Court File and Parties

Court File No.: Toronto M – 12005054 – 12

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mario De Chiara

Before: Justice Paul H. Reinhardt

On: 6 February 2013

Reasons for Ruling released: 14 March 2013

Counsel:

• Marieke Newhouse, for the Crown
• Heather Spence, for the Applicant

REINHARDT J.:

Introduction

[1] On 17 November 2011, Mr. De Chiara was charged with the Criminal Code offence of section 253(1)(b): Operating a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood ("Over 80") with an alleged offence date of 8 November 2011.

[2] By Notice of Application dated 3 January 2013, returnable 6 February 2013, the defendant brought application before this court for the stay of these proceedings based upon unreasonable delay, pursuant to Section 11(b) of the Canadian Charter of Rights and Freedoms.

[3] The Applicant seeks a stay of proceedings, pursuant to section 24(1) of the Charter on the grounds that his rights as guaranteed by s. 11(b) of the Charter has been violated. The overall time period in this case from the date of arrest to the trial date is approximately 16 months 9 days.

1: History

Chronology

[4] On 9 November 2011 the applicant is charged and released on a promise to appear.

[5] On 17 November 2011 the Information is sworn.

[6] On 9 January 2012, the return date on the promise to appear, the matter is up in court for the first time; counsel appears on behalf of the applicant and receives partial disclosure.

[7] On 24 January 2012 counsel appears and advises the court that a Crown pre-trial has been scheduled for 31 January 2012. The matter is then adjourned to 3 February 2012.

[8] On 26 January 2012 counsel sends a disclosure letter to the Crown Attorney's office requesting the in-car DVD, the breath room portion of the station DVD (only the parading of the applicant had been provided) as well as training materials and calibration logs.

[9] On 27 January 2012 a Crown pre-trial is held. Following the pre-trial, the disclosure letter of 26 January is again faxed to the Crown's office, with some additional items requested including the complete notes of the breath technician and the notes of several officers who were involved in the Applicant's detention after the breath samples.

[10] On 6 February 2012 counsel attends to discover that no additional disclosure is ready and the matter is adjourned to 5 March 2012.

[11] On 28 February 2012 a further disclosure letter is sent to the Crown Attorney's office again requesting the breath room portion of the station DVD, the breath technician's complete notes, and notes of several officers who were involved in the applicant's detention as well as training materials and calibration logs.

[12] On 5 March 2012 a disclosure letter is sent to the Crown Attorney's office stating:

in court we received three (3) additional DVD Two of the DVD's contained the in car camera footage of the traffic stop and arrest of our client (identical footage) and the third DVD could not be opened.

[13] This letter again once again outlines the remaining outstanding disclosure including the breath room portion of the station DVD, the breath technician's complete notes, and the notes of several officers who were involved in the applicant's detention as well as training materials and calibration logs.

[14] On 26 March 2012 counsel again attends in court and again no additional disclosure is provided. Crown counsel, Ms. McDonald, indicates that the disclosure letter of counsel was provided to a designated "disclosure" Crown, Ms. Mackett, on 20 March 2012. The matter is adjourned to 16 April 2012.

[15] On 26 March 2012 counsel sends a further disclosure letter to the Crown Attorney's office again requesting the breath room portion of the station DVD, the breath technician's complete notes, the notes of several officers who were involved in the Applicant's detention as well as training materials and calibration logs.

[16] On 16 April 2012 counsel attends on the sixth court date. Ms. Mackett is in court and the issue of disclosure is discussed at some length. No additional disclosure is provided and the matter is adjourned to 7 May 2012.

[17] On 23 April 2012 another disclosure letter is sent to the Crown Attorney's office again requesting the breath room portion of the station DVD, the breath technician's complete notes, and notes of several officers who were involved in the Applicant's detention as well as training materials and calibration logs.

[18] On 7 May 2012 counsel attends for the seventh court date. Mr. Mass for the applicant states:

As much as I'd like to set a trial date, we're simply not in a position to do so without that disclosure. We've written several times to the Crowns' office about it, they're aware of what's missing.

[19] The matter is further adjourned to 28 May 2012.

[20] On 7 May 2012 a disclosure letter is yet again sent to the Crown Attorney's office including the breath room portion of the station DVD, the breath technician's complete notes, and the notes of several officers who were involved in the applicant's detention as well as training materials and calibration logs.

[21] On 8 May 2012 Ms. Mackett replies in writing on behalf of the Crown stating, in part:

Thank you for identical letters dated March 5 (faxed twice), March 27, March 28, April 23, and May 7, 2012. I can appreciate that some items are outstanding and we have made requests to the police. I too am surprised disclosure is not complete for items which are properly disclosure. (Emphasis added)

[22] On 28 May 2012, the eighth court date, paper and DVD disclosure is provided and counsel for the applicant requests an opportunity to review the DVD's and states:

[ because w ]e've had some issues with some of the DVD's not working and I don't know which one this is, whether it's the breath room or when he was taken to the second station.

[23] The matter was then adjourned to June 12, 2012.

[24] On 28 May 2012 a disclosure letter is sent to the Crown Attorney's office including notes of several officers who were involved in the applicant's detention as well as training materials, calibration logs and a DVD of the applicant at the second police station where he was detained.

[25] On 12 June 2012, the ninth court date, a trial dates are set for 18 & 19 March 2013.

[26] On 29 June 2012 a further disclosure letter is sent to the Crown again requesting notes of several officers who were involved in the Applicant's detention and a DVD of the applicant while in detention at the second police station where he was detained.

[27] On 23, 30 August, 18, 20 September and 29 November 2012 the Crown's office sends letters to the applicant's counsel regarding disclosure issues.

[28] On 23 July and 20 September & 13 November 2012 further letters are sent by the applicant's counsel regarding disclosure.

2: Submissions

The Applicant's Submission on Delay

[29] The applicant submits that the combination of Crown and institutional delay in this case totals fifteen months and ten days.

[30] The applicant allocates approximately six months and four days to Crown delay and approximately nine months and six days to institutional delay.

[31] The applicant further submits that the lack of diligence by the Crown in providing initial disclosure aggravated the resultant institutional delay in this proceeding.

The Applicant's Submission on Prejudice

[32] The applicant's submission is that he retained counsel five days after he was charged and at all times proceeded in a diligent and expeditious manner. He submits that he took no direct or indirect steps to delay the matter and that he has been anxious to move his matter forward.

[33] The applicant submits that he has suffered actual prejudice, both emotional stress and financial consequences.

[34] The applicant submits that he has suffered "huge" financial expense to pay counsel to assert his Charter rights, exacerbated by his loss of employment for a "few" months.

The Crown's Submission on Delay

[35] The Crown submits that after subtracting a neutral intake period of approximately 3 months, a neutral preparatory period of approximately two months, and a period of approximately two and one-half months (78 days) during which defence counsel declined to set a trial date despite having received substantial disclosure, the total Crown and institutional delay in this case is approximately eight months and twenty-five days.

The Crown's Submission on Prejudice

[36] In the Crown's submission, the prejudice caused to the applicant as a result of delay is minimal. The Crown submits that the applicant's liberty interests have not been affected, as he was released on a promise to appear on the day of his arrest and he appeared at every appearance by counsel, and not in person. The stresses and aggravations cited by the applicant are typical of the kinds of prejudice that flow from the charges themselves, and from constitutionally acceptable amounts of delay in bringing a matter such as this to trial.

3: The Legal Framework

[37] The law with respect to section 11(b) is found in R. v. Morin (1992). The factors to consider are:

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

[38] The manner in which trial judges should address the weighing of the Morin factors was very thoroughly addressed in the decision by Justice Michael Code in the Superior Court of Justice in this province, R. v. Lahiry 2011 ONSC 6780, cited with approval in the Superior Court of Justice by Justice Ian MacDonnell in R. v. Beteta-Amaya [2011] O.J. No. 5136 and in the Ontario Court of Appeal by Madam Justice Janet Simmons on 12 January 2012 in R. v. Tran (2012) ONCA 18.

[39] Justice Code has specifically clarified a particular area of this legal framework, the proper calculation of systemic or institutional delay. In the four cases under appeal before Justice Code, the trial judges characterized the entire period from the set date appearance to the trial date as systemic or institutional delay. As stated by Justice Code, in paragraph 2 of his decision in Lahiry:

The one error that is common to all four appeals is the proper calculation of institutional delay. In all four cases, the entire period from the set date appearance to the trial date was automatically characterized as systemic or institutional delay, without further analysis. This is not a correct approach to calculating this particular cause of delay, given that institutional delay only "starts to run when the parties are ready for trial but the system cannot accommodate them", as Sopinka J. put it in R. v. Morin (1992), 71 C.C.C. (3d) 1 at p. 18 (S.C.C.). The Court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were ready to try the case. (Emphasis added)

3.1: The Relevant Principles as they apply to the case at bar

3.1(a): The Overall Period of Delay

[40] The overall period of delay is calculated from the date the information is sworn to the date the trial is completed. (See R. v. Kalanj.) The information was sworn on 17 November 2011 and the trial is now scheduled to proceed on 18 March 2012, an overall period of just over sixteen months. As stated by Justice Code, in Lahiry this first factor is simply a mechanism for weeding out frivolous applications. It is only necessary to go on and consider the other three factors if the overall delay is of sufficient length to raise an issue as to its reasonableness. (See R. v. Askov and R. v. Morin, supra.) I am satisfied that because of the passage of sixteen months, the delay in this case requires further scrutiny.

3.1(b): The Neutral Intake Period

[41] In my consideration of the reasons for the delay, I must allow for an appropriate intake period. An acceptable intake period will vary depending on the nature and complexity of the case. Neutral intake periods usually are considered to include the time needed to arrange bail, retain counsel, prepare and review disclosure, write follow-up requests, and prepare for judicial pre-trials. In Morin, two months was deemed appropriate to complete all normal intake procedures, given the simplicity of the case.

[42] Here, the applicant asserts that because counsel was retained on 14 November 2011, he was ready to proceed within a week of being arrested and charged. He therefore asserts that the failure of the Crown to place the charging information before the court until 9 January 2012, or to meet its disclosure obligation until 28 May 2012, is all "unreasonable" and the entire time-period from a "notional" reasonable first appearance on 23 November 2011 (the date on which the applicant submits he should have had his first court date) and 28 May 2012 a period of approximately six months and four days should all be calculated as "Crown" delay.

[43] The Crown's reply is that this analysis does not meet the test of reasonableness.

[44] The Crown submits that the period from the arrest and release to the first court appearance, a period of two months, is neutral intake, based on the time of year, and the case law in similar cases.

[45] The Crown further submits that the period from 9 January to 6 February 2012, a further month, should be classified, again as neutral intake for purposes of making full and complete disclosure in this case.

[46] On these points, I agree with the Crown. I am of the view that these first approximately three months are a reasonable intake period and therefore in my view the appropriate neutral intake period in this case is from the arrest and release on 9 November 2011 to 6 February 2012, a period of just short of three months.

3.1(c): The Time from the Intake Period to the Setting Down the Case for Trial

[47] The second period of delay was from 6 February 2012 until 12 June 2012, the date the target trial date of 18 March 2012, was set.

[48] The Crown submission is that it is properly Crown delay from 6 February to 26 March 2012, a period of forty-nine days, because of a failure to complete the Crown disclosure obligation.

[49] The Crown then submits that the balance of time until the actual trial date is set on 12 June 2012 (26 March to 12 June 2012), a period of just over three and one-half months or seventy-eight days should all be characterized as delay occasioned by the actions of the defence.

[50] The defence challenges the Crowns position for this time period in its entirety, for the reason that this period, at least until 28 May 2012, when significant and material disclosure was made, was all due to the Crown's inability to provide substantial disclosure despite numerous requests to do so.

[51] In support of this argument regarding disclosure, the defence relies on the decisions of R. v. Armstrong, [2005] O.J. No. 5735 (S.C.J.), R. v. Panko, 2007 ONCJ 212, and R. v. Farry, [2010] O.J. No. 1977 (S.C.J.). In R. v. Armstrong, Justice Susan Himel states at paragraph 24:

24 The Supreme Court of Canada has held that the right to make full answer and defence is constitutionally entrenched in s. 7 and s. 11(b) of the Charter. In the seminal case on the obligations of the prosecution to disclose, R. v. Stinchcombe, the Court entrenched the right of an accused to disclosure as necessarily incidental to the right to make full answer and defence. The Court held that the Crown has an ethical and constitutional obligation to the defence to disclose all information in its possession or control unless the information in question is clearly irrelevant or protected by a recognized form of privilege. The Crown must disclose relevant material whether it is inculpatory or exculpatory and whether it intends to introduce the evidence or not. The prosecution need not disclose information which is not within its control. The Crown has a duty to obtain from the police and the police have a corresponding duty to provide for the Crown all relevant information and material concerning the case: See R. v. T.(L.A.) (1994), 84 C.C.C. (3d) 90 (Ont. C.A.). The Crown is under a continuing duty to disclose all relevant information including evidence which could affect the credibility of a witness. Cases decided since R. v. Stinchcombe have examined the scope of the disclosure obligation on the Crown.

[52] In Lahiry, supra, the Crown points out, Justice Code, cautions against a too-rigid view of this disclosure requirement, where the disclosure obligation is complex and voluminous, in calculating whether to attribute delay to the Crown or the defence, at paragraphs 111 to 114:

111 Most recently, in R. v. Schertzer et al, supra at paras. 93 and 94, the Court dealt with a case where large amounts of disclosure was still outstanding and counsel, nevertheless, proceeded to set a date for the preliminary inquiry. The court commended counsel for "acting responsibly in accordance with this court's directions". The Court held that setting "a target date for the preliminary inquiry, even though more disclosure was anticipated, is consistent with this court's direction" in M.(N.N.) and in Kovacs-Tatar.

112 Crown counsel explained on the s. 11(b) Motion that the main reason for asking the toxicologist to revise his report was "to remove some of the information that is not relevant to this case, the marijuana, because the Crown cannot prove any drugs being in Mr. Davidson's system". In his submissions on the s. 11(b) Motion, defence counsel never disputed this explanation for the need to make revisions to the report. He simply asserted that the toxicology report is relevant to "how impairment is going to be proved" and that it was, therefore, "of essential importance and it will be difficult to assess the implications for the length of the nature of the trial without it". Mr. Wright made similar submissions on the appeal, arguing that the defence is entitled to delay setting a date for trial as long as the outstanding disclosure is "of real significance".

113 I am not satisfied that the revisions to the report were "of real significance", given the Crown's uncontradicted assertion that the main reason for the revisions was to remove inflammatory and irrelevant references to intoxication by marijuana (an offence which had not been charged in the particularized Information). Mr. Steinberg must have known the reasons for the revisions to the report, given that the decision to request it emerged out of his pre-trial meeting with the Crown. If he was in any doubt as to the apparently benign reasons for seeking a revised report he could have made inquiries. There was simply no justification for using this minor piece of outstanding disclosure as a device for causing more delay.

114 In any event, as I read the above line of binding authority, outstanding disclosure can often be significant and it still cannot be used to hold up the setting of dates for trial or preliminary inquiry. Sophisticated forensic testing and ongoing investigative steps often take time and they cannot be allowed to hold the process hostage by preventing the setting of timely trial dates. It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages. This is simply common sense. Lawyers can generally adapt and adjust their trial strategy to ongoing disclosure, received from the Crown while awaiting trial. If the Crown is not being diligent in providing disclosure sufficiently in advance of the trial date, then setting confirmation dates and target dates for trial will solve the problem. By bringing the case back to court, a month or two before the target trial date, defence counsel can create a check to prevent dilatory Crown disclosure practices. If the Crown has not completed all important disclosure by the confirmation date, the defence can then adjourn the target trial date and the Crown's actions will have caused the delay.

[53] On this contested period of time I have concluded that the defence submissions must prevail. In my view, the facts in this case, though clearly beyond the "run of the mill" drinking and driving case in terms of trial issues, are not comparable to Schertzer. Moreover, the defence was very diligent in pursuing disclosure in this relatively straight-forward case, from the moment they were on the record. The record discloses that the defence had to again, and again request the Crown to provide basic disclosure, most of which should have been available from the outset. Time after time, the prosecution was not able to provide the disclosure that had been requested. This was even commented upon by Crown counsel Mackett in her letter to the defence dated 8 May 2012, which is found as Exhibit H to the Affidavit of Olivia Facoetti, dated 3 January 2013, and found at Tab 14 of the applicants Record:

Thank you for identical letters dated March 5 (faxed twice), March 27, March 28, April 23, and May 7, 2012. I can appreciate that some items are outstanding and we have made requests to the police. I too am surprised disclosure is not complete for items which are properly disclosure.

[54] In my view, on the facts before me in this case, the Crown failed to make timely substantial disclosure of potential evidence that was material and should have been disclosed at the outset. I therefore attribute the time from 6 February to 28 May, a period of 111 days or just over three and one-half months to Crown delay, with the balance of fifteen days, to the date that the target trial date was set, 12 June 2012, attributable to the defence. For this brief period I agree with the Crown's submission that defence could have set the date on 28 May, and would have retained ample time to follow up with further disclosure requests if required.

3.1(d): Trial Preparation After The Trial Date is Set

[55] Finally, the Crown submits that the time between the setting of the trial date, 12 June 2012 to the trial date of 18 March 2013, a period of nine months and six days, should be apportioned as seven months and six days as institutional, and two months as neutral, for the purpose of reasonable trial preparation.

[56] Authority for the Crown's position is found in Lahiry, supra at paragraphs 25 to 37, in which, at paragraphs 35 to 37, Justice Code concludes:

[35] In the case at bar, the Crown conceded, erroneously, that the entire period from setting the date until the trial proceeded was all systemic delay. The court is not bound by the Crown's erroneous concessions, especially in constitutional litigation. On occasion, in Charter cases, the Supreme Court of Canada has gone so far as to appoint amicus or to rely on intervenors to argue against the Crown's concessions. See Kent Roach, "Not just the Government's Lawyer: The Attorney General as Defender of the Rule of Law" (2006), 31 Queen's L.J. 598; Grant Huscroft, "Reconciling Duty and Discretion: The Attorney General in the Charter Era" (2009), 34 Queen's L.J. 773.

[36] In any event, in this case the trial judge properly insisted that defence counsel file his instructing letter to his agent as an exhibit. As the trial judge put it, "it would have been nice to know what those [earlier available] dates were". As a result, it was clear from the evidentiary record on the s. 11(b) motion that the earliest dates on which counsel could accommodate this new case in his calendar were in late April or early May of 2010. This would also allow counsel time to properly prepare the case for trial and to prepare his s. 11(b) motion.

[37] As a result, the period of systemic delay in the case at bar, at best, ran from April 23, 2010 until January 28, 2011. In other words, this period of delay was just over nine months rather than just under 11 months. The remaining one-month and 20-day period, from March 3 until April 23, 2010, was part of the inherent time requirements of the case as counsel needed time to accommodate a new case in his calendar and needed time to prepare it. This period of just less than two months carries neutral weight in the s. 11(b) analysis.

[57] There was no evidence before me that defence counsel was not ready to proceed when the trial date was set on 12 June 2012. Moreover, I have already sided with the Crown on the intake period as being roughly three months, as reasonable, to accommodate trial preparation factors.

[58] However, in all the circumstances, I must, on this point, side with the Crown. I am prepared to accept, as submitted by the Crown in this case, that review of the disclosure and some trial preparation must still be done, after the trial date is set, on a case such as this. Accordingly, based on the authority of Lahiry, supra and the reasoning in the Ontario Court of Appeal in Tran, 2012 ONCA 18, at paragraphs 38 to 40, I find that that a further period of two months should be treated as neutral for the purposes of necessary defence trial preparation. In my view, I therefore, as requested by the Crown, treat seven months and six days of this time as institutional delay.

3.1(e): Total Delay

[59] To summarize, I find that the Crown delay in this proceeding totalled approximately 111 days (see paragraph 54 above). I further find that the Institutional delay after the trial date was set in this case was approximately seven months and six days, or 216 days (See paragraph 58 above). I thus find that the total delay in this proceeding that attracts the consideration of a stay for unreasonableness is just less than 11 months.

[60] Although I disagree with the Crown's calculation of the total delay, I do accept her submission to the court that what are often referred to as the Morin guidelines of "eight to ten" months, as stated by Justice Sopinka in his judgment should not be treated as a "strict" limitation period and should be subject to the observations of Justice Code in Lahiry, at paragraphs 159 and 160:

[159] Modern drinking and driving trials, such as the cases under appeal, bear no resemblance to Morin's Case. In Lahiry, a full day was set aside for a one witness trial and Motion. In Davidson, two full days were set aside for the trial and a further half day was set aside for the Motion. In Carreira, four hours was scheduled for trial but then it expanded and ended up taking between two and three full days. Four hours was scheduled for the Shelson trial.

[160] The Supreme Court of Canada was setting standards for short, efficient, high volume summary trials in Morin's Case. The four cases under appeal do not fit this description. There is a good argument that if different standards are to be imposed today, then they must take into account the fact that these trials are no longer short and simple ones like Morin's Case. It should also be noted that what counsel refer to as "strict" enforcement of the Morin guideline seems to mean that whenever systemic delays exceed eight months there should generally be a stay of proceedings, even in cases like these appeals where there is little prejudice, and irregardless [sic] of any societal interest in a trial on the merits. This kind of approach, if I have understood it correctly, is not really a "strict" application of the Morin standards. Rather, it is a completely new and very simple approach that involves a significant re-writing of the more subtle and complex methodology that emerged out of the Smith, Askov, and Morin trilogy some twenty years ago.

[61] In a like manner, this case is scheduled for two full days of trial, and at the trial, the applicant, based upon their trial application and factum will be raising allegation of Charter 8, 9 & 10(b) breaches, including the allegation of an "overhold" of some nine hours. These issues will require significant evidence and argument and more court time than many drinking and driving cases that are tried in this court.

3.2: Findings on Prejudice & Unreasonable Delay

[62] In R. v. Godin 2009 SCC 26, paragraphs 29 to 32, Justice Thomas Cromwell reviewed how trial judges should evaluate the issue of prejudice as it intersects with trial delay, and supported the trial judge's view in that case that actual prejudice had taken place, where the over-all delay of 30 months in a complex sexual assault case had contributed to a number of types of actual prejudice:

29 The Court of Appeal disagreed with the trial judge's analysis of prejudice and found that any prejudice to the accused's interest in a fair trial was too speculative to be considered. Partly on this basis, the Court of Appeal found that the delay was not unreasonable. I respectfully disagree. In light of the length of the delay, of the Crown's failure to explain the multiple delays adequately, and of the prejudice to the accused's liberty and security interests - if not also to his interest in a fair trial - the delay in this case was unreasonable.

30 Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

31 The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn". Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

32 This approach was reflected in the trial judge's reasons, where he wrote that the delay in this case was "well beyond any reasonable interpretation of the [Morin] guidelines" (2007 CarswellOnt 5364, at para. 20) and that the appellant had suffered prejudice as a result. The judge referred specifically to the fact that the charges had been hanging over the appellant's head for a long time and that he was subject to "fairly strict" bail conditions (para. 22).

[63] An argument for additional prejudice resulting from the particular facts of the delay in this case is predicated on the interaction of the delay of approximately 11 months in bringing this case to trial coupled with Mr. De Chiara's temporary loss of employment in January of 2012 for approximately two months, the large cost of his paid legal fees and the emotional stress of responding to the charges.

[64] On the issue of prejudice, herein, I find that the length of the delay in this case is not inherently prejudicial. I further cannot conclude that the description of the costs incurred in defending the case nor the temporary loss of employment take it beyond the facts that unfortunately often arise simply from the initiation of a proceeding, as opposed to trial fairness factors or the personal circumstances of the applicant in the community as a result of the delay.

[65] It is clear from the reasoning in Godin that there will be cases in which "implied" and "actual" prejudice taken into consideration along with other fair trial factors and personal individual factors in the community work a hardship for an accused that require a stay, despite society's well-founded interest in the resolution of criminal prosecutions with a trial on the merits.

[66] However, in my view, this is not one of those cases.

[67] The case-at-bar is not an overly complex one, and the delay in this case does not give rise to the same type of "memory loss" or material "disappearance of evidence" that is referred to in the much more complex proceeding and longer delay reviewed in Schertzer and other such cases cited by the defence.

[68] I have reluctantly concluded that the hardship that Mr. De Chiara has experienced can properly be characterized as arising from the initiation of proceedings rather than from the length of the delay in bringing the matter to trial.

[69] Moreover, the overall delay of approximately 11 months in this case, in my view, is not unreasonable by itself.

[70] As mentioned above, a trial on the merits also serves the public interest, as confirmed by the case law cited by the Crown.

4: Ruling

[71] In the result, I am dismissing this application.

[72] I am therefore asking counsel to be ready to conduct the trial proper for this matter on the two days we have set aside on 18 and 19 March 2013.

Released: 14 March 2013

Signed: "Justice Paul H. Reinhardt"