Court File and Parties
Court File No.: Toronto
Ontario Court of Justice
Between:
Her Majesty the Queen
Ms. E. Bellerose for the Crown/Respondent
— And —
Minh Son Le
Mr. R. Silverstein for the Accused/Applicant
Heard: January 16, 2013
Decision
NAKATSURU J.:
Introduction
[1] The applicant is charged with the unlawful production of marijuana and possession of marijuana for the purpose of trafficking. He brings an application pursuant to s. 24(1) of the Charter alleging that his right to a trial within a reasonable time under s. 11(b) has been infringed.
[2] For the following reasons, I grant the application.
Analysis
[3] The factors to be considered on an application such as this are set out in the case of R. v. Morin (1992), 71 C.C.C. (3d) 1 at 13 (S.C.C.). These principles have more recently been considered in two decisions: see R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.)
[4] I will now turn to those factors.
A. The Length of the Delay
[5] It is not disputed that the delay in this case warrants examination by me.
B. Waiver
[6] Upon review of the record of proceedings and the application record, there have been no explicit waivers of s. 11(b). The Crown has argued that there have been implied waivers in this case: see Lahiry, supra, at para. 6. In my view, there have been no implied waivers. The delay pointed to by the Crown alleging implied waiver is better assessed under the factor reasons for the delay. In other words, rather than an implicit waiver, I find that the time period in question was delay caused by the conduct of the defence.
C. The Reasons for the Delay
[7] There is no agreement between the parties with respect to the reasons for the delay in the case at bar and how the time periods should be attributed. The applicant submits that Crown and institutional delay amounts to some 18 to 21.5 months. The Crown replies that the institutional delay is a total of 10 to 12 months. The Crown does not concede any Crown delay. Alternatively, if there is any, it is a month at the most.
[8] At this point, it is necessary to scrutinize in some detail what happened in the history of the proceedings based upon the record before me.
Chronology
November 9, 2010: The information was sworn. The applicant was released on bail.
December 14, 2010: Counsel Ms. D. Pledge was retained by the applicant. By message she requested January 19th with a bench warrant with discretion in order to conduct Crown pre-trial.
January 19, 2011: Ms. Pledge sought disclosure. None was available. The Crown suggested a three week remand for disclosure. Therefore February 14th was picked as a return date.
February 14, 2011: Ms. Pledge appeared and filed a designation. Initial disclosure was provided. Counsel asked for March 9th and stated a Crown pre-trial would be conducted in the interim.
March 9, 2011: Ms. Pledge attended and stated she attended the trial coordinator's office and got a judicial pre-trial date of April 11. The matter was remanded to that date.
April 11, 2011: The Crown stated that a judicial pre-trial had been scheduled for the morning but the search warrant was not available. He stated that an appointment was scheduled for the next day for the affiant to vet the search warrant information. Crown stated hopefully by the end of the week, it would be provided. A new judicial pre-trial was scheduled for May 10. Ms. Pledge agreed to the date.
May 10, 2011: Ms. I. Grant appeared for the applicant who had changed counsel. She inquired if disclosure had been given to counsel. Crown stated that he did not have the brief but there had been a judicial pre-trial conducted on April 11th. Ms. Grant asked for May 30th and stated she would get the file from previous counsel and get the case going. Ms. Pledge was removed from record.
May 30, 2011: Ms. Grant stated that the applicant had discharged previous counsel and that they recently received the file. A pre-trial with the Crown needed to be done so June 22 was asked for.
June 22, 2011: Ms. Grant appeared and stated a Crown pre-trial had been conducted. Given that the case would take more than a day a judicial pre-trial for July 14th was set. Ms. Grant stated that this was the first date offered by the trial coordinator.
July 14, 2011: Mr. Silverstein attended. He stated that a judicial pre-trial had been conducted. The Crown had made an offer to resolve the charges. The defence therefore asked for August 2 for the case to be spoken to.
August 2, 2011: Ms. Grant attended. The Crown stated that the defence wanted to set a trial date. She was aware that a judicial pre-trial was conducted on July 14 where estimates for a preliminary inquiry were discussed. She stated that a further judicial pre-trial was required in this case. She stated she understood that counsel was no longer going to challenge the search warrant but they still required another judicial pre-trial. Ms. Grant stated if that was the procedure of the court, she would follow it. Therefore a new judicial pre-trial date of August 24 was set.
August 24, 2011: Ms. Grant attended. The Crown stated that a second judicial pre-trial was conducted that morning. He states that an earlier judicial pre-trial had been conducted but a possible resolution was offered and as a result there was a return in August. He stated that defence instructions had changed. They were seeking a trial as opposed to a preliminary inquiry therefore a new judicial pre-trial was required. Both parties suggested June 18 and 19, 2012 for trial. An election was made. Earlier dates commencing June 11th were offered by the court but defence counsel was not available on those dates.
June 15, 2012: The Crown sought an adjournment of the trial date. A material witness had injured himself. The earliest dates they could get was March 25 and 26, 2013. Mr. Silverstein stated his position. He stated he was sympathetic to the officer. He admitted the officer was an essential component of the Crown's case. He stated he hoped that the officer could get here on crutches since lots of people with leg injuries could move around. But he was advised by the Crown that this was a serious injury that required surgery. As a result, the defence stated he could not very well oppose it. Mr. Silverstein added "But obviously I'm dismayed at the need to adjourn it. We're anxious to move the matter along. My client's been on a significant and strict bail for quite some period of time." The earliest dates available were the March dates. He stated that he and Ms. Grant were available as early as next Monday. Both were ready to go and prepared. They could do the trial later the next week, and, as well, the latter part of June, July, August, and September. However, the court did not have earlier dates. Crown stated that in the adjournment materials it was indicated that the witness would be back in October. Crown also could have done this trial earlier. But the first dates available by the court were March 25 and 26. The witness already had surgery but required rehabilitation to walk. The Crown indicated it was a serious injury where he fell at a grow operation. The Court granted the adjournment and noted defence counsel's comments. Other matters were addressed and counsel both returned. Crown and defence had discussion about loosening up the bail. The Crown consented. The house arrest condition was deleted. The Crown consented to the Applicant entering his own recognizance with the same conditions except the house arrest condition was deleted. New trial dates were set for March 25 and 26th.
[9] In my opinion, from the swearing of the information from November 9, 2010 to March 9, 2011, a period of 4 months, this should be attributed to intake. Of course, this is far from the model of efficiency. This is a case about a marijuana grow operation where upon the execution of a search warrant, the bulk of the evidence was found. The investigation was essentially complete on the date the warrant was executed. There is no reason why initial disclosure, given on February 14, 2011, should have taken 3 months and 3 court appearances to be provided. Furthermore, given the amount of time and court appearances that had passed, there is no reason why full disclosure could not have been completed by that time. I make this finding based upon the experience that I have had in this jurisdiction and the nature of the case as indicated in the record. Ms. Grant states in her affidavit that full disclosure was no more than 100 pages. Of that, some 40 pages would have been the information to obtain. She further avers that this was not a factually complex case and would only require a few days of preparation. This averment was not challenged by the Crown and I am prepared to accept it. All that being said, I am nonetheless willing to attribute the 4 month period to intake. I do not accept the defence submission that only 2 months should be attributed to intake.
[10] At the risk of appearing immodest, I would repeat comments I made in R. v. Shea, [2012] O.J. No. 2489 at para. 12:
In my view, to the extent possible, a s. 11(b) analysis should avoid arbitrary allocations of time. The actual history of the proceedings should be closely scrutinized from the transcripts and other evidence filed on the application to best determine how time periods should be characterized. In other words, the assessment should be based upon on-the-ground reality. To illustrate, the actual length of the initial intake period will depend upon the return date(s) requested by the defence; a date often chosen to convenience defence counsel when he/she is next in the courthouse. Thus, frequently, there is quite a variable range for intake periods for similar cases. Of course, if the delay is so long that it becomes unreasonable to describe it as intake, a period of delay may be attributed to the actions of the parties.
[11] In this case, at the court appearances involved, defence counsel did not take any objection to the pace of proceedings. From all accounts, it appeared the disclosure process was proceeding normally. On December 14th neither she nor the applicant appeared; rather a message simply adjourning the case was sent to court. It was at counsel's request that the matter was adjourned over one month to January 19, 2011. On that date, when disclosure was not ready, she simply acquiesced to the Crown's suggestion that a three week remand was required for disclosure. In my opinion, I am not prepared to accede the defence position that neutral intake for disclosure should be limited to 2 months. The history of proceedings leads me to conclude that this 4 month period should be treated as neutral intake.
[12] Thereafter, the Crown position cannot be accepted. The defence rightfully proceeded to have a Crown pre-trial and scheduled a judicial pre-trial: see R. v. Lahiry, supra, at paras. 109 to 111. However, the failure to provide timely disclosure became the reason for the delay after this 4 month intake period. In my view, the information to obtain should have been vetted and disclosed to the defence before the end of this 4 month period. There is no excuse for why it was not. No explanation is apparent on the record. The Crown does not offer one on this application.
[13] In this jurisdiction, it is standard practice that search warrant informations are routinely unsealed by the federal Crown in an ex parte application brought in the federal plea court. They are expeditiously dealt with by the presiding justice in court. All that is presented is a draft order which follows a standard format. To unseal the information to obtain should require little or no time at all. Furthermore, laudably, the Crown has by practice undertaken to do this on its own initiative in order to expedite this whole process. Any editing or vetting that is required should follow promptly after the unsealing of the information to obtain.
[14] In a case such as this, it would be apparent to all that the information to obtain would be vital disclosure to the defence. The evidence was all obtained pursuant to the search warrant. While the defence cannot insist upon such disclosure before taking the necessary steps in preparation to set a date for a trial or preliminary inquiry, the Crown must ensure that the information to obtain is obtained and vetted in a timely fashion.
[15] This did not happen in this case. Indeed, the judicial pre-trial on April 11, 2011 had to be cancelled as a result. Astonishingly, on April 11th, the Crown advises the court that the appointment for the affiant to come in to vet the search warrant information had been scheduled for the next day. The affiant had not even edited the information to obtain over 5 months from the time of the swearing of the information. A Crown pre-trial had taken place more than a month before. Surely, it would have been obvious that there was a problem in getting timely disclosure of the information to obtain. Nevertheless, the judicial pre-trial had to be cancelled as a result.
[16] If there was a reasonable explanation for the laches, none has been presented on this application. As a result, I am of the view that the period of time March 9, 2011 to May 10, 2011, a period of some 2 months, should be attributed to Crown delay. The information to obtain should have been provided before March 9th when the Crown pre-trial was conducted.
[17] On May 10th, new counsel appeared for the applicant. He discharged his previous counsel. Naturally, this required new counsel to obtain the disclosure, review it, and continue on with the steps required in getting the case ready to set a date for a trial or preliminary inquiry. Thus, from May 10 to June 22, 2011, this period will be attributed to the defence. This is not inherent delay. While change in counsel is not a rare occurrence, this was different from the normal intake requirement to retain counsel. Ms. Pledge had been retained and was on the record for some time. While the applicant is not to be faulted for changing counsel as there are often very good reasons for such a decision, nonetheless, this delay was caused by the applicant and thus will be attributed to him. This is a period of 1 month and 12 days.
[18] In my view, from June 22 to August 2, 2011, this is inherent delay. A judicial pre-trial was conducted on July 24th. The time required to conduct one is treated neutrally. In addition, the defence requested an adjournment to August 2, 2011, in order to have time to consider a Crown offer. This should not be characterized as defence delay. It is a normal part of the pre-trial process that offers are made and time should be afforded to a party to consider it. This is beneficial to the administration of justice and the delay caused by it should be treated neutrally. This is a period of 1 month 11 days.
[19] The period of time from August 2 to August 24, 2011, must be treated as defence delay. An additional judicial pre-trial was required since the defence indicated that it wanted to have a trial in the Ontario Court of Justice rather than a preliminary inquiry. Again, the defence is not to be faulted for this decision. Again, there may be some very good reasons for changing one's election. Nevertheless, the result of this change of mind necessitated another judicial pre-trial. Consequently, this time period of 22 days will be considered defence delay.
[20] On August 24, 2011, the parties set a trial date of June 18 and 19, 2012. The first available date offered by the court was June 11 but the defence was not available. Although it is not a great amount of time, the one week between the first available date and the actual trial date cannot be characterized as institutional delay. That week will be considered neutral delay due to unavailability of counsel for the defence.
[21] Thus, August 24, 2011, to June 11, 2012, consists of 9 months 18 days. The decisions of Lahiry and Tran mandate that some time be attributed to the need for the defence to prepare for trial. I have been presented with evidence on this issue.
[22] The Crown has submitted a calendar of leave dates as to when the police officers were available in September of 2011. There are a number of days which the officers are available in late September but not all of the officers are available on the other days in the month. The Crown argues that Ms. Grant did not specify which dates that she was available in September of 2011 to conduct the trial. The Crown submits that as a result it may well have been that Ms. Grant's available dates in that month may have been days when one or more of the officers were not available. Thus, she argues that it would be fairer to conclude that December was the first date the defence was prepared and available to conduct this trial.
[23] I have to confess that I have some difficulties with the Crown submissions. First of all, the Crown did not request to cross-examine Ms. Grant to ascertain exactly which dates she was available in September. Secondly, the mere fact that officers were on leave does not mean that a trial date could not be set on those dates. Officers can be required to come to court on a leave date if they are available. Furthermore, it may well be that a specific officer's evidence is not necessary or could be dispensed with based upon admissions by the parties. Thirdly, the criticism that the Crown makes in terms of the lack of specificity in the dates Ms. Grant was available in September applies equally to the month of December. Ms. Grant does not specify the dates she was available in December either. It is no fairer to choose December than it is to choose September in that sense.
[24] I also have a more fundamental difficulty with the Crown position. In my view, the need to consider the time required for the defence to prepare for trial in the analysis set out by Code J. in Lahiry does not require the parties to go back in time and attempt to recreate the calendar in minute detail. It must be emphasized that institutionally the court was not able to offer any earlier dates. It is pure fiction to try and determine what would have happened if a certain earlier date could have been available at the point in time of the set date. What the analysis requires is a consideration of the availability and the preparation requirements of the parties in the context of assessing what should properly be considered institutional delay. In other words, one must look at when the parties would have been prepared and ready to conduct the trial. This period of time is subtracted from the overall period of institutional delay and considered as an inherent time requirement of the case. Part of that requires an assessment of the availability of defence counsel. If counsel is not available for an extended period of time, then it cannot legally be said that it is the inability of the court to offer earlier dates that is the reason for the delay during that time. However, it is the first realistic date that counsel is prepared and available that the clock stops ticking on this neutral period of time. No greater scrutiny is required.
[25] This is not a complex case. No Charter arguments are being raised. The validity of the search warrant is not being attacked. There is no need to comply with the notice requirements for such applications as set out in the rules of this court. Two days have been set aside for this trial. Based upon the nature of this case and the affidavit of Ms. Grant, I accept the applicant's submission that 30 days should be treated as the inherent time requirement in this regard.
[26] Therefore for the period of time August 24, 2011, to June 11, 2012, 8 months and 18 days will be treated as institutional delay.
[27] On June 15th, the scheduled trial dates were adjourned due to an unfortunate accident that befell an important Crown witness. The defence does not contest that this adjournment was necessary and that the delay caused by the unavailability of the witness should be treated neutrally. I agree. This adjournment was an instance of an unforeseen and unavoidable event that sometimes sidetracks the progress of a criminal trial. The delay caused by it should be treated neutrally.
[28] However, the parties do not agree when that neutral period should come to an end. The first available trial dates that was offered to the parties were March 25 and 26th, 2013. It is clear to me that the lack of institutional resources is an important factor in delaying this trial. The Crown argues that this period should not run until the police officer was available; that is October 1, 2012. The defence argues that period of institutional delay should commence earlier. It is submitted that the affidavit supporting the adjournment application indicated that the officer would return to work in October. However, it is submitted that he could have been well enough to come to court and testify before that date.
[29] I do have some sympathy for the defence position. Common sense would seem to dictate that an individual may have recovered sufficiently from a leg injury to be well enough to give evidence even before he is fit to return to full duties in the arduous employment as a police officer. That being said, it would simply be speculative of me to find that the officer could have testified before October 1st and exactly how long before that this would have occurred. No evidence has been presented for me to come to any reasoned position why an earlier date would be more appropriate.
[30] As a result, I conclude that from June 18, 2012, to September 30, 2012, this period will be treated neutrally. September 30, 2012, to March 25, 2013, will be treated as a period of institutional delay. This is a period of 5 months 25 days.
[31] In summary, the overall time periods are attributed in the following way:
- Intake/inherent delay: 10 months
- Defence delay: 2 months 4 days
- Crown delay: 2 months
- Institutional delay: 14 months 13 days
[32] Thus, the total operative delay (Crown and institutional delay) in this case is 16 months 13 days. This is about 6 and a half months beyond the guidelines set out in Morin.
D. Prejudice
[33] Both inferred prejudice and actual prejudice are considerations in the assessment of prejudice. In addition to inferred prejudice, the parties can present evidence of actual prejudice or evidence negating prejudice. As stated in Morin, at paras. 63-64:
Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adopted by Lamer J. in Mills, supra, at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence.
Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated. The application of any guideline will be influenced by this factor.
[34] In assessing prejudice, it is only prejudice resulting from the delay that is considered. Forms of prejudice resulting from the fact of being charged are not relevant in the analysis: see R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (Ont. C.A.) at para. 33.
[35] In this case, I find that there is no actual prejudice to the fair trial interests of the applicant. No evidence was presented on this. There were two types of prejudice alleged: one to the security of the person interest and the other to his liberty interest.
[36] I find that there is actual prejudice to the applicant's security of the person. There is an affidavit from the applicant. He was cross-examined on it by the Crown. However, the cross-examination did not undermine his credibility. The cross-examination was very brief and simply went over points already made in the affidavit. Of course, I am not required to accept the assertions made in an affidavit even when it is not undermined in cross-examination or even cross-examined upon at all. However, I am prepared to give weight in this case to the applicant's affidavit given all the circumstances.
[37] The applicant avers that he has found having the charges before the courts for so long to have been very stressful and that he suffers headaches as a result. The delay also has caused considerable strain on his marriage and has resulted in frequent arguments. The children have also been affected. Finally, the applicant has found it distressful that he has been stopped some five times by the police who were checking up on him.
[38] While I cannot say this actual prejudice is enormous given the lack of medical confirmation, I cannot discount it. It is unchallenged and it makes sense to me. Given the passage of time which has been significant, it stands to reason that the stress would increase with the delay in resolution of the case. It stands to reason that he would be subject to more stops by the police with the increased passage of time. It stands to reason that stress would result given that one trial date had to be abruptly adjourned mere days before the trial was set to begin.
[39] All of this is some evidence of actual prejudice. I must emphasize that I find this prejudice as a result of the unreasonable delay and not prejudice stemming from the fact of being charged or going through the normal criminal process. While not a huge burden, in my view, it is real and I am prepared to give weight to it.
[40] The other prejudice is to the applicant's liberty interest. The applicant was initially on a form of house arrest as a condition of his bail. Until June 15th, the applicant was subject to house arrest with the permission he could be out with his surety, his wife's, written permission. He avers he has been working while on house arrest for the past year and a half.
[41] While this is not the most restrictive form of house arrest by any stretch of the imagination, the applicant avers that his wife does not speak English and as a result getting written permission was difficult. The applicant's own English is not very good. He immigrated to Canada from Vietnam in 1992. He avers that as a result he has often been unable to leave the house confident that he would not be charged with failing to comply with his release conditions.
[42] It would be insensitive to dismiss these concerns. When English is not your first language and when you have been raised in a culture different from your own, the inability to easily operate in the community in accordance with the laws and norms expected of its members can often be a significant obstacle. I can readily appreciate how challenging it could be for the applicant and his wife to compose and phrase a written permission to be outside of the home that they would feel confident could pass the scrutiny of a police officer who may inspect it. It may not always be easy to get the help of others who could assist with this task. It would be normal for someone in the applicant's shoes to be anxious when outside of the home with written permission. It is entirely foreseeable the applicant would simply not take advantage of this exception given his fears.
[43] The applicant was never cross-examined on this. The averment stands unchallenged. It is a reasonable averment. I am prepared to give weight to it. Thus, I find that there has been a restriction on his liberty due to this house arrest condition.
[44] The Crown argues that the applicant has not brought the prejudice to the attention of the Crown or the court and therefore it should be discounted. She argues that he has done nothing to alleviate the prejudice he claims by seeking a bail variation.
[45] First of all, he did seek to vary his bail once his initial trial date was adjourned. The Crown then consented to the variation.
[46] Secondly, it would have been apparent to everyone that the house arrest bail was restrictive. While it permitted him to be outside of the residence with written permission of his surety, it was not a carte blanche. The justice of the peace could not have intended that to be the case nor did the applicant quite rightly interpret the condition as such. Therefore, he would have had to obtain written permission for each specific occasion that he was outside of his residence. Indeed, had the Crown felt it was not that onerous, it would have been pointless for the Crown to have agreed to lessen the conditions of his bail when the case got delayed. Obviously the Crown on the adjournment application did not feel that way.
[47] This house arrest condition is apparent on the face of the bail. The parties would have been aware that the applicant required the services of a Vietnamese interpreter. This is not similar to a case where some unknown or unforeseen prejudice has never been brought to the attention of the court.
[48] Finally, I fully realize that since June 15, 2012, this prejudice has been lifted. However, by that time, he had been subject to this prejudice for over 10 months of operative delay and a year and a half since his arrest. The fact he no longer suffers this prejudice cannot discount the prejudice he has suffered to that point in time.
[49] On this record, I therefore find that the applicant has proven that he has suffered actual prejudice. A prejudice to his liberty interest and ongoing prejudice to his security of the person interest. There is nothing to suggest in this case that the applicant wanted to delay his trial or has benefited from the delay. He chose to be tried without having a preliminary inquiry and in the Ontario Court of Justice. The trial has been estimated to take only two days. I can infer from this that the counsel have narrowed the issues and are prepared to make appropriate concessions to expedite matters. When the first trial date got adjourned, defence counsel forcefully voiced his concerns about the delay. Indeed, defence counsel initially tried to save the original trial dates to see if the officer could make it to court on crutches. The applicant now brings this s. 11(b) application. He did not do so before the first trial date when the operative delay was already beyond the Morin guidelines. Nothing in the record suggests to me that this application is being brought for tactical reasons to avoid a trial on the merits.
[50] Furthermore, I am prepared to infer some prejudice in this case. Here, the operative delay is more than 50 percent beyond the guidelines. It is lengthy enough that some inferred prejudice has been established.
[51] As a result, I make the finding of prejudice in the case at bar.
E. Balancing Societal Interests and Conclusion
[52] These offences are serious. These are indictable offences. The production of marijuana has many known adverse consequences including the health and safety of those who may reside proximate to the location of its production. Society has an interest in seeing such charges tried on their merits. As the seriousness of the offences increases, the societal interest in seeing the charges brought to trial increases: see R. v. Kovacs-Tatar, supra, at para. 58; R. v. Steele (2012), 2012 ONCA 383, 288 C.C.C. (3d) 255 (Ont. C.A.) at para. 31. That being said, I have little information of the extent of the grow operation involved besides what is in the information to obtain found in the application record. In that, the level of the applicant's involvement at the place which was searched seems to be dropping off materials used in the production of marijuana at the location in question.
[53] In balancing all the factors and considering the societal interest in a trial on the merits, I find that in this case I am satisfied that the interest of the applicant and society in a prompt trial outweighs the interest of society in bringing the accused to trial.
[54] In essence, this trial has been delayed due to an unavoidable injury to a witness. Normally, society's interest in seeing such a trial concluded on its merits would be significant. It is not as if someone can be held responsible for this unfortunate turn of events. However, all the factors must be considered. In this case, when the first trial had to be adjourned, the case was already suffering from Crown and institutional delay of 10 months 18 days, just outside of the Morin guidelines. When a new trial date had to be obtained, one could not be obtained until March 25, 2013, due to the lack of institutional resources. Sufficient attention was not paid to this case in getting an earlier trial date when the case was already on the border of a serious delay problem. The defence counsel voiced his concern on the adjournment application although he could not realistically object to the adjournment given the reason for it. The problem lies not in the adjournment being granted but the inability of the institution to offer a date much closer to October, 2012, when the officer was expected back. No efforts were made to try and fast track or expedite this case. Not even an interim date was offered to see if this case could be accommodated earlier. This is against the backdrop of an alleged offence that goes back to November of 2010, over 2 years ago. This in circumstances where the accused has forgone his right to a trial in the Superior Court and elected to have his trial more quickly in the Ontario Court of Justice. I note the operative delay in this case approaches the outer guideline of 18 months of the Morin guidelines had the accused elected to have the full panoply of procedures in both levels of courts.
[55] In this context, I have found the existence of some prejudice, both inferred and actual. The balancing of all the factors and the interests leads me to the resolution I feel compelled to make. Although it is always with reluctance a judicial stay is ordered, I do so in this case with the firm view that it is the right disposition.
[56] The balancing has satisfied me that a stay of proceedings is warranted. For these reasons, after considering all the factors, I find that the applicant has proven a violation of his s. 11(b) right. The application is granted and the charges are stayed.
Released: February 14, 2013.
Signed: