime over $5,000., trafficking cannabis and possession of a prohibited weapon. The court in this case notes the similarity in charges in the case at bar, with the exception of the weapons count. In that case, the parties were arrested on June 10, 2009, and the defence did not obtain the copy of the information to obtain until late November of 2009. (Within the intake period, it took the Crown approximately four months to respond and provide a copy of the information to obtain the search warrant after it was requested by the defence. This is greatly in excess of the period in the subject case to obtain a copy of the information to obtain.) A judicial pre trial was scheduled for January 19, 2010. The pre-trial was adjourned to March 31, 2010 to permit resolution discussions, and target trial dates were set beginning on September 9, 2010. Accordingly, from the date when the charges were laid until the target dates for trial were set, there was within this intake period a time frame of 7 months and 9 days. Following that time frame, counsel continued to take steps to prepare for the trial. The Court of Appeal specifically agreed that it is appropriate to have a judicial pre trial for a case of this nature and that the time required to set up and conduct a judicial pre trial should be treated as part of the inherent time requirements of the case. Further, in this case the defence requested a period of 3 weeks after the judicial pre trial to consider a possible resolution. As set out in the case law, this is a proper function of the intake period and part of the inherent time requirements for the case, and is not the fault of either party. As set out above, the intake period for the case at bar (including the time to consider a possible resolution of the charges) was approximately 7 months.

[23] There are similarities in terms of the type or complexity of the case at bar when compared to Tran. The review of the intake period by the Court of Appeal for Ontario in Tran, dealing with a similar intake period, did not seem to be of particular concern to the Court. The Court in Tran also settled what had been an ongoing conflict in the case law as to whether the function of setting a judicial pre trial, in this case at Old City Hall for cases requiring one day or more of trial time, was properly part of the intake process or the inherent time requirement for the case. The Court clarified that it is a proper intake function and time required for this step in the process is properly an inherent time requirement.

[24] The defence in this case has submitted that the Crown is responsible for the delay that arose after the defence requested a copy of the information to obtain material in this case, based upon its position the defence submission that this function should have been performed by the Crown in the absence of any request from the defence for the material. In this case, as often happens, the Crown provided initial disclosure in the context of what appears to be an absence of a request for initial disclosure. This has become a common practice. Initial disclosure was provided to the defence on May 25, 2011. On May 26, 2011, the defence wrote what appears to be the first letter requesting disclosure, which in this case was a request for a copy of the information to obtain material in relation to the search warrant execution. As noted herein, there were two search warrants executed at two separate locations. As noted in the materials before this court, primarily in the Applicant's summary of facts in the factum, the allegations in this case relate to a location of 15 Tampa Terrace in Toronto, and that the investigation began with an anonymous tip that there was drug activity at the address. Search warrants were obtained for this address, and another address at 89 Laskey Crescent, Toronto, where the Crown alleges Mr. Lu resided on the date of the allegations. The defendant/ applicant was not present when the search warrants were executed.

[25] Oddly, this court finds, there were no letters from defence counsel requesting any form of disclosure prior to May 26, 2011. Clearly, the Crown is required to provide disclosure pursuant to R. v. Stinchcombe, [1991] S.C.J. No. 83, and cases which have followed this seminal judgment of the Supreme Court of Canada.

[26] A topic of dispute between the parties in this case related to the consideration of the delay following the request by the defence for the release of the information to obtain in support of the search warrants. To put this issue in context, it is important to address the law in this area, together with local practice. When a search warrant is obtained, there is the ability pursuant to s. 487.3 of the Criminal Code to seal the information in support of the search warrant. This is done virtually automatically for CDSA search warrants for investigations for cases at Old City Hall in Toronto. An application can be made pursuant to s. 487.3(4) to subsequently unseal the information to obtain the search warrant by any party, to the justice or judge who made the order, or to a judge of the court before which any proceedings arising out of the investigation may be held. As a matter of practice, such applications are made by counsel to a judge of the Ontario Court of Justice, in open court, in the court where the federal prosecutions are heard at Old City Hall. In the past, there was an issue as to whether the defence should be required to bring the applications, or whether the Crown should bring the applications. This court has dealt with applications in the past from both the defence and the Crown. Following the judgment of Justice Bovard in R. v. Beck, [2008] O.J. No. 3513, a practice has developed at Old City Hall where members of the federal Crowns' office bring applications to unseal the search warrant material. In Beck, the parties put considerable material before the court as to the process of unsealing search warrant material and the timing for such a procedure. Ultimately, Justice Bovard held, finding that it would be wrong to impose the burden of making such an application on the defence, that the Crown should make the application to unseal the search warrant material. In so doing, Justice Bovard placed this obligation upon the Crown based upon the following rationale:

"46. In Stinchcombe (supra) Sopinka J. held that, the obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information (Page 14) (emphasis added).

47. I interpret this as meaning that the Crown is entitled to wait until the defence asks for disclosure before it has to begin compiling it. With the greatest of respect to Nordheimer J., and to Bassel J., I find that pursuant to Stinchcombe, the Crown is entitled to wait for the defence to request disclosure of the search warrant package before its disclosure obligations to divulge the vetted contents of the package take effect. I note that the above passage in Stinchcombe was not referred to in Maxwell."

[27] Following Beck, as noted above, a well-known practice has developed at Old City Hall where the Crown starts the process of making an application to the Court of Justice to unseal the information in support of the search warrant upon receipt of a request from the defence for this material. In Beck there was a vast evidentiary record as to the time and nature of the various steps required to be taken by various parties to comply with such a request to unseal this material. It is absolutely clear, based upon R. v. Leipert, [1997] S.C.J. 14, and other cases dealing with informer privilege, that the step of properly reviewing and vetting the material in the information in support of the search warrant to ensure that no information is released that might tend to identify an informant must be done scrupulously and carefully. This is not a process of just photocopying pages for disclosure and potentially blacking out names, addresses and phone numbers. This court agrees with the rationale set out by Justice Bovard in Beck that it is proper to put on the defence the mere obligation to request the information, and no more. I agree with the past ruling of Justice Bovard that it would be wrong to impose the burden upon the defence to actually bring the application, for the reasons he set out in that case.

[28] Ironically, the defence in this case has argued in effect that it should not even be required to make the request for this information. Rather, the applicant/ defendant has argued that the Crown should do more than directed by Justice Bovard in Beck, which has since been followed as a procedure at Old City Hall. The defence argument is that the Crown is required to take steps to obtain copies of the information to obtain material in support of the search warrants in the absence of any request by the defence for such material. In this case, the applicant / defendant has submitted that it should not be required to make the request for this material. Ironically, this argument was not based upon any principled justification such as the material being within the control and /or possession of the Crown or police. It is noted that the information in support of a search warrant is not in the possession or control of the Crown or police. It is sealed and within the control of the Ontario Court of Justice. It can only be obtained by a party, be it Crown or defence, if a party makes an application to the Ontario Court of Justice to unseal the material before the relevant judge or justice of the court, and that judge or justice orders that the material be unsealed, that the material be released and the terms of the release.

[29] The procedure for providing initial disclosure by the Crown to the defence is treated differently than for any information to obtain in support of search warrant materials. The principles of Crown disclosure obligations set out by the Supreme Court in Stinchcombe are triggered by a request by defence counsel. Nonetheless, it is apparent in this case, as in most criminal cases, that the Crown put together a package of initial disclosure without waiting for a defence request for initial disclosure. If any further disclosure material is requested, following the Stinchcombe rules, the defence can request the further material. As noted above, the information in support of the search warrant is not material in the possession or control of the Crown. It is sealed by the Court of Justice, and retained by the Court of Justice subject to any subsequent order that it be released, and on the terms of any release order.

[30] The defence in this case has submitted that the Crown should in all cases be required to take steps at the outset, potentially for all search warrant cases where charges are laid, that there be orders unsealing all of the search warrants which are executed and culminate in the seizure of exhibits which form the basis of charges before the court. This submission seems to echo the comments of Justice Nordheimer in R. v. Osei, [2007] O.J. No. 768. The defence in this case has argued that it would be akin to negligence for a defence counsel to not request such material in preparation for a case for a client where a search warrant formed the basis of exhibits which were seized and the subject of charges. However, this submission does not consider the many, many cases where search warrants are executed, exhibits are seized and form the basis for criminal or drug charges, and the case is never contested. Very often, charges are resolved by guilty pleas and/or withdrawals. Many cases in court are not contested at preliminary hearings or trials. If the Crown were to bring such applications to court to unseal the all of the search warrant material and prepare the informations to obtain for release to the defence in case it is ever requested at some date in the future, this would clearly increase the need for resources in such cases. On the other hand, a requirement that the defence simply make a request for this material is not onerous for the defence, and would at least signal an intention to want to review material to make decisions required in the representation of a client. This is not an onerous burden to place upon the defence, particularly in light of the vast resources, energy and time required to comply with such a request. Moreover, this is not a step which should in any way delay the intake process. For instance, the court suggested to the defence that it could send a letter to the crown requesting the information to obtain very early in the process of representation, perhaps similar to letters routinely sent by defence counsel to the Crown's office in the defence of drinking and driving cases where traditional categories of information are requested by way of disclosure. There was no justification or particularly good explanation or rationale given to this court as to why the defence could not simply request the information to obtain the search warrant early in the representation process, and early in the intake period. In this case, the defence did not request the information to obtain until May 26, which was a period of 3 months and almost 3 weeks after the information was sworn. Following that request and while the Crown was responding to the request, a judicial pre trial was requested on July 20 and then a judicial pre trial was scheduled and held on August 16. (In the meantime, the information to obtain was given to the defence on Aug. 14 or 15) As set out above in Tran, the judicial pre trial is a proper step in the intake process, and this court finds the time period from July 20 to August 16 to set up a judicial pre trial (in the summer holiday period) to be proper. Accordingly, the delay occasioned by the later request for the information to obtain material was from May 26 to July 20, 2011, which is under 2 months. Other cases put before this court have considered the appropriate time for this step in the process, and taking into account all of the circumstances, this court does not find the delay for this step to be objectionable considering all of the steps required to be taken.

(b) Calculating Institutional Delay

[31] This court has considered very carefully the summary conviction appeal court reasons of Justice Code in R. v. Lahiry 2011 ONSC 6780, which are compelling in considering the principles relating to an application pursuant to s. 11(b) of the Charter. This court also notes that the Court of Appeal for Ontario has approved of the rationale of Justice Code in Lahiry in the Court of Appeal reasons in Tran.

[32] In particular, the court has noted that the period of institutional delay does not necessarily begin on the last set date when the trial date is set, which was commonly marked by trial courts as the beginning of the period of institutional delay leading up to the trial date. Rather, this period does not begin until, following R. v. Morin (1992), 71 C.C.C. (3d) 1 at p. 18 (S.C.C.), at pp. 16, 18 and 26-7, "the parties are ready for trial but the system cannot accommodate them". As noted "time is prequired for counsel to prepare" and "counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case". As held by Sopinka J. in Morin, the time required for counsel to prepare and to clear their calendars when taking on a new case is part of the inherent time requirements of the case. As in the case at bar, counsel in Morin did not state a date of readiness for trial. In Morin counsel simply requested the earliest trial date, a practice which has been commonly followed by defence counsel in Toronto. This has led to a record, as in the case at bar, where defence counsel did not state at the time of setting the trial the point at which counsel would be prepared for trial and to clear the calendar for the particular case. In Morin, Sopinka, J. was not prepared to infer that the parties were immediately ready and available for trial when setting the trial date. In R. v. Khan (2011), 270 C.C.C. (3d) at paras 32-36, the Court inferred that the parties were not ready to proceed with the preliminary hearing at the point when the date was first set, and in fact characterized the first 5 months and 10 days of the 8 month and 20 day period leading up to the preliminary hearing as part of the inherent time requirements of the case. Only the last 3 months and 10 days was characterized by the COA as the institutional delay. Justice Code noted in Lahiry that counsel have always acted with integrity in stating when they are actually ready and available to conduct the trial. He also noted that it is rarely true that counsel is immediately available for trial when setting a date.

[33] In the case at bar, the court recognizes that the record does not state the time that would be required for defence counsel to prepare for trial, and to clear the calendar for trial. Rather in an affidavit from the legal assistant to the defence counsel, she indicates that the complete disclosure package was approx. 200 to 250 pages, together with a photo lineup and the testing of drugs by Health Canada. This court also notes that there were two informations to obtain requested and given, each approximately 27 pages in length. In this case, the defence contemplated and did bring a Charter application to exclude evidence pursuant to s. 8 and 24, which required a written application and the preparation of materials. The defence also brought an application for delay which is the subject of the reasons herein, which required the preparation of material and a factum together with copies of cases. The statement of the legal assistant to the effect that the defence counsel "has advised me that he would require no more than one day to prepare for a case of this kind" is not the type of information that this court would find addresses the need for evidence as to a time frame required for a defence counsel to prepare for a case of this kind, as set out in Morin and Lahiry. The court finds this statement in the affidavit of the assistant to be unhelpful. It does not assist the court in determining the time that would be required for the defence counsel to prepare for trial following the setting of the trial dates. Moreover, the rules require service of Charter materials to be weeks prior to the trial date, and s. 11(b) applications to generally be brought 6 to 8 weeks prior to the trial date. A one day period to prepare for trial does not address the time required prior to trial for the inherent time requirements for counsel preparation leading up to the trial. Further, the affidavit of the legal assistant to the defence counsel appears to address retroactively looking backwards at the past calendar of defence counsel whether there had been numerous dates where counsel would have been available for trial. Again, this statement does not address the needs of this court in assessing the availability of counsel as of the time when trial dates were set. The statement also does not provide any dates whatsoever as to when counsel was available. None of the dates are stated. Moreover, the trial required two consecutive days, or two days closely together, as the trial time estimate set by counsel and approved by the judicial pre trial justice. Accordingly the court would be looking for counsel availability for two trial days together or in very close proximity. Secondly, Morin and Lahiry spoke to looking from the date the trial was set and into the future, with the state of the lawyer's calendar when the trial date was set as to when it could have been accommodated as of that point in time. In that regard, the record is silent, perhaps understandably so given that many counsel have previously not adopted a practice of stating availability as suggested in Morin and Lahiry.

[34] In any event, the period of time between the last set date, September 6, 2011 to June 13 (and 14), 2012, is a period of approximately 9 months and one week for a 2 day trial. In Lahiry the court found that a period of 1 month and 20 days would be needed for counsel to prepare for what this court would find would be a simpler trial than the trial before this court. In any event, if this court allocated a period of two months, similar to that but slightly in excess of the period in Lahiry, this would reduce the institutional delay from 9 months and one week to 7 months and one week, well within the Morin guidelines.

Actions of the accused

[35] One aspect of this case which might be considered an action of the accused contributing to delay is the delay in the defence request for a copy of the information to obtain. The court makes this observation following its comments above under the consideration of the inherent time requirements and the intake period. Clearly the step of requesting the information to obtain, and the process of editing and redacting the material prior to providing this to the defence is an important step in the intake process. The court makes the observation that the actions of the accused in delaying to make this request until a number of months into the intake process, given the known procedure at Old City Hall court following R. v. Beck would clearly delay the release of this information and lengthen the intake period. However, given that this court finds that this is a proper step to be taken by a defence counsel properly representing a client facing a charge where a search warrant was executed and materials seized forming the basis of the charges, it should properly be considered a neutral time period as part of the inherent time requirements for the case. The court simply makes the observation, however, that if the defence wanted to hasten the intake period and proceed more quickly to a trial or a preliminary hearing, it is not a lot to expect the defence to request this material early in the intake period by way of a letter to the Crown requesting this information, rather than waiting until the majority of disclosure is received and reviewed.

[36] The defence was unavailable for the first two days offered by the court for the trial of this matter, being June 11 and 12, of 2012. This however only caused a delay of two days, which is fairly inconsequential in the calculation of delay in this case.

[37] The defence did not waive any periods of delay in this case.

Actions of the Crown

[38] As noted above, the court has found that the Crown took too long to provide initial disclosure in this case, and has allocated a period of 1 month and 18 days of delay as lying at the feet of the Crown. In addition, the defence has argued that the Crown is responsible for the additional day in the intake period attributable to obtaining the information to obtain, and not taking steps to do so prior to providing initial disclosure. This issue is discussed above, and as noted the court allocates this period to the inherent trial requirements in the intake period of the case.

Prejudice to the accused

[39] Prejudice can be inferred from delay simply due to the fact that memories fade and witnesses may disappear over time.

[40] I am cognizant of the fact that prejudice always arises from the fact of being charged. The inevitable embarrassment and stress arising from criminal charges is not what is in issue in s.11(b). Rather, the focus of concern in s.11(b) is prejudice caused by unreasonable delay: see R. v. Bennett (1991), 64 C.C.C. (3d) 449 (Ont. C.A.) at 477-478, aff'd (1992), 74 C.C.C. (3d) 384 (S.C.C.)

[41] In assessing prejudice, it is important to examine prejudice resulting from delay in relation to liberty interests. In this case, Mr. Lu provided an affidavit which was filed in evidence. The Crown did not cross-examine Mr. Lu.

[42] Mr. Lu has been required to live with his surety as a term of his bail. He is married and has a child, who would be 21 months of age currently. The conditions in the residence of the surety were crowded, and without much privacy, so Mr. Lu's wife and child rented another house to live in while he is on bail. In terms of employment, Mr. Lu has been employed, and his comment regarding other possible employment positions does not seem to suggest that he has lost any employment or been unemployed for any period of time related to the outstanding charges. Mr. Lu has been as a term of bail unable to have a cell phone which he has indicated has impacted on his inability to receive phone calls at work from his wife possibly related to their child. As a term of bail he has been prevented from leaving Ontario, and was therefore prohibited in the summer of 2011 from travelling with his family to Vietnam for 2 months. This trip was within approximately 6 months of the date on which Mr. Lu was charged, within the intake period and prior to the trial date being set.

[43] There is no indication in the affidavit of any concerns related to prejudice as they might affect fair trial issues in this case.

[44] It does not appear that there was an application brought to vary the bail conditions.

[45] Most of the appearances in this case were by way of designation. The applicant / defendant was not required to be present on those occasions.

[46] This court would find that there is minimal actual prejudice in this case caused by delay as distinct from having been charged. For instance, a family trip to Vietnam took place in the summer of 2011, which was during the intake period prior to setting the trial date. In terms of inferred prejudice, the court is mindful of the principles set out by the Supreme Court of Canada in R v Godin, [2009] 2 S.C.R. 3 at paras 31 and 34. Prejudice may be inferred from the length of the delay, and the longer the delay the more likely that such an inference will be drawn.

[47] In this case the institutional delay was approx. 7 months and one week. The court has calculated this as the period of institutional delay following the setting of the trial date, after deducting a period for counsel to be prepared to do the trial.

[48] Prior to this period of institutional delay, as set out above there was a period of 1 month and 18 day delay in the intake period in providing initial disclosure that this court has found lies at the feet of the Crown. The court is mindful of the complexity of this case, and what the Court of Appeal has approved a lengthier intake period as proper in the similar case of Tran. The intake period in this case included a 3 week period to consider a possible resolution of charges and a 1 month and 20 day delay caused by the defence not requesting the information in support of the search warrant until relatively late in the intake process, (for what were two search warrants and two separate informations to obtain).

[49] This results in a period of institutional and Crown delay of just under 9 months, well within the constitutionally tolerable length of delay in Morin.

Conclusion

[50] Taking all of the factors and evidence into account, this court dismisses the application to stay the proceedings based upon delay. The applicant has not convinced the court on a balance of probabilities that his rights under s. 11(b) of the Charter were infringed.

Released: June 13, 2012

Signed: "Justice Beverly A. Brown"