JUDGMENT

Defence Application for a Stay of Proceedings Pursuant to s. 11(b) of the Charter

Court: Ontario Court of Justice

Parties: Her Majesty the Queen v. Blake Nowak and Michael Sauve

Counsel:

• Mr. J. Bocking for the Crown
• Mr. N. Boxall, Counsel for Mr. Nowak
• Mr. M. Smith, Counsel for Mr. Sauve

Judge: Renaud, J.

Introduction

On January 24, 2013, counsel for Mr. Nowak and Mr. Sauve argued that the rights of their clients pursuant to s. 11(b) of the Charter had been infringed by reason of the delay of over 20 months between accusation and trial, which included suggested Crown delay of 7 months, 11 days, and Institutional delay of 8 months and 12 days, thus requiring a stay of proceedings, as the resulting inherent and actual prejudice to their client's fair trial and liberty interests was such as to render a fair trial impossible.

The Crown countered by submitting that the defence has mischaracterized much of the period of the delay as either the fault of the Crown or the administration of justice when it was, in fact, wholly neutral, and that the evidence of either inherent or actual prejudice is non-existent in the case of Mr. Nowak, and in the case of Mr. Sauve, by reason of the nature of the charges, and not delay, if any such actual prejudice is established.

For the reasons which follow, the Court agrees substantially with the Crown and concludes that s. 11(b) was not breached as the bulk of the delay is the result of a mutual understanding of all counsel to delay the setting of an early trial until exhaustive negotiations on resolution could be held and that there is no impairment to the right to a fair trial and that any actual prejudice is the direct result of the fact that both accused face substantial criminal accusations. On balance, this serious prosecution must be held, in the public interest.

Discussion

By reason of the quality of the legal submissions contained therein, I propose to follow the Factum filed by Mr. Boxall as the foundation for the structure of my judgment.

The Need for an Inquiry as to the Apparently Unreasonable Delay

Accordingly, I adopt as my own the comments consigned at paragraphs 3, 4, and 5 of the Factum of December 24, 2012. In particular, I agree that the delay to date fully justifies an inquiry in that the Record is devoid of any obvious and objective waiver or indication that any precise time period is considered by all parties to be neutral. A simple one-paragraph letter from either defence counsel or the Crown would have sufficed, and this Application would not have been necessary or would have been tried far more quickly and with considerable savings in terms of Court time and the industry of counsel.

The Existence of a Waiver

I agree with Mr. Boxall's comments at para. 6 with respect to waiver and his further submissions at para. 12 to 16 to the extent that they do not engage the facts of this case. That being said, in light of Mr. Semenoff's expanded version of facts, this is not a case to hold that there was a waiver, leaving for another day the issue of when an agreement, even if tacit, that a significant time period is to be seen as neutral, ought to be seen as a waiver. To that extent, the Crown's comments consigned at para. 51 and 52 will be discussed under the rubric of the actions of the accused.

Justice Rosenberg wrote the judgment of the Court of Appeal in R. v. W. (A.J.), 2009 ONCA 661, Armstrong and Epstein JJ.A., concurring. At para. 45, the Court reminded us that "... the trial judge erred in attributing the delay to Crown actions or institutional delay; while it was not waived by the defence, it should be considered neutral." This situation or dynamic is engaged in this case as well.

The Morin Categories and the Breakdown of the Reasons Why Delay Was Encountered

I am also in agreement with Mr. Boxall's analysis at para. 7 and will analyze the delays encountered in terms of the categories he has identified. In addition, I note that Laskin J.A. wrote the judgment of the Court in R. v. Pan and Ban, 2012 ONCA 581, on behalf of Feldman and Watt JJ.A. and noted at para. 18: "Section 11(b) of the Charter guarantees an accused the right to a trial within a reasonable period of time. A well-established framework exists for determining whether an accused's s. 11(b) right has been violated. The court must consider and balance four criteria: the length of the delay, waiver of time periods, the explanation for the delay, and prejudice: see R. v. Morin, [1992] 1 S.C.R. 771."

The Inherent Time Requirement Period

Mr. Boxall submitted at para. 18 that the period between August 19, 2011, and November 23, 2011, ought to be analyzed as part of the inherent time requirements. I agree as this prosecution involves a two-accused, multiple count and multiple witness trial which also involves separately charged youthful accused and regard must be had for that situation as well. Mr. Smith, but not Mr. Boxall, added the period between May 30, 2012, to July 4, 2012, at para. 31 of his Factum. I agree with Mr. Smith's concession as the parties agreed to a further judicial pre-trial, as will be discussed later in great detail when discussing the actions of the accused.

Noteworthy as well are these remarks from the case of R. v. Gordon, 2012 ONCA 533: "[2] Of the three months [in issue], one month, at most, could be viewed as institutional delay, although given the genuine public interest in the joint trial of co-accused, we doubt that even that one month could be viewed as institutional delay. The one-month delay was arguably caused by the unavailability of counsel for the co-accused. Adding one month of institutional delay does not affect the s. 11(b) arithmetic to the extent that we would be prepared to interfere with the trial judge's determination that, in all of the circumstances, there was no violation of s. 11(b)." [Emphasis added]

Crown Delay

At para. 18(b) of his helpful materials, Mr. Boxall described the time period between November 23, 2011 and July 4, 2012, as Crown delay and explained his reasoning. With respect, as set out later under the rubric of "actions of the accused", I find that this entire period is neutral as all counsel elected not to set a trial date as they were free to do and, moreover, any real complaint that the pace of the proceedings was such as to cause concern for the s. 11(b) rights of the co-accused emanated from the prosecution. As noted above, I agree as well that Mr. Boxall erred in failing to describe as part of the inherent time requirement the period from May 30, to July 4, 2012, when a further judicial pre-trial was sought and held.

Defence Delay

Mr. Boxall states at para. 18(c) of his Factum that the defence was unavailable for one month, at worst, and that this period ought not to be counted. I tend to agree with Mr. Boxall for the reasons he stated but I disagree, with respect, with his R. v. Lahiry submission. In effect, he allocated no time for preparation and his e-mail of July 1, 2012, suggests that little trial preparation has taken place. Indeed, I disagree with counsel's submission in para. 18(c) that "the Crown has continuously adjourned the matter for a period exceeding 6 months." The submission ought to have read, "at the request of, or with the support of, the defence, the Crown has…"

I pause to note that Mr. Boxall observed at para. 16 that counsel were not to be required to hold themselves perpetually available. In this vein, it is helpful to recall that Justice Rosenberg wrote the judgment of the Court of Appeal in R. v. W. (A.J.), 2009 ONCA 661, Armstrong and Epstein JJ.A., concurring. At para. 32, His Honour wrote: "I am very sympathetic to the position of both the respondent and his counsel. They were ready and anxious to proceed to trial and through no fault of theirs the trial could not proceed. Further, defence counsel should be able to organize their affairs in reliance on schedules set by the court."

The Panel added:

[33] [...] In this case, the delay from June 4 to July 31 is properly considered to be neutral. The system was available to hear the case, but defence counsel, for perfectly valid reasons was not. The reason for the delay from June 4 to July 31 was made clear on the record. That delay was not waived but the result of unavailability of defence counsel, who had been prepared for trial on the original date but quite properly had scheduled other matters in the reasonable assumption that the respondent's case would proceed as scheduled: see R. v. Godin, 2009 SCC 26, at para. 23.

In this instance, I have some concerns that the calendar of defence counsel was not made explicit on July 4, 2012, as opposed to the generic comment that there are dates in the Fall, to address one aspect of the controversy which I review later in greater detail. The above noted passage speaks of counsel seeking a trial – in this case, the goal was a withdrawal of the charges during a significant period when the defence was content, on the record, to let the investigating officer's schedule dictate the pace of the proceedings to a certain extent for a certain portion of the time period.

Institutional Delay

In light of the Record and my findings in respect of the actions of the accused in seeking and agreeing to a much delayed pace of the proceedings, discussed below, I see no reason not to fix the institutional delay in accordance with the Crown's submission at the high end of 9 months, 12 days, as set out at para. 18(iii) of the Factum.

I nevertheless wish to point out some of the guidance I have derived from the case law. Thus, the thoughtful judgment of Regional Senior Justice Hackland in R. v. Jomma, upheld at R. v. Jomma, 2010 ONCA 18, includes these helpful remarks at para. 6 on this subject:

[6] It is important to differentiate between institutional delay and the inherent time requirements of a case. This distinction was recently explained by Gillese J.A. in R. v. Cranston, 2008 ONCA 751, [2008] O.J. No. 4414 (C.A.) at paragraphs 36 and 37:

[36] Institutional or systemic delay starts to run when the parties are ready for trial but the system cannot accommodate them. [Footnote 3 reads: R. v. Morin, [1992] 1 S.C.R. 771, at pages 794-795]. To provide guidance on the approximate permissible scope of institutional delay, the Supreme Court in Morin set out the following guidelines: eight to ten months in the Ontario Court of Justice and six to eight months in the Superior Court of Justice. These are not limitation periods. Rather, they are factors to be weighed in the overall assessment of the reasonableness of the total delay: see R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.), at p. 345, aff'd , [1997] 3 S.C.R. 700.

[37] Institutional delay must be contrasted with the inherent time requirements of a case. The latter concept generally encompasses the time taken at both levels of court to get the case to the point where the parties are ready to set trial dates. It includes the time needed to retain and instruct counsel, conduct bail hearings, undertake administration and paperwork, and comply with disclosure obligations. [Emphasis added]

Breakdown of the Delay

In effect, as noted and as will be discussed below in far greater detail, the only controversy surrounds the period of over 7 months, from the end of the intake on November 23, 2011, when a trial date could have been sought had the defence wished such an option, to May 30, 2012, when a trial date again could have been sought. This option was not pursued as both defence counsel wished to further discuss the file and, more to the point, convince the Crown to withdraw. This intake period and neutral period, as suggested by the Crown at pages 4 and 5, results in a period of delay prior to trial which is well within the Morin guidelines for a simple trial, whatever that may mean today, as discussed ably by Justice Code in Lahiry, 2011 ONSC 6780, and certainly well within the Morin guidelines for a serious trial involving co-accused, multiple accusations and multiple witnesses.

The Serious Nature of the Accusations

It will be helpful to begin by pointing out Mr. Boxall's comment at para. 11 that the charges are serious, "though not overly complex." Mr. Nowak and Mr. Sauve are accused of one count of conspiracy to commit robbery, contrary to s. 465(1)(c) of the Criminal Code, seven counts of robbery, contrary to s. 344, one count of break and enter, contrary to s. 348(1)(b), one count of wearing a disguise, contrary to s. 351, seven counts of uttering a threat contrary to s. 264.1(2), and seven counts of forcible confinements, contrary to s. 279(2), alleged to have occurred on July 17, 2011. To be more precise, the s. 264.1 offences involved death threats and the alleged s. 348 offence is in the nature of a home invasion resulting in significant financial loss but, fortunately, mitigated physical harm limited to a single knife as a weapon of domination, all other things being equal in terms of such violent crimes. A number of these accusations are so serious as to involve maximum penalties of life imprisonment and all other accusations are being tried by indictment.

In the result, the fact that there are two co-accused in this trial drives up the inherent time requirements, so to speak. Gillese J.A. wrote at para. 38 of R. v. Cranston, 2008 ONCA 751, [2008] O.J. No. 4414 (C.A.):

[38] Further, the more complicated the case, the greater the inherent time requirements will be. This case is a complex fraud which involves trying multiple individuals. Both these factors have been recognised as increasing inherent time requirements: see R. v. Horgan (2007), 2007 ONCA 869, 165 C.R.R. (2d) 332 (Ont. C.A.), at para. 22, leave to appeal to S.C.C. refused (2008), , 166 C.R.R. (2d) 374, and R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321 (Ont. C.A.), at para. 38. Complex fraud cases typically require substantial preparation time and court time, as a result of having to review large quantities of complicated financial documents, and interview many witnesses, including experts. Trying multiple individuals may significantly extend the time reasonably required to complete the proceedings as there is the need to co-ordinate the schedules of multiple counsel for intake matters, the preliminary hearing and the trial. [Emphasis added]

In this instance, I repeat that it must be understood that there were two other co-accused, young persons being prosecuted pursuant to the Youth Criminal Justice Act, and this necessarily affected the inherent time requirements as the witnesses could not be expected to testify "back to back", so to speak, assuming the trial time was available.

The Ultimate Balancing

Further, I agree with para. 8 and para. 9 and the need for a balanced approach which requires not just objective time assessments, but equally an evaluation of all sorts of prejudicial consequences that may have befallen the accused persons.

I note as well the guidance in R. v. Kporwodu (2005), 75 O.R. (3d) 190 (C.A.): "Society has a high interest in ensuring that persons charged with [serious] crimes are tried on the merits of the charge. That interest however must be balanced against the prejudice occasioned to the [accused] by reason of the delay.' In balancing these interests in this case, the trial judge did not err in finding that the appellant's s. 11(b) rights were not violated."

In the brief endorsement in R. v. Kugathasan, 2012 ONCA 545, Doherty, Watt and Pepall JJ.A. set aside the stay pursuant to s. 11(b) that was ordered at trial and noted at para. 18:

[18] [...] First of all, the system was able to offer the respondent earlier trial dates. Unfortunately, counsel was not available. The fact that these dates were offered to the defence is some indication of attempts to set an early trial date no doubt in recognition of the fact that the case had been in the system for some time. Second, we do not think a period of four to five months to set a trial date for a two-day trial is inordinate even given the prior history of the case. Certainly, four to five months is not ideal. However, s. 11(b) does not demand that the system operate to that standard. We note Crown counsel's observation that the trial date offered in February 2011 contemplated a trial delay of about half of the delay contemplated when the initial trial date was set in February 2010. [Emphasis added]

R. v. Wong, 2012 ONCA 286, an endorsement of Rosenberg, Armstrong and Juriansz JJ.A., includes these remarks on this question, as made plain at para. 2:

[2] The trial judge classified the entire two periods of delay as neutral. The appellant submits that all or some of the delay should be classified as institutional delay and, if so classified, that the delay to trial would be unreasonable, particularly given the inferred and actual prejudice. We agree with the trial judge's assessment of these time periods. As to the first period, his finding of fact that the preliminary inquiry could not have been finished within the original two-day allotment of time is fatal to the appellant's submission. The fact that the parties were only able to use less than one and a half days of this time, because of other matters in the court, thus was of no consequence. The record shows that efforts were made to find the earliest possible dates to continue the preliminary inquiry. The court and the Crown did not treat this as business as usual but were obviously conscious of the delay. We agree with the trial judge that this court's decision in R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.) [aff'd , [1997] 3 S.C.R. 700] applies in the circumstances. [Emphasis added]

Reasons for the Delay

Explanation for Delay: Is It Largely Unexplained?

In this vein, Justice Rosenberg wrote at para. 49 of R. v. W. (A.J.), 2009 ONCA 661, "There are some important distinguishing features in this case [...] Second, the delay is not 'largely unexplained', and much of it is neutral [...]." By way of contrast, para. 48 sets out the following:

[48] In Godin, 2009 SCC 26, at para. 39, Cromwell J. speaking for the court, summarized his reasons for finding the same length of time to bring a similar case to trial to be unreasonable:

[39] This is not a complex case. A delay of 30 months in bringing it to trial is striking, given that the delay was virtually entirely attributable to the Crown or institutional delay and was largely unexplained. Critical evidence was disclosed some nine months after the tests which produced it, the appellant's request for earlier dates was ignored, and when the case was clearly in s. 11(b) trouble, the matter was not proceeded with on the date set for the long-awaited preliminary hearing. The length of the delay and the evidence supported the trial judge's inference that some prejudice to the appellant resulted from the delay. [Emphasis added by Court of Appeal.]

In this case, the lengthy delay is explained satisfactorily by the Crown once someone reads the entire Record, as supplemented by Mr. Semenoff's affidavit and other materials.

(i) Inherent Time Requirements

As noted, this is not an overly complex case as described by the Crown at page 2 of its Factum, though it involves serious accusations, and it is not surprising that seven days are required in light of the many witnesses required and the absence of any admissions. As will be evident in discussing the possible impairment to the fair trial right which s. 11(b) seeks to prevent, this is not a case involving an alibi.

(ii) Actions of the Accused

Having reviewed the entire record of the proceedings, including the exhibits, and the documentation and written submissions of all of the parties together with their case books, it will be apposite to set out below, under the heading of "Reasons for the delay, (ii) actions of the accused", the central legal and factual finding in this case. In short, they embrace the actions of both counsel in agreeing repeatedly to adjourn the proceedings in order that the Crown might review, not once, but twice, its file in order to determine whether a reasonable prospect for conviction existed at the time of the first judicial pre-trial, and subsequently. In so doing, both defence counsel were acting with a view to promoting the best interests of their clients and might well have been successful in this endeavor. That being said, their actions supporting further and further pre-trials and the lack of any protest of substance as to the pace of the proceedings, leads to the conclusion that all counsel were pleased with the pace of the proceedings and implicitly submitted to the Court that the period in question could be assimilated to either "increased intake" or reflected a greatly increased "inherent time requirement" for the trial of these accusations. Indeed, the record discloses that the period in question was seen as a neutral, though lengthy, period of fruitful discussions and negotiations and that the State cannot be faulted for agreeing to delay the setting of an early trial date in the circumstances.

By way of repetition, a review of the proceedings leads directly and solely to a finding that the parties viewed the period until July 4, 2012, as neutral.

I begin by emphasizing that the record of the proceedings makes plain that both accused face quite serious charges and their lawyers naturally sought to avoid trial, even the setting of a trial date, from the outset to July 1, 2012, (Canada Day), when Mr. Boxall was still advocating a "no-trial" resolution by the withdrawal of the accusations.

By reason of the fact that no counsel kept a form of "running or continuing record" or what amounts to a exhaustive list of the steps taken, or not, and for what reason, especially in light of the controversy as to the subsequent reinvestigations, the parties have had to order a transcript of each Court appearance and it has been necessary for the Court to read each word, in order to decipher the intent of the parties prior to concluding that Mr. Semenoff's opinion as to the period being a neutral opportunity to assess and then to re-assess is well founded. Stated otherwise, had the parties written to express a contrary view to what was being stated in Court, the findings as to this s. 11(b) application might have been different.

On August 24, 2011, a designation was filed by defence counsel for Mr. Sauve and disclosure was requested. The prosecution noted that the question of disclosure should be revisited on September 7, 2011. Of note, Mr. Nowak did not appear and a bench warrant was issued. On September 7, 2011, "initial" disclosure was provided. Both Mr. Nowak, now represented by Mr. Boxall, and Mr. Sauve (by designation) were to appear next on September 21, 2011. As made plain by Mr. Sauve at para. 5 and 6 of his affidavit, Mr. Sauve has not had to appear in Court from August of 2011 until the commencement of the s. 11(b) proceedings. I do not know how Mr. Nowak was brought back into the fold, so to speak.

On September 21, 2011, Mr. Sauve sought a counsel pre-trial for September 29, 2011, with a return date on October 19, 2011, with no indication that an earlier return date was being sought. The record is silent as to what took place for Mr. Nowak. On October 19, 2011, the Crown noted that two separate counsel pre-trials had been held. The record is silent why a joint hearing was not sought or held. At all events, counsel all sought a joint judicial pre-trial. The record is not clear whether the investigator was available on November 1, 2011, but Mr. Boxall wished the 8th of November. As for the return date, although the 16th and the 23rd of November 2011 were offered, Mr. Sauve's counsel opted for the later date. And, it appears that Mr. Nowak's designation was first filed that day.

On November 23, 2011, Mr. Nowak's counsel stated "... From my understanding the Crown is conducting a further investigation and the return date is two months from now, some time in January..." Mr. Sauve's counsel stated: "... I understand that the Crown is going to be requesting some time to investigate further matters, or to investigate this matter. I'll wait for my friend to confirm that." The Crown stated: "It would appear that there is some outstanding information that needs to be included in the file. Perhaps two weeks would be sufficient." In response, Mr. Sauve's counsel stated: "I understood it was to go to some time in January..." Both counsel for the accused agreed to January 11, 2012, though the Justice of the Peace suggested the 4th at one point. Nothing else noteworthy appears to have been said by any party. It is noteworthy that no letter setting out any party's expectation or understanding was filed or delivered and the understanding of the parties was not expressed any better than what has been set out herein. Thus, the prosecution sought a brief delay and the defence a much greater one.

A passage from the case law may be of assistance. R. v. Findlater, 2012 ONCA 685, an endorsement signed by Winkler C.J.O., Rosenberg and Hoy JJ.A., includes these remarks on this subject at para. 6:

[6] The trial judge attributed five of the seven month delay due to the adjournment as institutional delay. This was a reasonable allocation of delay. The trial judge took into account that defence counsel cannot be expected to be ready to accept any date offered and thus attributed most of the delay to lack of adequate institutional resources. But, he could also take into account that there was no suggestion that counsel wanted an earlier trial date or that the trial was being unreasonably delayed. It may be that these two months could more properly be considered to be neutral rather than defence delay, but that would not alter the s. 11(b) analysis. [Emphasis added]

Earlier, at para. 4, the Panel wrote: "[...] When the case was spoken to in February 2010, there was no suggestion that the appellant was prejudiced by the delay or that he was seeking an earlier trial date."

Noteworthy as well on the subject of the relative merits of an objection by the accused to the accruing delay is para. 8 of R. v. Findlater, 2012 ONCA 685, an endorsement signed by Winkler C.J.O., Rosenberg and Hoy JJ.A., reads as follows:

[8] We do not agree that the trial judge did not take into account any prejudice that could be inferred from the delay. The trial judge expressly acknowledged the prejudice to the appellant's liberty interests by the strict bail conditions. But, he also fairly noted that each time the appellant sought to loosen the bail conditions, Crown counsel consented and that on the last occasion, the appellant waited several months before entering into the new recognizance. The trial judge did not find that the appellant did not suffer any prejudice, only that he had 'a tendency to overstate the problems'. It was not that the trial judge found no prejudice, only that he had not established the degree of prejudice claimed. As he said: 'Where an accused does not suggest that a proposed trial date is going to cause unacceptable prejudice and accepts that date without comment, it's reasonable to infer that significant prejudice will not occur. I draw that inference in all the circumstances here.' [Emphasis added by Court of Appeal; underlining by the writer.]

On January 11, 2012, Mr. Nowak's counsel sought a second counsel pre-trial and the Crown replied: "It's a situation ... depending on further investigation the Crown will either be proceeding with these charges or not. I know from recent discussions with the investigating officer the timeline determines some of that further investigation may possibly take us to February, but I think to have a meaningful counsel pre-trial I'd rather have it in early February if that's fine with Mr. Boxall's schedule." Mr. Boxall's agent stated "That's agreeable and I'll relay those comments to Mr. Boxall." Since Mr. Boxall was not available on February 2nd, the 9th was selected. The return date was the 15th of February, 2012. Mr Sauve's counsel agreed to the same dates and the prosecutor then stated "And what I advised on the record, I can't go into specific details but my understanding from discussion with the investigating officer is the additional investigation should hopefully be completed within the month ... And that's what we're simply waiting on to see what direction the file is going."

On February 15, 2012, Mr. Semenoff for the Crown observed: "... this is a matter that Mr. Boxall and I had a counsel pre-trial last week. It's a matter of quite serious charges that we're looking for some follow-up disclosure from the investigating officer. I did receive a couple of messages from him yesterday. However, I need to have some discussions with him. I think the reasonable period at this point, so that we don't have meaningless appearances would probably be about three weeks. At that point, hopefully we'll have whatever disclosure we need to move the matter forward, one way or the other." Counsel for both accused merely noted their agreement, without more, and the matter was put over to the 7th of March, 2012.

The record is silent whether Mr. Sauve's counsel took part in the counsel pre-trial scheduled on January 11, 2011, which took place on February 9, 2012.

The record of the proceedings of March 7th, 2012, reports that Mr. Semenoff stated: "This is a matter that we are awaiting on additional investigation and additional disclosure for the defence ... My understanding is that some of that has been done in terms of the investigation, although it hasn't been completed. From my discussions with the officer, Your Worship, while there had been some consideration in terms of whether there was a sufficient prospect of conviction, I'm of the view, from discussions with – that there are. I suppose the next step is probably another judicial pre-trial." [Emphasis added]

Mr Semenoff added later, "... there is some disclosure that, I suppose, will be coming, as there's some investigation continuing, although it seems to be wrapping up, and upon my review of the file and discussions with the investigating officer, there's sufficient prospect that the Crown is moving forward ...." The Court stated: "... and in that sense, the judicial pre-trial is probably the best next step." Both defence counsel agreed and the matter was to be adjourned one week, to March 13, 2012, until Crown counsel asked for a further week, given the school break. In the result, the return date was pushed back to April 11, 2012, Mr. Sauve's counsel declining the suggestion of April 4, 2011.

On April 11, 2012, counsel for Mr. Nowak indicated to the Justice of the Peace "This is a matter where the Crown is doing a recent further investigation. Mr. Boxall has been in contact with Mr. Semenoff, and, so, I'm not sure if there's an indication in the Crown's file as to how long Mr. Semenoff needs for the investigation." The Crown responded "... there's no time estimate. I'd request a two-week adjournment" and both defence counsel agreed. In effect, neither defence counsel sought an immediate trial date upon being told that the Crown was not withdrawing the accusations and neither lodged any concerns as to the on-going delays.

At this juncture, the Court had not yet been informed that anyone was objecting to the pace of the proceedings or that the case is headed towards s. 11(b) waters, so to speak, and the Court was not invited to take any special steps. Further, since no one had written a letter or memorandum of any sort establishing what was agreed to, if anything, at the recent pre-trial, the record is clear: the prosecution was undertaking a "recent further investigation" which must be different from what led Mr. Semenoff to conclude earlier that there was a sufficient prospect for the prosecution to be maintained.

On April 25, 2012, Mr. Smith commented to the Court in response to the question "... What are we doing, sorry?" "I'm looking at my friend. There's – the matter has been going on for some time. I know the Crown was to do some more investigation. I'm wondering where we are at and where we are going? I sent Mr. Semenoff an e-mail a few weeks back, with some hope of finding out. Here I am." Mr. Semenoff replied: "I don't recall what that e-mail was, but I know we have had a judicial pre-trial, as well, at the end of March. It has quagmire in a little bit of the sense of further investigation, and I think production orders with regard to telephone records, as such as that. (sic). It's a situation where I need to follow up, frankly, with the investigation officer. I would probably benefit of a counsel pre-trial, once that follow-up is done. I'm just not sure when – when that realistically, is going to be – we can schedule something. My concern is, if we schedule a counsel pre-trial in mid-May, it's not going to be with me and – and it's going to lose some of the continuity on the file. So, I'm content, perhaps, putting it over two weeks. In the interim, I will have conversation with the investigating officer and we'll see what we can do to move it forward." Both defence counsel agreed without further comment to putting it over to May 9, 2012.

In this vein, Mr. Smith's e-mail, which I requested, contained 11 lines of substance, but only two addressed the matter of the proceedings, and they read: "I understand that we are back in Court on the 11 th of April, but I was also advised that we were to have another meeting to discuss the RPC. What is the date for that meeting?" I note that RPC stands for reasonable prospect of conviction. The balance of the communication dealt with a consent variation of bail.

In the result, although Mr. Semenoff ought to have had this e-mail in the file, and he ought to have replied to it in some fashion, the fact remains that Mr. Smith does not appear to have sought further word on the suggested meeting, which had not taken place by April 25, 2012, 23 days later. Further, Mr. Smith has clearly set out that "the matter has been going on for some time" and that delays involve further investigation of phone records and, more importantly, review by the assigned prosecutor of the likelihood of a successful outcome. It is not clear whether this is yet a further review of the question of the reasonable prospect of conviction or a continuation of this enterprise, but no party sought a trial date or a judicial pre-trial and both defence counsel were content to adjourn the matter as proposed.

In light of Mr. Smith's somewhat muted protest of April 25 th , 2012, the events set out below are critical to the finding that defence viewed the actions of the past many months as part and parcel of a protracted negotiation that was to be pursued, though a trial date could have been set much earlier in November of 2011, as suggested by Mr. Semenoff's affidavit and expanded statement.

Indeed, on May 9, 2012, Mr. Smith sought a counsel pre-trial and the prosecutor, not Mr. Semenoff, pointed out that there had been a prior counsel pre-trial in September of 2011 and a judicial pre-trial in November of that year. Mr. Sauve's counsel then stated: "... this has been a matter where the Crown's office and counsel for the co-accused have been in discussions. There's been some further investigation by the officer ... with respect to the incident in question, whether or not there is a reasonable prospect of conviction following the investigation ... I believe there's been some further information provided by the detective to the Crown, which will require the counsel pre-trial." Of note, the Crown then observed: "All right. This is a defence request." Since Mr. Semenoff was not available the next day, counsel agreed to hold the counsel pre-trial on May 17, 2012, with a return date of May 30, 2012.

Of note, Mr. Boxall would have preferred a further judicial pre-trial and this preference led to a discussion which veered into the possibility of addressing a meeting of the lawyers prior to a judicial pre-trial. Further, Mr. Boxall's representative was prepared to be flexible in terms of scheduling the matter for the 17 th , though he was in trial, as the crown and the judicial officer presiding had both remarked that "this matter has been in the system now since ... very long ... very long". Justice of the Peace Pearsen added: "We really have to move this matter forward."

In response, neither defence counsel asked for a step involving a trial date being selected. Since no one asked for a trial date, it would have been preferable for defence counsel to have waived s. 11(b) in precise terms. Nonetheless, it was the Crown and the Court who voiced concerns as to the pace of the proceedings, and a fair reading of the comments of defence counsel suggests that the defence sought to placate the Court by insisting that the further review and second counsel pre-trial would be of benefit to all of the parties.

On May 30, 2012, Mr. Boxall's representative requested a counsel pre-trial with a judicial pre-trial thereafter. The Crown, not Mr. Semenoff, replied "There was a CPT on May 17. Do you want another one?" Mr. Nowak's counsel replied in the affirmative and this was set for June 7, 2012, with a judicial pre-trial on June 19, 2012, as Mr. Boxall's firm was not free on the 12 th , and the return date was set for July 4, 2012. Mr. Sauve's representative later agreed to a counsel pre-trial on June 7, 2012, but when it came to the judicial pre-trial, Mr. Sauve's representative had no instructions having remarked: "I can't do it at this time, but maybe I could schedule a return appearance." It was decided to re-address the matter of the judicial pre-trial on June 13, 2012, after the counsel pre-trial.

Mr. Sauve's representative appeared on June 13, 2012, and though surprised to find out that a judicial pre-trial was scheduled for June 19, 2012, agreed that Mr. Smith would be participating. The return date was July 4, 2012, as agreed upon previously.

Justice Wake presided over the matter on July 4 th , 2012, and noted in reference to Mr. Sauve's counsel: "... I'm trying to get everybody together at the same place. The last problem and the reason why it's here, of course, is that you weren't at the pre-trial and we couldn't do anything in terms of setting a date." Thereafter, for the first time on record, it was stated that the matter was to be tried, and defence counsel elected for a trial in the Ontario Court of Justice, estimated at 7 days in duration. Mr. Smith attempted to defend his absence from this judicial pre-trial, perhaps for the second occasion as the record is simply lacking in information in this regard, but I cannot see how it did anything but retard the progress of the proceedings. As a matter of fact, a trial might well have been set on June 19 th , 2012, to the great advantage of all accused and the administration of justice.

At all events, Mr. Semenoff informed Wake J. on July 4, 2012, that the trial coordinator indicated that there were available dates beginning in February 2013 but that Mr. Boxall was not available and thus, February was not an option "... and most of March but for one week was not an option. And it was thought that one week ... it was the March break, wouldn't be as beneficial as having a full seven days straight in April." Mr. Boxall's representative clarified "Mr. Boxall was available and had a lot of availability in the Fall. The first days that were offered to the defence and to the Crown were 2013 and Mr. Boxall is defending a lengthy murder trial in Brockville which cannot be postponed or changed. So that's why he is unavailable until March, and given that the request was for seven straight days for trial, that is why we went into April."

The trial is to begin on April 15, 2013, for seven straight days.

The After the Fact Record of the Events

Having reviewed at length the Record, it will now be of assistance to review certain other factual assertions meant to obviate for the paucity of the Record.

The Crown-Respondent filed an affidavit and a supplementary statement of fact signed by Mr. J. Semenoff, the Assistant Crown Attorney who was the lead counsel responsible for the prosecution of both co-accused for the greater part of the outstanding period of delay, as well as for the two youthful co-accused prosecuted pursuant to the Youth Criminal Justice Act during the same time period.

Mr. Semenoff reported firstly that the two youths pleaded guilty to certain accusations on December 17, 2012, the day that their five-day trial was to begin.

Secondly, Mr. Semenoff stated at para. 2 that the transcripts do not "fully explain the progression of this matter and the reasons for the delay." In this vein, counsel added that by September of 2011, less than two months after the event in question, "... the file was largely complete and that there was a reasonable prospect of conviction with respect to all charges." See para. 10.

Further, on the subject of what transpired between all counsel, para. 11 reports that "On September 29, 2011, two counsel pre-trials were held, first with Mr. Boxall ... and then with Mr. Smith... Mr. Boxall was pushing for a reconsideration of reasonable prospects of conviction on the issue of identity, which I agreed to reconsider and it was agreed that the next step would be a judicial pre-trial ..." This scenario was largely repeated with Mr. Smith. Indeed, Mr. Semenoff stated that his aide-mémoire recorded: "Need to assess strength of IDs - This is a very serious case and warrants some discussion repositions with investigating officer and a judicial pre-trial. Likely trial and we should set a judicial pre-trial for trial date sheet."

In addition, Mr. Semenoff added further comments by way of "expansion" on the morning of the hearing of the s. 11(b) application. Counsel commented: "I agree with Mr. Boxall that as the case at that time rested on the identification evidence of C.C., who was identifying masked individuals, that a better assessment of Mr. C.'s identification was warranted. Depending on the frailties in Mr. C.'s identification evidence, it was discussed that withdrawal was one possibility after my reconsideration."

Unfortunately, no counsel took the time to write a letter or to record the consensus reached as to the need for a review of the file, for reasons of weak identification, assuming that Mr. Semenoff's recall and notes are accurate. Since no one else has suggested a different understanding based on any contemporaneous record, I reluctantly find that this perspective is accurate and reliable. It would have been preferable by far had defence counsel suggested a sunset clause of sorts beyond which the case returned to the normal course of proceedings.

In course, a judicial pre-trial was held before Dorval J. Further investigation addressed potential leads flowing from recovery of certain stolen goods. Mr. Semenoff added that at some point that day he requested that the investigating officer interview Mr. C.C. "so we would be in a better position to assess the strength of his identification of the Applicants." The prosecutor added that all counsel agreed that a trial date ought not to be sought at that time as this would be "premature", as set out at para. 12, and that the matter should be put over to mid-January 2012 for a further counsel pre-trial with the interesting phrase which speaks volumes about the pace of the proceedings: "... when the Crown would likely have further information from (the investigating officer) as to the additional investigation."

At this stage, there is no precise indication that Justice Dorval was asked to comment as to the strength of the identification evidence, much less that she was even informed that the detective was being tasked as suggested by Crown counsel. Further, there is no suggestion by either defence counsel (as might have occurred if either had written a memorandum and exchanged it with Mr. Semenoff) that they were opposed to this neutral adjournment, as Mr. Bocking termed it during his able submissions, which took the parties in my estimation from just past Halloween (November 8, 2011) to well after the New Year of 2012 without any concrete understanding of what was to occur and when.

Drawing attention, for a moment, away from the pace of the proceedings to the question of the restrictions on the co-accused liberty, para. 13 records that Mr. Semenoff refused a request for a variation to allow Mr. Sauve's curfew to be expanded from 10 at night to midnight, as it was then December 22, and the Holiday period was risky in terms of parties and alcohol abuse. Notably, Mr. Semenoff did not indicate that he would consent to this variation as of some date in January and his "expanded" statement cannot assist whether Mr. Smith was informed of the reasons he elected to reject the requested modification. Of course, it does not appear that Mr. Smith pursued the matter after the initial refusal. Thus, the Crown said no without elaboration and the defence did not seem interested in challenging this decision.

In this context, para. 19 refers to a request for a bail variation by Mr. Sauve which was consented to in order that the accused might "associate" with one of the complainants at work. On all occasions in which variations were sought to alleviate any issues at work, they were agreed to without difficulty.

At all events, para. 14 informs us that on December 22, 2011, Mr. Semenoff left a message for the responsible detective, who was on holidays.

Para. 15 of Mr. Semenoff's affidavit then discusses the counsel pre-trial of February 9, 2012, involving Mr. Boxall. The notes he kept suggest that no meaningful progress was achieved in that the detective had not reported and thus, the reasonable prospect of conviction issue could not be addressed. No mention is made of Mr. Smith. In fact, the detective reported to Crown counsel on February 15 as to his interview with the "eye witness".

Para. 17 then records the next judicial pre-trial with Nadelle J. on March 20, 2012, but Mr. Smith was not apparently present. Mr. Semenoff's notes read: "While borderline case still reasonable prospect of conviction. Follow-up investigation required to determine strength of ID evidence. If trial, detective and I need to work out witnesses and set further judicial pre-trial." Para. 18 adds that "From my memory, the follow-up investigation referred to ... refers to a video interview of Mr. C.C. and the completion of production orders with respect to various phone records relating to the (various accused)." Mr. Semenoff noted also that the detective had spoken to Mr. C.C. over the telephone."

Thus, no real progress was made on the question of how reliable was the identification evidence of Mr. C.C. and yet neither defence counsel has written a letter or memorandum setting out a date for the discussions to end and a trial to be set, suggesting clearly that success for the clients is to be gained by means of this on-going discussion, notwithstanding its quite slow and deliberate pace.

Returning to the question of the "eye witness", we read at para. 20 that the lead investigator had interviewed Mr. C.C. on May 7, 2012. As a result, Mr. Semenoff concluded that the accusations would not be withdrawn as the case was suitable to be pursued. It is not known what, if anything, was said on this question to the defence. Indeed, Mr. Semenoff indicated that his commitments made it such that he could not be present for the counsel pre-trials of May 17, and June 7, and for the judicial pretrial of June 19, 2012. Mr. Semenoff commented that he was informed that these discussions were not meaningful given the "complicated nature of the file" and his absence. I do not know what is meant by the complicated nature of the file comment as only one witness can comment as to the identity of the perpetrators it seems and all others aspects of the Crown's case were of a routine nature in the sense that all of these witnesses claimed to have been robbed and detained, with good descriptions of the items taken.

Para. 22 reads "After defence were advised of my position with regard to reasonable prospects of conviction, I was asked again to reconsider my position". Counsel refers to Mr. Boxall's e-mail of July 1, 2012. I note that there is no indication when and by what means this position was communicated to counsel and one is left to speculate whether this occurred after the two counsel pre-trials and the judicial pre-trial described above and discussed at para. 21.

In this day and age of instant communication, the Court is astonished that no letter or memorandum was forwarded by the Crown and that the only written source from either defence counsel on this issue of the further reconsideration was generated on July 1, 2012, and it speaks volumes as to the lack of any understanding as to what testimony is expected to be advanced at trial. Mr. Boxall noted that the identification evidence is weak as regards the reliability prong and that the Crown has nothing more to link his client (and Mr. Sauve, it seems) as no phone records yielded any useful information.

All that being said, I am quite uncomfortable being shown e-mails from counsel but since no objection was raised, I leave to another day the resolution of the question whether these are privileged.

Touching upon the case to be met question, it is discussed by Mr. Semenoff in his para. 23 as found in his clarifications. "In my estimation of the file prior to November 8, 2011, I felt disclosure was largely complete by the initial judicial pre-trial of November 8, 2011. Prior to the judicial pre-trial of November 8, 2011, I was prepared to obtain a (trial scheduling) sheet and set the matter down for trial following the judicial pre-trial." Mr. Semenoff added, "However, as defence counsel requested that I reconsider reasonable prospect of conviction and as the investigating officer was conducting further investigation, I felt that the interests of justice warranted delaying setting the matter down for trial. At no point did either defence counsel indicate their disagreement with the approach taken and in fact they advocated for the further investigation and reconsideration by the Crown of reasonable prospect of conviction."

As I discussed briefly earlier, Mr. Boxall's schedule was not filed and I think it unlikely that so senior a member of the Bar had seven straight days open in his Fall schedule as late as July 4, 2012, unless some important file had just been resolved. I am not disputing the comments made by his representative, far from it, merely noting that to be ready within three months (July to October) for a seven day trial is quite difficult. In the future, it would be far better to file an exact print out of his available dates or of his trial calendar. In any event, Mr. Sauve's counsel was not available in the Fall based on an absence of any other indication on the record, and both of the co-accused young persons were being tried in December, for some five days, which meant that a "break" was required for the witnesses.

A final comment as to the state of the Record: the investigator was not called by any of the parties and the record is silent why it took so long for the initial and subsequent re-investigations to take place.

On the issue of the record, noteworthy is the endorsement in R. v. Fenlong, 2010 ONCA 252, signed by Doherty, Moldaver and Epstein JJ.A., which includes these remarks: "[6] As the record shows, the system was prepared to accommodate the appellant throughout and had he availed himself of the various opportunities, or even some of them, his trial would have occurred much earlier. That did not occur because initially the appellant had difficulties retaining counsel of choice and latterly, because his counsel of choice could not take up the April dates offered in the Superior Court." In this case, an earlier date was not sought, as discussed.

(iii) Actions of the Crown

As noted, the Crown could have avoided a great deal of lost preparation and Court time had it written to the parties and to the Court to set out that a neutral tack was being taken in order to make plain that the proceedings were not headed towards s. 11(b) waters. It is responsible on the same footing as the defence so far as the inadequate record is concerned. Further, the actions of the Crown on May 9 th , 2012, discussed earlier, demonstrate that the prosecution file itself was not endorsed in such a way as to indicate that a neutral period was at play. The need for an on-going trial record needs no further support.

Para. 42 of R. v. W. (A.J.), 2009 ONCA 661, reads:

[42] It remains to consider the balance of the delay from January 14, 2008 to the selected trial date of June 23, 2008. This is a very long period considering the delay that had already been occasioned in this case and requires special scrutiny. Regrettably, there is not a great deal of information. The court offered the respondent dates in every month between January and June. Defence counsel declined each of those dates because of his other commitments. He made no attempt to supplement the record by indicating that he was available at other times for this trial. [Emphasis added]

Immediately prior, the Court observed:

[41] On this record, the Crown's decision to apply for an adjournment was reasonable and should not be characterized as a simple tactical decision. Presumptively then, the resulting delay was neutral. That is not to say that all the ensuing delay should be considered neutral. Given the delay that had already occurred through no fault of the respondent, he was entitled to expect the system to respond with some urgency by offering dates for the trial as soon as reasonably possible. He was entitled to have the system give his case priority. My review of the record indicates that this is exactly what occurred. The respondent was offered trial dates within less than three months. That said, if there was evidence that the respondent's counsel was available within an even shorter time, I might have considered some of that three months to be institutional delay. However, there was no such evidence and no suggestion that defence counsel was able to accommodate an earlier trial date. [Emphasis added]

Much earlier, the Panel noted:

[34] I take a different view of the period from July 31 to October 29, 2007. With the exception of this period, on all other occasions when the matter had to be re-scheduled, Crown counsel took care to put on the record dates when the trial could be accommodated but defence counsel was not available. However, during this period, neither Crown counsel nor the court made reference to any dates. In my view, the record is reasonably open to the inference that the system was not able to accommodate this case from July 31 until October 29, 2007. Given that the initial reason for the delay was institutional delay, the evidentiary burden was on the state to show the system was able to accommodate this trial: see Morin, [1992] 1 S.C.R. 771, at p. 788. Thus, this 3 month period must be characterized as institutional delay. [Emphasis added]

(iv) Institutional Delay

Save as noted earlier, no institutional delay is at play and it is noteworthy that the presiding judicial officer on May 9, 2012, sought to get the case moved along. In light of the guidance set out above as to the Crown's burden to show that a trial could have been held within a reasonable period of time if sought in November 2011, the fact remains that no one asked this fundamental question.

(v) Other Reasons for Delay

This category is not relevant.

Reasonableness of the Delay Prior to Measuring Prejudice

The time period in question is quite troubling, as noted on May 9, 2012, and on any outward evaluation that does not involve reading many transcripts. At the end of the day, leaving aside prejudice, this trial is found to be within the Morin guidelines for a co-accused prosecution scheduled by all parties to require seven days as it involves multiple witnesses.

Prejudice

A Word on the Guidelines and the Question of Prejudice

Justice Rosenberg wrote the judgment of the Court of Appeal in R. v. W. (A.J.), 2009 ONCA 661, Armstrong and Epstein JJ.A., concurring. At para. 38, His Honour wrote: "[...] the submission fails to take into account the nature of the Morin guideline for institutional delay. The periods referred to in Morin are guidelines not limitation periods or hard and fast rules. As Sopinka J. said in Morin at p. 796: 'A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors.' It is open to a court to find the delay to trial unreasonable even where the institutional delay falls within the Morin guidelines, especially where there is real prejudice to the accused: Morin, [1992] 1 S.C.R. 771, at p. 807."

A Word on Actual Prejudice: The Standard Is Not Exacting, Especially If the Guidelines Are Not Respected

Justice Juriansz wrote the judgment of the Court of Appeal in the case of R. v. Brace, 2010 ONCA 689, with O'Connor A.C.J.O. and Simmons J.A. concurring. The Panel held at para. 22: "The trial judge placed too much weight on the prejudice factor in reasoning that the s. 11(b) application should be dismissed because of the lack of 'stronger or more case specific' evidence of prejudice."

The Court had already considered the guidance of the Supreme Court of Canada in this regard, at para. 21, as follows:

[21] Where delay exceeds the guideline period, the significance of actual prejudice is reduced. In R. v. Morin, [1992] 1 S.C.R. 771, at para. 53, Sopinka J. writing for the majority said:

[53] The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. [Emphasis added]

In the case of R. v. Li, 2012 ONCA 291, Justice Feldman wrote the judgment of the Court on behalf of O'Connor A.C.J.O. and Sharpe J.A. In the course of her reasons, Her Honour quoted para. 30 of the reasons for judgment of Cromwell J. in R. v. Godin, 2009 SCC 26:

[17] In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, Cromwell J., at para. 30, reiterated the role of prejudice in the s. 11(b) analysis:

[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, [1992] 1 S.C.R. 771 at pp. 801-3.

The Original Arrest and Release

Mr. Sauve was arrested on August 15, 2011, and released on the same date by means of a promise to appear involving an Officer in charge undertaking with conditions including notification of pertinent changes to the investigating detective, no contact with the co-accused, alleged victims and witnesses, and a curfew from 10 at night until 6 in the morning save for employment or educational reasons, together with a general keep the peace condition. Mr. Sauve was directed to attend in Court for his original appearance on August 24th, 2011 and to comply with the typical identification requirements on August 17. In light of the arresting officer's exercise of discretion, Mr. Sauve was not detained save during a few hours, and this was not discussed in his affidavit. At all events, neither Mr. Sauve nor his parents were required to post any form of security or funds and he did not have to incur legal expenses to secure his release.

The Variation of the Release Conditions

Mr. Sauve indicated at para. 5 of his affidavit of December 24, 2012, that "On August 19, 2011, I personally appeared in Court with my lawyer ... to vary a condition of my release." To be precise, Mr. Sauve met no opposition from the prosecution when he asked to be at liberty to have "incidental contact with two of his youth co-accused" who were charged separately. As made plain in the transcript of that date, the Crown consented to this request, even prior to the first appearance, as Mr. Sauve and the youths were employed together at least one of the three work locations. The Justice of the Peace broadened the no-contact conditions but the accused was not placed under any greater restraint, all things being equal, as he could have incidental contact at school as well.

Subsequently, as set out at page 3, para. 11(a) of his affidavit, Mr. Sauve indicated that he sought "On December 21, 2011 ... to vary my curfew during the Christmas holiday in order to spend time with my family. I requested to vary the hours from 10:00 pm to 12 am. Mr. Smith advised me ... that the Crown Attorney on December 22, 2011, refused to consent to the variation." Mr. Sauve did not mention, directly or indirectly, that he pursued this request past the Holiday period so I must assume that he was content to comply with these minimalist conditions until trial, notwithstanding his complaints as set out at page 3 respecting the limits placed on his social life.

Prejudice – Harm and Prejudice to Educational Endeavours

The Factual Submissions for Mr. Nowak

Mr. Nowak's affidavit, dated December 24, 2012, records that he graduated from High School in June of 2011, a month prior to the allegations of July 16-17, 2011, and that he was a full-time student at Carleton University, studying History. Mr. Nowak indicated at para. 13, "… although I have been doing very well at school, I would have done even better, if I had not had this additional stress and anxiety from the ongoing Court case." Further, Mr. Nowak stated that he continues to work, without further delays. Further yet, para. 23 of his Factum reads: "The stress and anxiety with which the Applicant has suffered has also affected his performance at school, as it has distracted from his studies."

Mr. Nowak's Testimony

Of note, Mr. Nowak stated that he received "top marks" in one course. Further, the cross-examination by the prosecutor, aided by numerous photos from Facebook, suggests that Mr. Nowak was able to socialize quite well with fellow students, notwithstanding his stress and anxiety, and that he did consume alcohol.

The Factual Submissions for Mr. Sauve

Mr. Sauve's affidavit sets out at p. 3 that he found it difficult to focus on his studies at Algonquin College due to the stress "of the criminal charges pending." Nonetheless, Mr. Sauve reported that he obtained his diploma, apparently on time. That being said, Mr. Sauve has decided not to return to the College to pursue a Business Diploma as his legal fees have prevented him from being able to pay tuition and the timing of the trial will conflict with final exams.

Mr. Sauve's Testimony

Mr. Sauve did not elaborate much on this aspect of his affidavit, and it was not challenged to any great extent.

Legal Prejudice Arising from a Much-Delayed Trial in Terms of Educational Opportunities

In the case of R. v. Li, 2012 ONCA 291, Justice Feldman wrote the judgment of the Court on behalf of O'Connor A.C.J.O. and Sharpe J.A. In the course of her reasons, Her Honour provided valuable guidance on the fact-finding which may occur in assessing seemingly uncontradicted evidence touching upon actual prejudice. As we read at para. 9, "[...] Despite the fact that those affidavits went unchallenged by the Crown, the trial judge found that the appellants' assertions of actual prejudice caused by the conditions of their house arrest were contrived and he rejected them."

Further, para. 11 informs us that "The trial judge rejected the appellants' claims regarding work and education, based on the fact that they were not substantiated by any details, such as an educational plan. He noted that Mr. Lau had breached his bail which did not bolster his prejudice claim. The trial judge concluded that the young men's biggest problem was being confined with their parents for the period."

Other cases reviewed tend to address this element as tributary to other aspects of actual prejudice, notably stress and anxiety, on the one hand, and financial hardship, on the other.

Findings as to the Claimed Prejudice Respecting Educational Opportunities

Mr. Nowak

On this foundation, mindful of the absence of an educational plan after graduation in that Mr. Nowak did not explain why he did not study after Grade 12 from high school, it is not doubted that Mr. Nowak's work duties, presumably on less than a full time basis as this is not discussed further, have effected his academic output but this is true of a great number of students who are not wealthy. In addition, if it is fairly gleaned from his affidavit and testimony that he needed to work full time to help pay for his lawyer, a statement which was not made plain, and now on a part-time basis to pay for his education as well as for his lawyer, there is no relationship between the length of the proceedings and the financial strain involved. A seven day trial within 8 to 10 months would cost as much as a year later.

I hasten to add that although the issue of stress is to be discussed more fully under the rubric of "psychological prejudice", it is acknowledged that it must have played some role in limiting to some degree the accused person's ability to study during the relevant time. And, that this would combine with other stressors, notably financial, to potentially affect his academic output. Nevertheless, Mr. Nowak is doing quite well in his studies and no one has suggested that the April trial date, if a trial were held, will impair his academic potential or cause him to miss exams or assignments. On the record, there is some degree of actual prejudice but it is of trifling importance when all the elements of Mr. Nowak's social activity are weighed.

Mr. Sauve

I do not question that Mr. Sauve anticipated pursuing a further Diploma and that the question of legal fees and the trial date have interfered with this project. That being said, the absence of details as to the legal fees, as discussed below, prohibits the Court from finding that the delays, as opposed to the trial embracing seven days, have resulted in blocking an educational opportunity. Secondly, as discussed below, Mr. Sauve was also pursuing employment opportunities and had any of these been successful he would have likely deferred his return to school for at least one year. Thus, the delays are not significant in this regard, as opposed to the fact of the trial. In addition, his poor psychological state, as will be discussed below, probably rendered academic success unlikely in any event.

Prejudice – Harm and Prejudice in Terms of Cost of Legal Services

The Factual Submissions for Mr. Nowak

Mr. Nowak's affidavit indicated at para. 12: "The ongoing delay and increasing complexities of the matter has (sic) also increased the financial consequences of preparing my defence. As costs have mounted, I have been unable to pay them personally and this has created additional stress within my family situation."

Mr. Nowak's Testimony

Mr. Nowak did not add any details in his testimony.

The Factual Submissions for Mr. Sauve

This individual reported at para. 7 and 8 of his affidavit that the many meetings involving his lawyer and the prosecutors and the pre-trial judges have generated fees. Further, para. 6 recorded earlier that several Court appearances have been necessary because of the ongoing investigation of the file. Further yet, para. 10 includes the equivocal phrase: "Mr. Smith advised me that I should expect to pay much more for him (and office) to conduct a 7 day trial."

Mr. Sauve then stated that "11) As a result of the delay in getting this matter to trial, I have suffered and I continue to suffer prejudice as these charges remain outstanding … d) I have used my earnings (from two jobs) to pay for my legal fees. I have accessed the line of credit that was in place for my father and mother." Mr. Sauve also noted his great concern that his employers might discover his legal predicament as a result of the delays and discharge him, leading to a further and greater burden upon his parents to defray legal costs.

Mr. Sauve's Testimony

The Crown did not concern itself much with this element of the claimed actual prejudice, concentrating more on demonstrating that the employment concerns arose out of the fact and stigma of being charged and far, far less on the issue of trial delay.

Legal Prejudice Arising from a Much-Delayed Trial in Terms of Legal Costs to Pay for a Defence

As will be seen, the prejudice to be assessed is not in terms of the actual legal fees to be paid by an accused to defend the accusations, but those fees, if any, arising from the increased period of time beyond the inherent or reasonable requirements of an otherwise proper defence. In this vein, Justice Rosenberg wrote the judgment of the Court of Appeal in R. v. W. (A.J.), 2009 ONCA 661, Armstrong and Epstein JJ.A., concurring. At para. 46, the Panel held:

[46] In considering whether the delay was unreasonable, regard must also be had to the prejudice to the respondent. The trial judge found actual prejudice to the respondent's security interests and I have not been persuaded that his findings in that regard were unreasonable. To the contrary, there was abundant evidence of the toll the delay had taken on the respondent in terms of lack of access to his daughter, lost employment opportunities, increased legal fees and stigmatization. Actual prejudice to the respondent's security interests is an important factor in this case. There was, however, no suggestion of prejudice to the respondent's fair trial interests or his ability to make full answer and defence. Admittedly, the presence of that type of prejudice is not always required for a finding that section 11(b) has been violated: see Godin, 2009 SCC 26, at para. 38. [Emphasis added]

The underlined passage emphasizes that it is the "increased legal fees" that are to be assessed in evaluating the actual prejudice. To do otherwise would result in an analytical confusion between the objective cost of a defence and the increased cost of that defence by reason of the undue or unreasonable portion.

Findings as to the Claimed Prejudice Respecting Educational Opportunities

On the record before the Court, nothing is known of the fees involving Mr. Nowak save that they have mounted apparently due to the ongoing delay and increasing complexities of the matter, as set out at para. 12. Noteworthy is that nothing was said to explain the suggested "increasing complexities" and that no testimony serves to distinguish between what Mr. Nowak would have paid Mr. Boxall had his lawyer succeeded in convincing Mr. Semenoff to withdraw the charges in November of 2011 at the time of the initial judicial pre-trial. Those fees arise out of the general retainer to defend serious and numerous accusations. If further legal fees arose after that date, they surely cannot embrace the cost of contesting the accusations during the scheduled seven-day trial as they would have been owed to Mr. Boxall had the trial been scheduled in early 2012 after the November 2011 judicial pre-trial.

On the record, this suggested element of actual prejudice is quite speculative and impossible to quantify in terms of Mr. Nowak. As for Mr. Sauve, it is not clear that he even knows what he is to be billed for his trial, an uncertainty that may contribute to his anxiety, but it is also far from clear in his case whether any of the fees to be paid are tributary to delay as opposed to inherent in contesting a 7 day trial.

Prejudice – Harm and Prejudice in Terms of Employment Opportunities

The Factual Submissions for Mr. Nowak

Unlike Mr. Sauve, Mr. Nowak has not insisted on this element of actual prejudice. Nonetheless, he does indicate vaguely at para. 13 that "The delay and lack of closure of this matter has affected my plans for the future." On the assumption that this phrase embraces lost job opportunities, it is noted that Mr. Nowak's affidavit relates at para. 13 that he worked at a restaurant and subsequently at an automobile dealership on a full time basis, which continues to employ him during his University studies.

Mr. Nowak's Testimony

This point was not emphasized in the least.

The Factual Submissions for Mr. Sauve

Unlike Mr. Nowak, Mr. Sauve is in a position to secure fulltime, permanent, employment as he has completed a diploma qualifying him for many positions in the field of Heating and Air Conditioning, and thus any position he does not secure represents a potential "compound" loss for him. In this respect, he deposed that he has been searching for a position in his field but without success, pointing out at para. 11(c) that "After employers do a background check on me and find out about the criminal charges, they do not hire me or call me back …" with obvious consequences to his sense of self-worth. I note as well that Mr. Sauve's affidavit refers to neighbours referring to him as a criminal. See page 4, para. 11(f).

Mr. Sauve's Testimony

Mr. Sauve detailed his difficulties in securing a job, emphasizing how a position in which his father had some influence went for naught and his sense of hopelessness was quite evident in this regard. Mr. Sauve could not understand how he could do so well in the application stage, interview, et cetera, and yet be incapable of getting work, pointing out again how things unravel after the background check, it seems, and as he surmised. He has to continue with his two part time positions.

Mrs. S. Carpenter's Affidavit and Testimony

The young man's mother made plain that her son is in a vulnerable state to the extent that she will not permit him to be alone at home.

Legal Prejudice Arising from a Much-Delayed Trial in Terms of Employment Opportunities

It will suffice to refer briefly to R. v. W. (A.J.), 2009 ONCA 661, at para. 46: "[46] In considering whether the delay was unreasonable, regard must also be had to the prejudice to the respondent … there was abundant evidence of the toll the delay had taken on the respondent in terms of lack of access to his daughter, lost employment opportunities …"

Findings as to the Claimed Prejudice Respecting Educational Opportunities

On the record before the Court, no weight is assigned to this suggested claim of actual prejudice in the case of Mr. Nowak. As for Mr. Sauve, it must be made clear that if he appeared during a job interview as he did when testifying; it is quite unlikely that he would be hired, irrespective of the outstanding charges. The witness appeared quite depressed, as a layman might perceive and express it, and it is doubtless his lack of drive and direction, which has denied him an aura of "employability". In other words, if his psychological state is tributary in any large degree to the delays encountered in this prosecution, then the trial delays have cost him dearly in terms of securing work.

Prejudice – Harm and Prejudice in Terms of Stress and Anxiety

The Factual Submissions for Mr. Nowak

Mr. Nowak's affidavit is replete with comments suggesting that the delays in this case have brought about a signal degree of actual prejudice. Mr. Nowak noted firstly that he arrested and released on a promise to appear with an undertaking to a police officer that included in his case, but not Mr. Sauve for whatever reason, a no alcohol condition. Both accused were also subject to a 10:00 p.m. to 6 a.m. curfew, requiring them to be in their respective residences, subject to exceptions for work and education.

Mr. Nowak drew attention to this "no-alcohol, no going out" clause, before addressing anxiety in general, and voiced his displeasure that he was the subject of a significant deprivation of liberty in light of his young age and wish to socialize freely. He added that the limitation on drinking was embarrassing and limited his social life. Later on, Mr. Nowak deposed that the no-alcohol restriction was lifted subsequent to his 19 th birthday. Further, that he did not assert that he sought changes to his curfew situation.

Thereafter, Mr. Nowak discussed in fair detail his levels of stress, anxiety, lack of sleep, and insisted on the fact that these symptoms have gotten worse over time, conceding that the existence of the accusations would have contributed to his need for medical assistance and medication. I refer to para. 10 in particular.

Mr. Nowak's Testimony

The question of the accused person's need for medication, his stress and anxiety and the exacerbation resulting from undue delay, were not emphasized during his testimony that was consumed with discussing Facebook accounts of his good moments. I did not lose sight of the fact that Mr. Nowak insisted that he was suffering, but that he put up a brave face.

The Factual Submissions for Mr. Sauve

Mr. Sauve's affidavit sets out at para. 2 that he was hardly 18 years of age when the incident is alleged to have occurred and that as a result of the delays his curfew conditions resulted in a quite poor social life whilst in College and since, at age 20. Further, that although he has studied successfully and maintained two jobs, his health has been greatly and adversely affected. As noted at para. 11(e), the mental toll exacted by the charges and the delays has been significant and he is now a recluse, depressed, not eating well and unable to rest adequately and, most of all, Mr. Sauve is fighting suicidal thoughts.

Mr. Sauve's Testimony

As noted earlier, Mr. Sauve impressed me as quite depressed and I am not of the view that he is capable, at present, of impressing a potential employer by reason, it seems, of stress and anxiety. Mr. Sauve explained in detail his sense of hopelessness and I found him to be credible and reliable.

Ms. Carpenter's Affidavit and Testimony

Mr. Sauve's mother expressed clearly that her son is acting in such a way that justifies her belief that he ought not to be left home alone, not from a fear that he might breach, but rather from a justified perception that he is depressed.

Legal Prejudice Arising from a Much-Delayed Trial in Terms of Stress and Anxiety

In light of the fact that there are so many cases on this subject, as made plain in the authorities cited by both defence counsel, I will restrict myself to the best known passage making plain that "security of the person" as part of the "prejudice analysis" focuses on the stress and anxiety arising from the fact of the charges and their duration.

The language found below, taken from para. 30 of R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, consigns the unanimous views of the Court on this subject:

[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, [1992] 1 S.C.R. 771 at pp. 801-3. [Emphasis added]

Findings as to the Claimed Prejudice Respecting Stress and Anxiety

Starting with Mr. Nowak, on the record before the Court, some weight is assigned to this claim of actual prejudice in that I do not doubt that Mr. Nowak did consult Dr. Armstrong and has been taking prescribed medication by reason of actual stress and anxiety that has been made worse by the delays encountered in this case. Mr. Nowak fairly conceded that there are other contributing factors to his medical situation, and the issue is whether it is the delay which he has encountered, as opposed to the fact of being charged, which has resulted in an objective situation of harm of some notable degree which would not have arisen had the trial proceeded much earlier.

I note as well that Mr. Nowak has succeeded in putting on a brave face and that he may genuinely be suffering though he was able to "faire bon visage malgré mauvaise fortune". However, I cannot find that the evidence demonstrates that he is any appreciably worse off in his degree of stress and anxiety than had he undergone trial sooner. Mr. Nowak faces a number of quite serious charges involving many persons who live in his close–knit neighbourhood and school community, as made plain by the number of bail variations sought in respect of work mates of Mr. Sauve, and the testimony of both accused in general, and I find that the lion's share of the stress and anxiety arises from the fact of being charged, and only a modest portion from the delays he has experienced. A trial within 8 to 10 months of delay, after intake and including defence preparation, would not have been appreciably less taxing on his system. In addition, he might have been somewhat less stressed earlier on when this was a "one witness ID case" which was no doubt far from strong from the prosecution's perspective.

Returning finally to the "complexities" comment, I am unsure of what was meant, as noted, but I do not discount the possibility of added stress now that two youthful confederates, as alleged, have pleaded guilty and are supposedly available at this late stage to be added to the Crown's arsenal of weapons with which to prove the case.

Drawing attention to Mr. Sauve's claim of actual prejudice by reason of stress and anxiety, due to the undue delay in setting the trial and, of course, in having the trial held, I am of the view that the claim is not fully made out. I am not to be understood to have found that no harm or prejudice is being experienced, far from it. But I cannot find that the stress and anxiety which is being experienced, a finding I make notwithstanding the absence of a clear medical diagnosis and the presence of a medical practitioner to alleviate the harm being endured, is due largely or at least equally by reason of the trial delays, as opposed to the objective fact that Mr. Sauve has been charged with a number of quite serious accusations in what Mr. Sauve himself described at para. 11(f) as a small community, and that they have yet to be tried.

In this vein, Justice Laskin wrote the judgment of the Court in the case of R. v. Roncaioli, 2011 ONCA 378, on behalf of Armstrong and LaForme JJ.A. Paragraph 31 is of assistance in this vein: "The trial judge's finding that the appellant was only marginally prejudiced by the delay was reasonable. The appellant did not testify on the s. 11(b) motion. His bail conditions were not onerous. Moreover, although the appellant's doctor testified about his depression, the doctor acknowledged that the depression was due to many factors, of which the delay was but one, and was managed quite well with anti-depressant drugs."

Prejudice – Harm and Prejudice in Terms of Stigmatization

The Factual Submissions for Mr. Sauve

It will suffice to paraphrase the comments consigned at para. 11(f) to the effect that neighbours have ignored him and described him as a criminal.

Legal Prejudice Arising from a Much-Delayed Trial in Terms of the Stigma Resulting from the Criminal Accusations

I begin by reference to para. 34 of R. v. Austin, 2009 ONCA 29, a judgment signed by O'Connor A.C.J.O. who wrote:

[34] As to prejudice, the trial judge agreed with the Crown's submission that there was no trial fairness prejudice. He did find, however, that there was actual prejudice to the respondents' rights to security of the person. Adopting the language of Lamer J. in R. v. Mills, [1986] 1 S.C.R. 863, at pp. 919-20, he stated that "[s]ecurity of the person recognizes the stigmatization, loss of privacy, and stress and anxiety created by criminal proceedings."

In addition, it is of assistance to quote from Justin Laskin who guides us as to the purposes of s. 11(b) at para. 8 and para. 9 of R. v. Qureshi:

[8] Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin, (1992), 71 C.C.C. (3d) 1 (S.C.C.) at p. 12. [Emphasis added]

[9] Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. See R. v. MacDougall, (1998), 128 C.C.C. (3d) 483 (S.C.C.) at p. 496.

Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. [Emphasis added]

Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. [Citations omitted.]

The cases make plain the obvious belief that stigmatization increases with the length of delay. In this vein, note again that Justice Rosenberg wrote in R. v. W. (A.J.), 2009 ONCA 661:

[46] In considering whether the delay was unreasonable, regard must also be had to the prejudice to the respondent. The trial judge found actual prejudice to the respondent's security interests and I have not been persuaded that his findings in that regard were unreasonable. To the contrary, there was abundant evidence of the toll the delay had taken on the respondent in terms of lack of access to his daughter, lost employment opportunities, increased legal fees and stigmatization. Actual prejudice to the respondent's security interests is an important factor in this case. There was, however, no suggestion of prejudice to the respondent's fair trial interests or his ability to make full answer and defence. Admittedly, the presence of that type of prejudice is not always required for a finding that section 11(b) has been violated: see Godin, 2009 SCC 26, at para. 38. [Emphasis added]

I am of the view that prejudice will normally arise from the fact that one is charged, and it may increase, but it need not, due to subsequent delay. R. v. McLellan, 2012 ONCA 717, a decision of Rosenberg, Blair and Tulloch JJ.A., includes these remarks at para. 16:

[16] [...] The application judge was correct in her characterization of the delay and I agree with her decision to dismiss the s. 11(b) application [...] her finding that any prejudice suffered by the appellant was as a result of being charged and not due to subsequent delay was reasonable. [Emphasis added]

Prejudice in Terms of the Fair Trial Interest

Since almost nothing was raised in this regard, I will content myself to suggest that I found little by way of actual impairment to the right to a fair trial. The guidance I derive from the cases is that in terms of the fair trial interest, a finding that the accused's right and ability to make full answer and defence has not suffered impairment is not an obstacle to a stay otherwise meritorious. In short, it is not a condition precedent to a stay. Nevertheless, I see no obstacle or even an impediment to a fair trial.

In R. v. W. (A.J.), 2009 ONCA 661, para. 49 reads: "There are some important distinguishing features in this case [...] Finally, in this case, unlike Godin, 2009 SCC 26, there was no finding of actual prejudice to the respondent's fair trial interests. While the credibility of witnesses may well be a central issue in this case, it is difficult to see how, in the context of allegations of historic sexual assault occurring over a 12 year period, the delay, especially the delay occasioned by the last two adjournments, could significantly impact on this issue." [Emphasis added]

The Panel had noted earlier, at para. 46:

[46] In considering whether the delay was unreasonable, regard must also be had to the prejudice to the respondent. The trial judge found actual prejudice to the respondent's security interests and I have not been persuaded that his findings in that regard were unreasonable. To the contrary, there was abundant evidence of the toll the delay had taken on the respondent in terms of lack of access to his daughter, lost employment opportunities, increased legal fees and stigmatization. Actual prejudice to the respondent's security interests is an important factor in this case. There was, however, no suggestion of prejudice to the respondent's fair trial interests or his ability to make full answer and defence. Admittedly, the presence of that type of prejudice is not always required for a finding that section 11(b) has been violated: see Godin, 2009 SCC 26, at para. 38. [Emphasis added]

In this case, as noted, there is little even by way of suggestion to the effect that any real impairment of the right to make full answer and defence is compromised though one should always, as I do, infer that memories will be undermined. In this case involving one identification witness, leaving aside the potential role of the youthful co-accused who pleaded guilty in December of last year, the loss of memory will assist the defence, all things being equal.

Additional Instruction from the Case Law

In the case of R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, Cromwell J. observed on behalf of the unanimous Court: "[41] Of course, there is a strong societal interest in having serious charges tried on their merits. However, the progress of this case was delayed to such a degree that the appellant's constitutional right to be tried within a reasonable time was violated […]"

Cromwell J. addressed the issue of delayed trials possibly resulting in a denial of justice by reason of the impairment of the quality of evidence at para. 40 of R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, on behalf of the Court:

[40] As McLachlin J. (as she then was) put it in her concurring reasons in R. v. Morin, [1992] 1 S.C.R. 771, at p. 810, "[w]hen trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice." [Emphasis added]

To be precise, the Court did not express itself in categorical terms. It did not state: "when trials are delayed, justice will be delayed". It indicated that this might be the result. The Court must exercise its best judgment in order to ascertain whether, in fact, the delays have resulted in the denial of justice. In the course of exercising its judgment, attention must be drawn to the question of the quality of the evidence especially whether, in fact and to what extent, witnesses may have forgotten, leaving aside whether the search for the truth within the adversarial system has been compromised by the loss of witnesses.

Para. 39 of R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, records these remarks of Justice Cromwell J. on behalf of the unanimous Court:

[39] This was not a complex case. A delay of 30 months in bringing it to trial is striking, given that the delay was virtually entirely attributable to the Crown or institutional delay and was largely unexplained. Critical evidence was disclosed some nine months after the tests which produced it, the appellant's request for earlier dates was ignored, and when the case was clearly in s. 11(b) trouble, the matter was not proceeded with on the date set for the long-awaited preliminary hearing. The length of the delay and the evidence supported the trial judge's inference that some prejudice to the appellant resulted from the delay. [Emphasis added]

In this instance, it is important to point out that the delays are all explained save for the period between early February and mid-May in respect to the interview of the so-called identification witness.

The above noted passage also discusses the importance of a defence request for an early date which may be of signal importance, in accordance with the circumstances.

It is obvious why such a negative finding would count heavily against the prosecution in that the defence had made plain that it would hold the prosecution's "feet to the fire", so to speak, in terms of the duty to ensure a trial within a reasonable period of time. In this vein, note the language consigned at para. 27: "… defence counsel … complained about the long delay to the first date set for the preliminary inquiry and provided 31 earlier dates on which he was available…" This is not our situation.

I note as well that the passage which follows, from para. 30 of R. v. Godin, 2009 SCC 26, guides us in our understanding that "Security of the person" is part of the "prejudice analysis": the Court must focus on stress and cloud of suspicion arising from charges:

[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, [1992] 1 S.C.R. 771 at pp. 801-3. [Emphasis added]

Finally, in R. v. Khan, 2011 ONCA 173, para. 70 reads as follows:

[70] However, the circumstances in this case are very different from those in Godin. In this case, the Crown was not responsible for the mistrial and therefore was not responsible for the delay resulting from the need to re-schedule the trial date. No periods of delay were attributable to the conduct of the Crown. Furthermore, although the application judge found that this was not a case where the defence was impeding the trial's progress, the defence appeared to be content with the pace of this litigation until the mistrial was declared. Finally, it is clear that the Crown, mindful of the issue of delay, made every effort to find an early trial date and advised that the Crown witnesses were available at any time. [Emphasis added]

Conclusion

The endorsement signed by Winkler C.J.O., Goudge and Watt JJ.A. in R. v. Hengeveld, 2010 ONCA 60, includes these remarks: "[7] Even if we were to cede to the applicant for these purposes that there appears to be an error in the summary conviction appeal court judge's tally and/or characterization of a 35-day time period, in the final analysis, this is not a close case under s. 11(b). This is not a case at the tipping-point of unconstitutional delay [...]" In the same manner, even if I were to divide the neutral period of time in half and assign one portion to the Crown's side of the ledger, this serious multi-witness trial is not at the tipping point either.

This is not a case in which any blame lies upon defence counsel – it is an example of the proceedings following the pace that the parties thought fit in the circumstances in an effort to obtain a withdrawal of all of the accusations. By way of contrast, in the course of a brief appeal book endorsement styled R. v. Michelutti, 2010 ONCA 98, Sharpe, Simmons and Epstein JJ.A. remarked: "[2] Whatever systemic problem existed as to production of 911 tapes, it was incumbent upon the trial judge to assess the causes for delay at each stage of the proceedings in the manner described by the jurisprudence. He failed to do so and simply assumed that the entire 15 month delay could be properly attributed to the systemic problem." The Court added at para. 3: "We agree with the careful and thorough reasons of the summary conviction appeal judge who did examine the causes for delay at each stage and concluded that at least part of the delay was properly attributed to defence counsel's failure to respond to Crown requests for clarification as to precisely what further disclosure was required." The stay was set aside. In this instance, unlike in the case noted above, what occurred involved proper tactical decisions.

The endorsement by MacPherson, Armstrong and Pepall JJ.A. in the case of R. v. Stephen, 2012 ONCA 411, includes these remarks at para. 7: "The application judge attributed some of the responsibility for defence counsel's delay to the failure of the Crown to take a more aggressive stance to move the case forward. While we agree that the ultimate responsibility to move the case forward rests with the Crown, we are not persuaded that the Crown should be required to take responsibility for … defence counsel. Defence counsel are the agents of their clients …" [Emphasis added]

R. v. Wong, 2012 ONCA 286, an endorsement of Rosenberg, Armstrong and Juriansz JJ.A. provides helpful guidance in this case. As we read at para. 5:

[5] [...] We cannot leave this case without noting one troubling aspect of this case, however. As we have said, the focus of the appellant's complaints were around the delay after the preliminary inquiry could not be completed within the original time allotment. However, it was the fact that those original dates were set almost a year after the parties were ready to set a date for the preliminary inquiry that put this case in jeopardy. It was this very limited capacity in the Ontario Court of Justice to accommodate a two-day preliminary inquiry that posed the greatest challenge to the system. And it was only because the overall delay in both the Ontario Court and the Superior Court of Justice was not unreasonable that this case was not stayed. It is troubling that 30 years after proclamation of the right to a speedy trial, that right remains precarious in some jurisdictions. [Emphasis added]

In the final analysis, I adopt as a fitting conclusion the passage found below, from the case of R. v. Darwish, 2010 ONCA 124, at para. 59: "Having regard to the total elapsed time, the explanations for the various delays, the relative complexity of the case and the public interest in a trial on the merits, but also bearing in mind the allegations of prejudice put forward on behalf of the respondent, I do not think that the respondent has made out a violation of s. 11(b)."

The application to stay the proceedings by reason of a breach of s. 11(b) of the Charter is dismissed.

Gilles Renaud Ontario Court of Justice

February 6, 2013