Court File and Parties

Court File No.: Toronto 12000789/2010

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shane Rutherford

Before: Justice Paul H. Reinhardt

Heard on: 29 August, 12 & 13 September 2013

Reasons for Judgment released on: 14 November 2013

Counsel:

Sarah De Filippis & Eva Flynn .................................................................................. for the Crown

The accused Shane Rutherford ................................................................................ on his own behalf

REINHARDT J.:

Charges

[1] Shane Rutherford is charged that he did, on or about 16 January 2010, in the City of Toronto in the Toronto Region, operate a motor vehicle:

(1) While his ability to operate a motor vehicle was impaired by alcohol or a drug; and further,

(2) Having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood;

Contrary to the Criminal Code

Application

[2] In this proceeding he has brought an application, dated 8 August 2013, seeking a stay of these proceedings on the basis that his right to be tried within a reasonable time has been breached, contrary to ss. 11(b) of the Canadian Charter of Rights and Freedoms ("the Charter").

[3] The Crown has resisted this application, and filed a Factum that argues that there has been no delay that can be attributable to the Crown, and further that there has been no prejudice to Mr. Rutherford based upon the time lapsed to the date of trial, now scheduled for 28 & 29 November 2013.

[4] The application was heard by this court on 29 August and 12 & 13 September 2013.

[5] I have concluded that the application must fail, and these are my reasons.

1: Brief History of the Proceedings and Findings of the Summary Conviction Appeal Court ("SCA")

[6] In January 2010 Mr. Rutherford was charged with impaired driving and drug offences. In September 2011, 20 months later, a stay of proceedings was entered based on a violation of Mr. Rutherford's s. 11(b) Charter rights. The stay was entered on the third trial date. The previous two trial dates were adjourned at the request of Mr. Rutherford. The trial judge found that a seven-week delay in disclosure between June and July 2010 was attributable to the Crown and was unreasonable. Mr. Rutherford had requested various historical records regarding operation and maintenance of the instrument used in the breath sample testing. In August 2010 the drug charge was withdrawn by the Crown after receipt of an analyst's report dated March 2010. In September 2010, following a judicial pre-trial, the parties scheduled a full-day trial for March 2011. One month later, defence counsel asked to be removed. Mr. Rutherford sought and obtained new counsel. A s. 11(b) motion scheduled for January 2011 was adjourned to the trial date at the request of the newly retained counsel. A further adjournment to July 2011 resulted from failure to file the s. 11(b) motion in timely fashion and the fact that Mr. Rutherford's counsel had yet to be called to the bar and was thus incapable of conducting the motion and trial. A further adjournment to September 2011 was necessitated by missing transcripts. On 28 September 2011, Mr. Rutherford was granted a stay of proceedings. The Crown appealed the decision of the trial judge to the SCA.

[7] On 24 May 2012, the Crown's appeal was allowed and a new trial ordered. The SCA Court held that the trial judge erred in the characterization of the delay and in the finding of actual prejudice to the accused. The SCA Court found that the delay in disclosure resulted from a good faith dispute concerning the relevance of the records. The SCA Court held that the trial judge's findings that the Crown handled the request responsibly, pragmatically, and in keeping with its normal practice for such requests meant that, in law, it was not open to the trial judge to hold that the Crown had caused the delay. The SCA Court therefore found that the seven-week delay was part of the case's inherent time requirements. The appeal court further held that trial judge further erred in characterizing the one month delay for the judicial pre-trial as institutional rather than inherent delay. In addition, the SCA Court found it was erroneous to characterize the period between September 2010 and March 2011 as systemic delay, as the delay resulted from Mr. Rutherford retaining an articling student as counsel who was unprepared and unable to proceed on the scheduled dates. The SCA Court found that the evidentiary record did not support the finding that the delay had hindered Mr. Rutherford's chosen representative's opportunities and caused Mr. Rutherford's impecuniosity. The SCA Court further found that any inference of prejudice had been ameliorated by Mr. Rutherford's own conduct. In the result, the SCA Court found that there were no periods of unreasonable delay and no basis for finding a breach of Mr. Rutherford's s. 11(b) Charter rights.

[8] Mr. Rutherford made his first post-appeal appearance on 25 June 2012. Following this initial appearance there were a number of adjournments necessitated by Mr. Rutherford's need to seek Legal Aid culminating in Mr. Rutherford's failure to appear on 23 August 2012, at which time a discretionary warrant was issued.

[9] Mr. Rutherford did appear on 30 August 2012 and initially requested "trial accommodation" in the form of the transcription of the officer's notes because of his inability to read "cursive" script due to his eye condition. Although the Crown was prepared to set the matter down for trial, the Crown agreed to a further adjournment to permit transcription, prior to setting the matter down for trial, which as available on the third date after the request, and the matter was then placed before Justice Harris for a judicial pre-trial.

[10] On 5 December 2012 a judicial pre-trial was held before Justice Harris, at which time a number of trial issues were clarified. Mr. Rutherford gave notice that he would be bringing a second section 11(b) Charter application for "unreasonable delay" and that he would be calling a toxicologist and making a further Charter application at the trial, based upon the functioning of the intoxiliser. The trial time was estimated to be two days. Finally, a further "trial accommodation" request was made by the defendant, this time for "real time transcription" of the proceedings.

[11] On this date an 11(b) motion date and two trial dates were set for early spring of 2013. An interim date was set at Mr. Rutherford's request to monitor the trial accommodation issues.

[12] On the next court date, Mr. Rutherford did not attend, and the Crown expressed concern that the new 11(b) application was not yet perfected, despite the date for the hearing of the new 11(b) motion being only one month away.

[13] On the date of his non-appearance, the Court issued an order for Mr. Rutherford's arrest, and vacated the 11(b) application date and the two trial dates.

[14] On 14 February 2013, the arrest warrant for Mr. Rutherford was executed, and a new judicial pre-trial was sought by the Crown, to clarify the status of the various trial issues still outstanding. On his first court appearance, Mr. Rutherford requested a week adjournment to prepare for the pre-trial.

[15] On 14 March 2013 the matter came before Justice Boivin and Mr. Rutherford advised that he had not been able to order any of the transcripts as required for his 11(b) application due to the $50 deposit requirement for each transcript, which he found very onerous. He also indicated that he would be able to accommodate a Crown & defence agreement on "live-streaming" of the proceedings on his laptop, which was formatted to produce enlarged text, and that he would work on the transcript orders for the next court date.

[16] On 14 March 2013, Justice Boivin seized himself with the management of the case until the date for the 11(b) and trial could be set, and the matter was further adjourned to 20 March 2013 for a further hearing to finalize the accommodation arrangements.

[17] On 20 March 2013, Justice Boivin was sick and unable to conduct the pre-trial meeting, and the matter was further adjourned to 4 April 2013, before Justice Boivin.

[18] On 4 April 2013, Mr. Rutherford advised the court that through his meeting with Mr. Craig Legere in the Court Reporter's office, a reduced total fee of $406.00 had been arrived at for the necessary transcripts, and he was able to make all the orders on that basis. He also advised that the exact terms of the accommodation were still being worked out with Mr. Roman Haruk of the court services office, and that he felt this new delay should be considered for purposes of his 11(b) argument.

[19] The accommodation agreement and the completion of the transcripts became the main focus of three further court dates: 18, 26 & 29 April, at which time dates were set to hear the 11(b) application on 29 August 2013, with the trial to be heard on 12 & 13 September.

[20] With regard to the accommodation agreement, Mr. Rutherford advised the court on 18 April 2013 that he had met with Mr. Haruk, and the details of a "live stream" to his computer had been finalized to his satisfaction, and he expressed his appreciation to Mr. Haruk for his efforts in this regard.

[21] The matter was further heard on 10 July 2013, before Justice Khawly, regarding Mr. Rutherford's inability to complete his 11(b) Factum thirty days prior to the return date of the application, 29 August 2013. Justice Khawly granted Mr. Rutherford's request to extend the time for him to serve and file his materials to the 8th of August 2013.

[22] As stated above, Mr. Rutherford prepared materials and written application on 8 August 2013 and he also provided an Affidavit sworn 12 August 2013.

[23] I heard both argument and evidence over three days, 29 August and 12 & 13 September 2013.

[24] Mr. Rutherford, in his affidavit and testimony on 12 September described prejudice in six distinct categories:

(1) Stigma;

(2) Anxiety;

(3) His memory and ability to recall evidence due to the passage of time;

(4) Loss of educational opportunity;

(5) Potential loss of witnesses;

(6) Timeliness of the provision of disability accommodation.

2: The Legal Framework

[25] The law with respect to section 11(b) is found in R. v. Morin (1992), 1 S.C.R. 771; 71 C.C.C. (3d) 1 (S.C.C.) The factors to consider are:

1. the length of the delay;

2. waiver, if any, of time periods;

3. the reasons for the delay, including

   a. the inherent time requirements of the case;

   b. the actions of the Crown;

   c. the actions of the accused;

   d. the limits on institutional resources;

   e. other reasons for the delay; and

4. prejudice to the accused.

[26] The decision by Justice Michael Code in the Superior Court of Justice in this province in R. v. Lahiry 2011 ONSC 6780, cited with approval in the Superior Court of Justice by Justice Ian MacDonnell in R. v. Beteta-Amaya [2011] O.J. No. 5136 and in the Ontario Court of Appeal by Madam Justice Janet Simmons on 12 January 2012 in R. v. Tran (2012) ONCA 18, has clarified a particular area of this legal framework, the proper calculation of systemic or institutional delay. This becomes particularly important in the case at bar, where Justice Code sat as the SCA Court judge on the appeal from the initial 11(b) stay ruling in this case, and allowed the Crown appeal after making a multitude of findings of fact, which are binding on this court (Please note my earlier oral ruling on the legal principle of stare decisis and the impact of Justice Code's ruling on this case.)

[27] In the four cases under appeal before Justice Code, in Lahiry, the trial judges characterized the entire period from the set date appearance to the trial date as systemic or institutional delay. As stated by Justice Code, in paragraph 2 of his decision in Lahiry:

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

[28] In this proceeding, as stated above, in the initial trial, the trial judge ruled on 28 September 2011 that Mr. Rutherford's 11(b) Charter rights had been breached, and stayed the proceeding.

[29] On 24 May 2012, Justice Code, sitting in appeal of the trial judge in his role as a judge presiding in the Summary Conviction Appeals Court, set aside the ruling of the trial judge and ordered a new trial.

[30] In so doing, Justice Code made the following findings of fact & law with respect to the time periods of delay alleged by the representatives for Mr. Rutherford in the first trial, starting at paragraph 45 of his judgment:

45 There are three distinct circumstances in the present case which infer that the Respondent was never ready to proceed with his trial at any point in this five and a half month period. First, his counsel never asked for the earliest available date and never suggested that he had earlier dates available in his calendar. The record is silent on this point. Second, Rutherford discharged his counsel within a month of setting these dates and indicated that he was in the process of retaining new counsel to represent him on the already scheduled dates. Third, it took Rutherford over two months to retain new counsel, who was an articling student, and that new counsel was unable and unprepared to file the s. 11(b) Motion prior to either the January 5, 2011 or the March 11, 2011 scheduled dates.

46 In these circumstances, it is apparent that the Respondent needed all of this five and a half month period, and more, to properly retain new counsel who could appear for him on a trial date and he also needed time to prepare and file a proper s. 11(b) Motion Record and Factum. The Respondent was simply not "ready to proceed" at any point during this period and so systemic delay never commenced as a cause of any of the delay. I would characterize the delay as neutral, and due to the inherent time requirements of the case, as Rutherford was retaining counsel and was preparing his pre-trial Motion throughout this period. See: R. v. Lahiry (2011), 109 O.R. (3d) 187 at para. 60 (S.C.J.).

47 In conclusion on this ground of appeal, none of the three disputed periods of time carried any weight in the s. 11(b) analysis. They were all neutral due to the inherent time requirements of the case.

[31] He further disagreed with the trial judge's findings regarding actual prejudice, and provided, as the SCA Court Justice, the following analytic legal framework and factual findings in the case:

52 As I read the above reasons, the trial judge found actual prejudice to the Respondent's security of the person interests in the specific form of "financial pressure and loss of volunteer opportunities". She found that these forms of prejudice were "the direct consequence of delays".

53 I agree with the Crown that there were palpable and over-riding factual errors in the above findings. First, the finding that the Respondent "could not volunteer as a companion sailor or fundraise with people with physical and mental disabilities because of the drug charges" was not accurate. I have already summarized the evidence on this point. In fact, the Respondent did not even begin to volunteer and to fundraise for this particular Association until the summer of 2010, that is, well after the charges had been laid. The evidence was that he carried on with these activities throughout the 2010-2011 time period, without any apparent impairment. Furthermore, the impact of the delayed withdrawal of the drug charge appears to have been non-existent. The only prejudice the Respondent claimed was that he did not run for the Board of Directors of the Association because of his concern that questions might be asked about his suitability. He agreed that this concern related to both the drug charge and the impaired driving charge. Furthermore, he believed that the election to the Board was not until "the fall" of 2010, that is, after the drug charge had been withdrawn at the end of August, 2010.

54 Once the facts are properly understood, there was no evidence that the Respondent suffered any "loss of volunteer opportunities" or that the failure to withdraw the drug charge at an earlier date had impaired his volunteer activities in any way.

55 The second area where the trial judge erred, in her appreciation of the facts relating to the claim of prejudice, was in her findings concerning the $10,000 retainer that Rutherford had paid to his first counsel. The trial judge found that Rutherford was "too impecunious to order transcripts". She held that this state of impecuniosity came about due to circumstances tied up with delays in the case which had exhausted the initial $10,000 retainer. For convenience, I will repeat her findings on this point:

The retainer he paid his first lawyer, which was supposed to cover the trial. To use Mr. Rutherford's expression, "it got eaten up" because his lawyers had to work very hard to obtain the additional disclosure, the numerous communications with the Crown, court appearances, disclosure review and consulting with experts, which has used up the retainer.

56 In fact, the evidence on the s. 11(b) Motion was to the effect that the initial $10,000 retainer was not "used up" or "eaten up". The first lawyer advised Rutherford that the retainer was sufficient to complete the s. 11(b) Motion, scheduled for January 5, 2011. It was only insufficient to conduct both the s. 11(b) Motion and the one day trial, scheduled for March 11, 2011, in the event that the s. 11(b) Motion was unsuccessful and the case had to proceed to trial. The evidence was also to the effect that Rutherford managed to find an additional $4,000 to pay for his defence in the case, as he testified that he had expended a total of $14,000. Finally, it was never established whether any part of the retainer had been expended on defending the drug charge, prior to its withdrawal. It will be recalled that the drug charge was withdrawn prior to the judicial pre-trial and prior to setting any dates for trial.

57 In light of the above factual record, there was no evidence that the Respondent was too impecunious to order transcripts for the s. 11(b) Motion, or that his initial retainer of counsel was "eaten up" and "used up" by the delays, or that the failure to quickly withdraw the drug charge caused "financial pressure". The evidence indicated that the Respondent had $14,000 available, for purposes of his defence, and that he made normal cost-benefit decisions and choices as to how to expend it in the conduct of that defence.

58 Aside from the above factual errors relating to the finding of prejudice, the trial judge made a legal error. She stated the following in her conclusion on the issue of prejudice:

Mr. Rutherford has suffered real prejudice. He has also been diligent right from the outset about pursuing his rights. He had counsel retained by his second appearance. His first counsel went about very diligently pursuing disclosure. Despite his impecuniosity's, Mr. Rutherford found a second counsel. ... I also appreciate that I must consider the entire delay. [ Emphasis added ].

59 In effect, the trial judge looked only at the Respondent's conduct during the early stages of the proceedings, in finding that "he has also been diligent ... about pursuing his rights". Had she considered his conduct throughout "the entire delay", as she was obliged to do, she would have concluded that he was not diligent. Hryn J. stated during the January 5, 2011 proceedings that Rutherford's failure to retain new counsel in a timely way and his failure to proceed with the s. 11(b) Motion raised inferences as to whether "he was always intent on having a speedy trial". This inference became overwhelming when Rutherford was also not ready to proceed on either of the March 11, 2011 or July 7, 2011 scheduled trial dates.

60 The law on this point is summarized in R. v. Lahiry, supra at paras. 76-85, based on the principles that emerge from R. v. Conway (1989), 49 C.C.C. (3d) 289 (S.C.C.), R. v. Askov et al (1990), 59 C.C.C. (3d) 449 (S.C.C.), and R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.). In summary, the Respondent caused substantial periods of delay for his own purposes and so the normal inference of prejudice was negatived.

61 Absent the trial judge's factual errors on the issue of prejudice, and after properly applying the above legal principle relating to prejudice, I am satisfied that the claim of actual prejudice in this case was either very weak or non-existent. There was also no inferred prejudice as there were no periods of unreasonable or unjustified delay.

D. CONCLUSION

62 I am satisfied that there were no periods of unreasonable delay in this case, that is, there was no delay caused either by the Crown or by institutional congestion. I am also satisfied that there was little or no prejudice to s. 11(b) interests. There was also a strong societal interest in a trial on the merits as the particular circumstances of the alleged offences were quite aggravated. Accordingly, there was no basis for finding a violation of s. 11(b) of the Charter.

[32] It is trite law that whether or not I agree with Justice Code's analytic framework and findings, above, the legal framework he provides is authoritative and binding on this court, and for the factual period discussed in Justice Code's ruling his findings apply to the facts in this case, and are binding on this court. I am also bound by the legal reasoning set out by Justice Code in Lahiry, based upon the principle of stare decisis.

2.1: The Relevant Principles as they apply to the case at bar following its return for the new trial

2.1(a): The Time Period of 25 June 2012 to the present

[33] I agree with the Crown submission and find as a fact that at all material times, the Crown in this proceeding, since the case arrived back at Old City Hall for a new trial, has shown due diligence in attempting to accommodate Mr. Rutherford's special needs due to his disability, with respect to the provision of enhanced disclosure and "live stream" transcription of the proceedings in the courtroom, while the case is proceeding through the 11(b) application and the trial. As a result, the time needed to prepare the enhanced disclosure and arrange for the "live stream" are "neutral" in the calculation of delay and form part of the "inherent time requirements" of this case for Mr. Rutherford, a now unrepresented individual with multiple disabilities.

[34] I also agree with the Crown submission that there have been some delays that must be attributable to the actions of Mr. Rutherford. For example, as noted above, on 24 January 2013, because of his non-attendance, the new dates for his second trial in provincial court, of 4 March 2013 (11(b) application) and 1 & 2 May (trial) were vacated when a bench warrant was issued, and thus, in my view, cannot be attributed to institutional delay. (This is discussed in Lahiry and also in Justice Code's findings in this case, in his appeal ruling.)

[35] For the above reasons, I agree with the Crown and find that the delay in these proceedings leading up to the hearing of this application, commencing on 29 August 2013 cannot appropriately be attributed to either institutional or Crown factors.

2.1(b): Prejudice

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

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

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

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

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

[37] An argument for additional prejudice resulting from the delay in this case is predicated on Mr. Rutherford's difficulties in representing himself while being subject to significant disabilities including his learning disability and visual impairment.

[38] In his testimony before me, and his affidavit of 12 August 2013, which was not contested by the Crown on this point, I learned from Mr. Rutherford that he has been the victim of a serious chemical fire that resulted in severe burns over his body and damage to his lungs. He has undergone in excess of 35 lengthy and complicated operations to remove scar tissue.

[39] Despite these factors, it is also the case that Mr. Rutherford, to his credit, has developed skills in computer science, telecommunications, sales, marketing and restaurant management, and has operated several restaurants and his family's pub.

[40] He testified before me that as a result of these charges before the court in January of 2010 he was unable to complete his studies at a Master's programme in the United Kingdom.

[41] Because of the fact that much of the time-frame covered in Mr. Rutherford's affidavit has already been dealt with by the SCA Court ruling by Justice Code, I will only refer to the time-frame since 25 June 2012, when the matter returned to this court, after the successful Crown appeal.

[42] In his factum and testimony, Mr. Rutherford refers to the following issues in arguing for a finding of actual prejudice:

• Stigma;

• Anxiety;

• His memory and ability to recall evidence due to the passage of time;

• Loss of educational opportunity;

• Potential loss of witnesses;

• The timeliness in the Crown provision of disability accommodation for Mr. Rutherford.

[43] In the limited time frame since 25 June 2012, I find that the "stigma" as set out by Rutherford in his affidavit and testimony can be attributed primarily to the existence of the charges, rather than to institutional factors.

[44] However, it is clear to me that the length of time that the matter has been before the court is well beyond the time found in most such cases, and in my view, this increases the "anxiety" factor for Mr. Rutherford, in a significant way.

[45] Because Justice Code dealt with the "loss of educational opportunity" submission, in his earlier ruling, with the facts fully set out before him, in my view I am bound by his findings on that point.

[46] With respect to the potential loss of material witnesses, based upon the evidence before me, Mr. Rutherford has made no efforts to locate additional witnesses, and therefore this has not been proven, in fact.

[47] I agree with Mr. Rutherford's submission that "memory loss" may be a factor for him in the trial, and the impact would appear to be interconnected to his disabilities, in this case. However, I am not prepared to find that this factor, on its own, is sufficient to give rise to Charter relief.

[48] I am led to this conclusion for some of the same reasons set out in Justice Code's ruling.

[49] In my view, it is clear that the Crown's diligent efforts at accommodating Mr. Rutherford's disabilities have properly required more time to proceed to trial, and that the time spend on accommodation of Mr. Rutherford's special needs is reasonable under the circumstances.

[50] Moreover, I further find that, due to Justice Code's findings on the issue of prejudice, as set out in paragraphs 52 to 60, I must accept Justice Code's specific finding that because Mr. Rutherford caused substantial periods of delay "for his own purposes…the normal inference of prejudice is negatived" in Justice Code's words:

60 The law on this point is summarized in R. v. Lahiry, supra at paras. 76-85, based on the principles that emerge from R. v. Conway (1989), 49 C.C.C. (3d) 289 (S.C.C.), R. v. Askov et al (1990), 59 C.C.C. (3d) 449 (S.C.C.), and R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.). In summary, the Respondent caused substantial periods of delay for his own purposes and so the normal inference of prejudice was negatived.

[51] In my view, this approach is applicable to the "memory loss" argument, as presented by Mr. Rutherford to me.

[52] As a result, after considering the details of the alleged actual prejudice referred to by Mr. Rutherford, and the delay factors which are properly attributable to Mr. Rutherford based upon the analytic legal framework and factual findings of Justice Code, on the initial appeal, I am not persuaded that there is actual prejudice within the meaning of Godin to justify any Charter relief.

[53] For these reasons, Mr. Rutherford's application herein is dismissed.

Released: 14 November 2013

Signed: "Justice Paul H. Reinhardt"