WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: Toronto Y120677-91 Date: 2013-03-11 Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

A.J., a young person

Before: Justice Ellen B. Murray

Reasons for Decision released on: March 11, 2013

Counsel:

• Ms. Stacey Siopis for the Crown
• Mr. David Berg, counsel for the accused A.J.

Decision

MURRAY, E.B. J.:

[1] Application for Stay of Proceedings

[1] This is an application by the defendant A.J. asking that a number of firearms charges[1] laid against him on December 10, 2011 be stayed because his right pursuant to section 11(b) of the Charter to be tried within a reasonable time has been violated. The trial, estimated to require five days, is scheduled to commence on March 25, 2013.

[2] The Crown opposes the application.

[3] The Crown's description of the circumstances of the offence can be summarized as follows:

• Police were called to the Sheraton Centre Plaza hotel in Toronto on December 10, 2011 in response to a "gun call", and were directed to room 861.
• They heard loud arguing and saw three people exit the room, and entered as the door started to close. They directed the three individuals remaining in the room to get on the ground.
• Police saw the defendant on the floor between two beds, with his hand over a semi-automatic gun. There were 11 rounds in the chamber and one in the magazine, and the safety was off.
• The two other individuals were by the window on the opposite side of the room.

[4] Arrests were made and charges ultimately laid against the defendant, two other young persons, D.N. and M.H., and two adults. The defendant was released on December 12, 2011, having been granted bail after a contested show cause hearing. His bail requires him to be in his place of residence subject to a number of exceptions, and has been varied from time to time.

1. History of Proceedings

[5] I set out below the chronology relevant to this application.

Date	Event
December 10, 2011	The defendant, D.N., and M.H. are arrested and charged.
December 12, 2011	The defendant is released on bail requiring that he be in his home except to attend school and except in the company of his surety (his mother) or his father.
January 16, 2012	1st court appearance. All defendants present. Initial Crown disclosure is provided. Counsel for the defendant indicates that if disclosure is "reasonably complete", he wishes to set up a Crown pretrial. M.H.'s lawyer does not attend, and asks through duty counsel that matter be put over to February 15, 2012, a date agreed to by counsel for the defendant and for D.N.
January 20, 2012	Counsel for the defendant sends letter to Crown re: outstanding disclosure needed, including p. 41 of notes of Sergeant Ferry, which he highlights as very important.
February 15, 2012	2nd court appearance. Counsel for the defendant indicates there is outstanding disclosure. Counsel for D.N. indicates that she is not prepared to hold a pretrial until she receives disclosure with respect to unrelated federal charges faced by her client. Matter put over to March 5, 2012. Counsel for the defendant sends a letter to Crown on February 20, 2012 about outstanding disclosure.
March 5, 2012	M.H. attends court before counsel for D.N. and for the defendant, and at M.H.'s request matter is adjourned to April 16, 2012. Upon later attendance, counsel for the defendant states that p. 41 of Sergeant Ferry's notes is still outstanding, and that no pretrial discussions can take place until it is furnished. Counsel for D.N. indicates that she will pick up further disclosure, and that after she reviews it "we will be in a position to move the matter forward". Counsel for the defendant sends a further letter to the Crown on the same day with respect to missing disclosure.
March 28, 2012	The defendant's bail is varied on consent to allow him to attend a different school.
April 16, 2012	4th court attendance. Further disclosure is furnished to the defendant. Counsel for the defendant notes the continuing absence of p. 41 of Sergeant Ferry's notes, but says that he intends to conduct a Crown pretrial that week. Counsel for D.N. indicates that she is ready to conduct a Crown pretrial. Counsel for the defendant states that a judicial pretrial will also be required. Case is adjourned to May 1, 2012, so that Crown pretrial can be conducted.
April 19, 2012	Crown pretrial held.
May 1, 2012	5th court attendance. Counsel for the defendant attempts to set a date for a judicial pretrial, but dates offered by letter from counsel for M.H. do not coincide with other defence counsel's available dates. Counsel for D.N. is unable to stay while office of counsel for M.H. is contacted, and matter is put over to May 8, 2012.
May 3, 2012	After numerous requests by Crown to police, the Crown receives p. 41 of Sergeant Ferry's notes on this date. However, this page is not disclosed to the defence until July 5, 2012.
May 8, 2012	Judicial pretrial is scheduled for July 5, 2012, the first date available for all defence counsel. Court offered earlier dates of May 15, and June 1, 2012. Counsel for the defendant was available as early as May 18th, and counsel for D.N. was available as early as May 17th.
June 26, 2012	Defendant is granted a bail variation allowing him to be outside his residence for reasons supplementary to those in his initial bail: to participate in activities at an Islamic Centre Monday to Friday, 9 a.m. to 6 p.m., and to seek employment, with written permission from his surety or father.
July 5, 2012	Judicial pretrial held and trial is scheduled commencing March 25, 2013. Just before commencement of the pretrial, p. 41 of Sergeant Ferry's notes is given to counsel for the defendant. Record indicates that counsel for the defendant was available for a trial starting "at the end of the month" and on "150 if not more" days in 2012. Counsel for M.H. was available starting August 13, 2012, and on other unspecified days each month throughout 2012 and 2013. Counsel for the defendant, as agent for counsel for D.N., indicates that she had "many, many days" available for the trial, although no specific dates were furnished. The assigned Crown was not available until February 27, 2013. Court dates were not available before January 2013. Counsel for the defendant indicates for his client and for D.N. that they are not waiving 11(b) rights.
October 15, 2012	The defendant is arrested and charged with breach of recognizance. He is released on October 17, 2012 on a global bail which provides that he is to be in his home except to attend school, or when in the company of one of his three sureties, or with a signed and dated letter of permission from one of his sureties.
November 23, 2012	Crown writes to counsel for D.N. and M.H. offering to stay the charges, upon each young person furnishing a statutory declaration that the firearm was not his and he was not in possession of it. Crown notes that a recent update indicates that RCMP report re: cell phones will not be available for trial date, and that this development has prompted a review of the strength of the case against these individuals. Charges are subsequently stayed.

2. Analytical Framework

[6] Some delay in the adjudication of a criminal charge is to be expected; section 11(b) of the Charter protects a defendant against "unreasonable delay". The Supreme Court of Canada set out the analytical framework to be used in assessing applications under section 11(b) of the Charter in R. v. Morin, [1992] 1 S.C.R. 771. Justice Sopinka, speaking for the majority of the Court, specified four factors to be considered:

1. Length of the delay
2. Any waiver of the delay
3. The reasons for the delay, and more particularly:
   • Inherent time requirements of the case
   • Actions of the defendant
   • Actions of the Crown
   • Limits on institutional resources
   • Other reasons for the delay
4. Any prejudice suffered by the defendant

[7] Justice Sopinka held that an 11(b) application is not properly decided by resort to a mathematical formula, and should involve the balancing of the interest which s. 11(b) is "designed to protect against the factors which lead to delay or are otherwise the cause of delay". He observed as follows:

26 The primary purpose of s. 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this Court. I will address each of these interests and their interaction.

27 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.

28 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.

29 The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason, (1983) 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.

[8] The overriding duty of a court hearing an 11(b) application was addressed by Justice Beverly McLachlin in her concurring decision in Morin:

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

[9] R. v. Morin set out administrative guidelines as to what period of delay should prompt judicial consideration of a stay. The Court observed that delay is calculated from the laying of a charge to the conclusion of trial, and held that "unreasonable delay" does not include delay caused by the inherent time requirements of the case or by periods waived by the defence. The Morin guideline as to unreasonable delay in the provincial courts was 8-10 months.

[10] The court cautioned that this 8-10 month period is a guideline only, and could vary according to local conditions and changing circumstances. The Court also held that application of the guideline would be affected by the presence or absence of prejudice to the defendant because of institutional delay; the greater the prejudice, the shorter the acceptable period of such delay.

[11] As Justice Michal Code noted in R. v. Lahiry, 2011 ONSC 6780, in an 11(b) analysis, "some delays are said to 'weigh against the Crown', some delays are said to 'weigh against the defence', and some delays are said to be 'neutral'".

[12] In Morin, Justice Sopinka defined "institutional delay" as the period which starts after the parties are "ready for trial but the system cannot accommodate them". In the analysis of Morin and subsequent cases, both institutional delay and Crown-caused delay "count against" the Crown in an 11(b) application.

[13] Delays caused by the actions of a co-accused are sometimes characterized as part of the inherent time requirements of a case[3], and sometimes classed as neutral under "other causes for delay" in the Morin analysis[4]. However these delays are characterized, they do not run against the Crown or against a defendant who has not contributed to the delay caused by a co-accused. In this decision, I use the term "neutral" to refer to delays which do not run against the Crown and the defendant A.J.

[14] The Ontario Court of Appeal considered the proper framework for determination of 11(b) applications in cases involving young persons in R. v. M.(G.C.), (1991) O.J. 885. The court rejected the argument that young persons were entitled to a "special constitutional guarantee" to trial within a reasonable time, but held that a young person may be more prejudiced by delay than an adult, and that "delay which may be reasonable in the adult criminal system may not be reasonable in the youth court". The court noted that young persons are less able than adults to appreciate the connection between their behaviour, and that this factor supports a conclusion that it is reasonable for a young person to expect a more expeditious trial than an adult may be afforded. The court suggested an administrative guideline for delay of five to six months, after the inherent requirements of the case and delay occasioned by the defence are taken into account.

[15] In R. v. T.R., (2005) O.J. 2150, the Ontario Court of Appeal held that the YCJA did not introduce a new regime as to the timeliness required in the conduct of youth cases, and that the YCJA represents a codification of the YOA (Young Offenders Act) jurisprudence on this issue. The court found that the M.(G.C.) case and its guideline is still good law.

[16] I turn now to the application of these principles to the instant case.

3. Analysis

3.1 Length of the Delay

[17] Counsel agrees that the total delay is 15.7 months, or 472 days, and that delay of this length merits judicial scrutiny.

3.2 Waiver

[18] There has been no waiver of 11(b) rights by the defendant.

3.3 Reasons for the Delay

[19] Here, the case becomes factually complex. Defence and the Crown agree that the first 37 days of the case are intake and should be classed as neutral; there they part company.

[20] The defence, after attributing four days[5] used to review initial disclosure against itself, submits that the remaining 431 days or approximately 14.3 months of delay is attributable either to the Crown or to limits on institutional resources, and should weigh against the Crown in this application. The defence calculations are attached as Schedule A.

[21] The Crown submits that the remaining 435 days are attributable to the inherent requirements of the case or to defence delays. The Crown calculations are attached as Schedule B.

[22] The differences in the two analyses arise primarily because of differences in the analysis of Crown and defence on three issues:

1. The effect of the delay in disclosure of p. 41 of Sgt. Ferry's notes on delay.
2. The effect on the analysis of the timing of Crown's decision to stay against two young persons who were co-accused with the defendant.
3. How the earliest date that defence counsel were prepared to go to trial should be calculated for the purpose of allocating periods of delay.

3.3.1 Special Duty on the Crown to Explain Delay?

[23] Overarching the defence argument is the proposition that s. 3(1)(b)(v) of the Act places a special duty on the Crown. That subsection states that the criminal justice system for young persons must emphasize "the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time". Defence counsel argues that this provision places a positive duty on the Crown to justify all delay in youth matters, and that this duty translates into an evidentiary onus on the Crown to provide acceptable explanations for any delay before such delay is allocated to the inherent requirements of a case, or classed as "neutral" against the Crown. Counsel offered no support in the caselaw for this proposition, except to refer to comments made by Lamer, J., in his dissenting decision in R. v. Mills, (1986) 26 C.C.C. (3d) 481. The Crown did not respond to this argument.

[24] I do not accept defence argument on this point. The Ontario Court of Appeal overturned a trial judge who espoused the view advocated now by the defence in R. v. T.R., supra:

27 First, the youth court judge erred in stating that there was an enhanced responsibility on the Crown and the police to ensure that youth justice matters are dealt with "much more quickly than was even expressed under the Young Offenders Act."

28 It is true that there is wording in s. 3 of the YCJA that speaks directly to the speed of youth justice proceedings. Section 3(1)(b)(iv) mandates "timely intervention" and s. 3(1)(b)(v) addresses "the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time".

29 These are not, however, new requirements. They were also central to the interpretation of the YOA. Indeed, a fair observation would be that much of s. 3 of the YCJA is a codification of the jurisprudence relating to the YOA.

30 This observation is true on the issue of the timing of youth justice proceedings. For example, the wording of s. 3(1)(b)(v) of the YCJA is reflective of leading decisions of the Supreme Court of Canada such as R. v. D.(S.) (1992), 72 C.C.C. (3d) 575 at 576, [1992] 2 S.C.R. 161, wherein Sopinka J. affirmed that "charges against young offenders be proceeded with promptly".

[25] I add that Justice Sopinka in Morin cautioned against determining 11(b) applications primarily on assessments of the evidentiary burden of proof:

33 The role of the burden of proof in this balancing process was set out in the unanimous judgment of this Court in Smith, supra, at pp. 1132-33, as follows:

• I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it. [6] Although the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case. For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances. In all cases, the court should be mindful that it is seldom necessary or desirable to decide this question on the basis of burden of proof and that it is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors referred to above.

[26] As can be seen below, I was able to determine this application on the basis of the facts presented by the parties.

3.3.2 January 20, 2012 - July 5, 2012: Delay in Crown Disclosure

[27] Defence counsel argues that the period between the date of his receipt and review of initial disclosure (January 20, 2012) and the date of the judicial pretrial at which a trial date was set (July 5, 2012) should be attributed to Crown delay. Defence grounds this claim on the Crown's failure to provide timely disclosure, and particularly in its failure to provide p. 41 of Sergeant Ferry's notes, until July 5, 2012.

[28] The defence argues that it could not move to the next step—a judicial pretrial, and scheduling of a trial—without receiving this piece of disclosure. It is clear that the defence was diligent in pursuing disclosure.

[29] The Crown argues that although disclosure of p. 41 should have been provided sooner, that its absence did not furnish a sufficient reason to delay moving on to the next step in the case, a judicial pre-trial conference.

[30] What was provided in the initial disclosure received January 16, 2012?

• Sergeant Hayward stated that he heard Sergeant Ferry yell "gun", and saw the officer's right foot on the hand of a male who was on the floor between the beds, with a gun in his hand. He later learned that this male was the defendant.
• P. 42 of Sgt. Ferry's notes state that he removed a gun from the left hand of a male whom he later identified as the defendant.

[31] Page 41 of Sergeant Ferry's notes (provided July 5th) deals with:

• The location of the three males in the room (the defendant between two beds, the other two males across the room by the wall), and
• His initial observation of the gun: "I can see the male's left hand over a semi-automatic gun attempting to push it under the bed. I step on hand and yell "gun" with right foot".

[32] The failure of police to furnish this page earlier, and of the Crown to forward it when received, is unexplained[7] and regrettable. However, as was noted in the case of R. v. D.K. and J.F., (2012) O.J. 3902 (Ont. C.J.), if the timeliness of disclosure is an issue, the defence may be advised to schedule a judicial pretrial simply to trigger the disclosure. That is exactly what happened in this case. The fact that it is regrettable that this additional effort by the defence was required to secure disclosure does not equate with a finding that it was reasonable for the defence not to proceed to the next step in the case until the page was received.

[33] Case law has held that the defence may be obliged to move to the next step of a case even when mandated disclosure is not complete[8]. The initial disclosure expected of the Crown is disclosure which will allow an accused sufficient information to plead and to elect his mode of trial. The Ontario Court of Appeal has held that the obligation of the Crown to make disclosure is continuing, and the Crown is not required to disclose "every last bit of evidence" before a trial date is set; the defence does not forfeit its "Stinchcombe rights" by agreeing to set a trial date[9].

[34] Defence counsel in this case was unable, in answer to a question from the bench, to articulate how the missing page 41 would have affected his client's decision on whether to plead guilty or go to trial.

[35] I do not find that the delay in Crown disclosure was a justifiable reason for the defence not to take the next step in this case to progress to trial.

[36] Further, in my view, the delay in the progress of the case towards trial cannot be accurately characterized as caused by the problem with Crown disclosure. The situation is similar to the situation assessed by the Court of Appeal in R. v. Schertzer, supra. The court found that the trial judge had erred in granting an 11(b) application by five of the accused, holding that the disclosure problems, although real, did not cause the delay in the progress of the case. In my view, the cause of the delay in the setting of a judicial pretrial, in addition to the defendant's reluctance because of the missing p. 41, was the fact that the co-accused were not ready to go to a pretrial any earlier than the pretrial that was scheduled for July 5, 2012.

3.3.3 Allocation of Period Between January 20, 2012 - July 5, 2012 (Pre-trial)

[37] The Crown submits that the delay in this period (January 20, 2012 to July 5, 2012) is attributable in part to the inherent requirements of the case and in part to delay by defence counsel for M.H. and D.N., and that this delay should not count against the Crown.

[38] In making its argument the Crown relies upon the decision of Justice Code in R. v. Lahiry, supra, and submits that a reasonable intake time for a case of this complexity is three months. She points out that the case involved 19 officers, 3 civilian witnesses, anticipated expert reports, and five accused (3 youth and two adults). She submits that an intake period of this length was required to deal with all the activities required of counsel (both Crown and defence) at the initial stage, such as retention of counsel, conducting bail hearings, police and administration paperwork, disclosure, review of disclosure, obtaining instructions and pretrial meetings. Any delay after this intake period, she argues, is attributable to the defence.

[39] Defence counsel argues that (missing disclosure aside) he was prepared to proceed to the next step, the judicial pretrial, just four days after initial disclosure on January 20, 2012, and that the period after that date to the date of judicial pre-trial should run against the Crown. However, this argument ignores the time he required to set up and conduct both a Crown pretrial and a judicial pretrial, and ignores the situation of counsel for both co-accused.

[40] As noted above, normally delay caused by a co-accused (and not attributable to the moving party) is characterized as either "neutral" or as part of the inherent time requirements of a case in the 11(b) analysis[10]. In this case, there was delay in getting to a judicial pretrial caused by the schedules of counsel for the co-accused. Until the appearance of May 1, 2012, counsel for both of the co-accused indicated on the record that they were not prepared to set up a judicial pre-trial. (Neither complained of lack of disclosure in explaining their delay.) An adjournment from May 1, 2012 to May 8, 2012 was necessary for all defence counsel to find a mutually agreeable date for a judicial pre-trial. The first mutually agreeable date was July 5, 2012, even though May 15th was available to the court.

[41] Given this, I characterize the time from January 20, 2012 to July 5, 2012 as neutral against both the Crown and the defendant A.J.

3.3.4 July 6, 2012 - March 25, 2013: Delay Caused by Timing of Crown's Decision to Stay Against Co-accused?

[42] Defence counsel's factum posited that the period between the setting of the trial date on July 5, 2012, and the commencement of trial on March 25, 2013 should be characterized as institutional and Crown delay[11]. In argument, however, he conceded that he would not have been ready to go to trial before the end of the month—i.e., July 31, 2012—but maintained that the balance of the time should count against the Crown.

[43] Counsel for the defendant's co-accused were not ready to go to trial as early as the defendant A.J. Defence counsel submits that, contrary to the usual rule, that the delay occasioned by the co-accused in this case should be assessed against the Crown, because the Crown was not diligent in assessing reasonable prospects of conviction against the co-accused. Defence does not allege mala fides, but submits that the Crown has not disclosed any change in the evidence available after July 5, 2012 that adequately explains why the Crown waited until November 2012 to offer a stay.

[44] What were the implications of the Crown not entering the stay until after the trial date was set on July 5, 2012? Defence counsel says that if charges against the co-accused had been stayed on or before July 5, 2012, then the conflicts caused by the schedules of three defence counsel would have been eliminated, and that less than five days would have been necessary for trial. He says that with the elimination of both co-accused, it would have been clear that delay after defence counsel's first available date—July 31, 2012—should count against the Crown.

[45] The Crown says that there was a reason why a stay was not offered to the co-accused until November 2012; it was then that the RCMP advised that its search of cell phone cameras seized at the scene, which the Crown hoped might yield further evidence, was unlikely to be available by trial. The Crown adds that the evidence to be presented against the defendant is the same evidence as would have been presented against all three accused, and that it is unlikely that the removal of the co-accused will shorten the trial.

[46] Defence offers no support in the caselaw for its argument on this point, and I do not think that it can succeed.

[47] It is within the Crown's discretion, after an assessment of the reasonable prospect of conviction, as to whether it enters a stay of proceedings against an accused. Many factors can enter into the Crown's assessment of reasonable prospect of conviction, factors that cannot necessarily be disclosed to a trial judge hearing the 11(b) motion of a defendant without prejudicing that person's right to a fair trial.

[48] The Ontario Court of Appeal held in R. v. Cornacchia, (1992) 72 O.A.C. 310, that absent evidence of bad faith on the part of the Crown, the basis and the timing of its decision to stay against a co-accused is immaterial on an 11(b) application. In that case, the accused made an argument on an 11(b) application similar to the argument of the defendant in this case. Mr. Cornacchia was charged with others in a complex fraud case. He argued that he was a minor participant, and brought a motion for severance which was opposed by the Crown[12]. He succeeded in the motion, and subsequently brought an 11(b) motion arguing that the Crown's unreasonable refusal to consent to severance had caused him to wait an unreasonable length of time to get to trial. Justice Finlayson rejected the argument, observing that "the complaint of the appellant comes down to the exercise of discretion by the Crown", and that, absent bad faith, the exercise of the Crown's discretion in matters such as these is not reviewable.

[49] I conclude that delay caused by the co-accused in this case should not count against the Crown by reason of its alleged lack of diligence in entering a stay against the co-accused.

3.3.5 Allocation of Period Between July 6, 2012 and March 25, 2013 (Trial)

[50] When delay caused by the co-accused is taken into account, the defence argues that Crown or institutionally-caused delay should run from August 13, 2012, the earliest date on which counsel for M.H. was available for trial.

[51] Although the Crown in its factum conceded that the period between July 6 - March 25, 2013 was Crown or institutional delay, new counsel for the Crown advanced a different position in argument on the motion hearing[13]. The Crown submitted that this entire period should not count against the Crown, but should be characterized as defence delay or part of the inherent time requirements of the case. The Crown advances two arguments in support of this proposition.

1. Specificity of Defence Counsel Availability

In both Morin and Lahiry it was held that in an 11(b) motion the defence should be required to have stated with precision on the record the earliest date that counsel was available for trial. When this case was scheduled for trial, although Crown counsel and counsel for the defendant and for M.H. indicated a specific earliest trial date available to them, counsel for D.N. indicated through an agent only that she had "many days" available, and did not provide a specific date. In R. v. Emmanuel[14] Justice Code observed that specific dates for counsel's availability should be placed on the record in an 11(b) motion, because the court hearing the motion should not be required to reach a decision in an evidentiary vacuum. Justice John Murray noted Justice Code's reasoning in deciding an 11(b) application in R. v. Prins, 2013 ONSC 458. Justice Murray found that, as defence counsel had not stated with specificity on the record that he was available for trial on any specific day prior to the date set for trial, that the fair inference was that counsel's earliest available date was the trial date. The Crown asks me to draw the same inference in this case with respect to counsel for D.N.

2. Mutually Agreeable Trial Dates

The Crown argues further that where there are multiple defendants, the practice of counsel individually submitting their earliest available dates is of no assistance to the court on an 11(b) motion. She submits that what is required is that mutually agreeable trial dates for counsel should be put on the record. If mutually agreeable dates are not provided, Crown submits that the court would be called upon to speculate what in fact would be the earliest date upon which all defence counsel could proceed. Support for this argument is found in the cases of R. v. D.K. and J.F., supra, at para. 26, and R. v. L.G., (2007) O.J. 3611 (C.A.), at para. 34.

Counsel in this case did not agree upon and place on the record mutually agreeable dates for the commencement of trial. Thus, the Crown asks that I infer that March 25, 2013 was the first such date.

[52] I agree with both Crown arguments on this issue. I note that the assigned Crown in this case was not available until February 27, 2013. It is not acceptable in a youth case that the Crown cannot provide trial counsel for more than 7 months after a trial date is set. If it were not for the difficulties in determining specific dates on which all defence counsel were available, then I would have ascribed the delay from the date that all defence counsel were available to February 27, 2013 against the Crown. However, given the lack of evidence on the availability of defence counsel, I find that the period between July 6, 2012 and the trial of March 25, 2013 should be characterized as attributable to the inherent requirements of the case, and as neutral against the Crown and the defendant A.J.

3.3.6 Summary of Characterization of Delay

[53] In summary, then, I characterize the delay in this case—from the laying of the charge to the commencement of trial on March 25, 2013—as part of the inherent time requirements of this case, and neutral as against the Crown and the defendant A.J.

4. Prejudice to the Defendant

[54] Prejudice from delay can be either inferred simply because of the length of the delay, or because of reasons particular to an accused.

[55] Prejudice cannot be inferred from the length of the delay in this case, as there is no delay that is not characterized as part of the inherent time requirements of the case.

[56] The particular prejudice complained of here is the restriction on the defendant's liberty interest by reason of restrictive bail conditions. There is no evidence of the impact of these restrictions on the defendant, other than one sentence in the affidavit of a legal assistant from the offices of the defendant's lawyer stating that the defendant has found "the house arrest condition to be very difficult". I note that the defendant's bail has always entailed some reasonable exceptions, exceptions that have been broadened as time to trial has elapsed. By October 15, 2012, the defendant was permitted to be outside his place of residence as long as he had a signed and dated letter from one of his sureties.

[57] Although it may be that the defendant has suffered some prejudice by reason of the length of time that he has been subject to the conditions of his bail, I do not find that this prejudice outweighs the interest of society in having these serious charges tried on the merits. The concern which the public has with gun violence in Toronto was remarked upon by Justice Nordheimer in R. v. Brown, (2007) O.J. 5659, para. 20, and has since then been noted by courts with increasing frequency.

5. Conclusion

[58] I dismiss the defendant's application to stay the charges against him because of delay in the case coming to trial.

Released: March 11, 2013

Signed: Justice Ellen B. Murray

Footnotes

[1] Possession of a prohibited weapon; possession of a prohibited firearm with ammunition; unauthorized possession of a prohibited weapon; possession of a prohibited weapon knowing its possession is prohibited; careless storage of a firearm; and possession of a prohibited device for a dangerous purpose.

[2] As she then was.

[3] R. v. Schertzer, (2009) 248 C.C.C. (3d) 270, at para. 91-94 and 110-112.

[4] R. v. Farewell, 2008 BCCA 9, at para. 89.

[5] January 17-20, 2012

[6] My emphasis.

[7] The record shows that the Crown repeatedly requested p. 41 from the police over a 3 month period. After police furnished p. 41 to the Crown, a further 2 months elapsed before the page was provided to the defence.

[8] R. v. Kovacs-Tator, (2004) O.J. 4756 (C.A.)

[9] R. v. Kovacs-Tator, supra, para. 47.

[10] See also R. v. L.G., (2007) O.J. 3611 (C.A.)

[11] The 11(b) analysis in existing caselaw relates to applications made at trial, and holds that it is the end date of the trial which is relevant in assessing delay. This application was made prior to trial, and counsel were content to argue on the basis that the commencement date of trial is the relevant date for this application.

[12] In this case, the defendant did not choose to move for a severance before the stay was entered against his co-accused.

[13] Defence was alerted to the new Crown argument before the motion hearing, and did not complain of surprise.

[14] (2012) O.J. 709, 2012 ONSC 1132