Court File and Parties

Court File No.: 12-01936 and 13-01750 Central East Region – Newmarket

Date: 2013-10-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

S.J.D.

Before: Justice Peter C. West

Heard on: September 9, 2013

Oral Judgment given: October 7, 2013

Written Reasons for Judgment released: October 31, 2013

Counsel:

• Ms. A. Barkin, for the Crown
• Mr. P. Connelly, for the accused S.J.D.

WEST J.:

Introduction

[1] On March 5, 2012, S.J.D. was charged with sexual assault and three counts of assault in relation to his wife, K.N.. The different offences were from dates in April 2011 to February 2012 (assault); August 2011 (assault); January 2012 (assault and sexual assault).

[2] A replacement information was laid March 7, 2013, at the request of the Crown, as a result of a decision not to proceed on the charge of sexual assault. The replacement information sets out four counts of assault, relating to the same time periods.

[3] The Applicant applies for an order staying the proceedings pursuant to s. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms. Where a defendant contends that he has not been tried within a reasonable time, the onus is upon him to establish the alleged violation of s. 11(b) of the Charter.

[4] Section 11(b) provides that:

Any person charged with an offence has the right to be tried within a reasonable time.

[5] The onus to satisfy me that there has been a Charter breach as alleged is upon the applicant on a "balance of probabilities".

Relevant Dates

February 18, 2012 Applicant charged, released on Promise to Appear.

March 6, 2012 First appearance, agent appeared for Peter Connelly, disclosure provided, matter adjourned for review.

March 13, 2012 Counsel appeared for Applicant. Matter adjourned to March 27, 2012. Crown pre-trial scheduled for March 19, 2012.

March 27, 2012 Counsel appeared for Applicant. Date set for judicial pre-trial: April 18, 2012.

April 18, 2012 Judicial pre-trial (JPT) conducted before Justice Peter Bourque. Matter adjourned to May 2, 2012.

May 2, 2012 Counsel appeared for the Applicant. Trial date, one day, set for September 11, 2012.

September 6, 2012 Matter brought forward by the Crown for an adjournment application because the complainant was not fit to testify due to mental illness. Mr. Connelly was in attendance. Application adjourned to trial date to obtain more information regarding the complainant's mental condition.

September 11, 2012 Crown produced letter from Dr. Khan, the complainant's psychiatrist, which explained she was not fit to testify due to mental illness. Mr. Connelly and Applicant were in attendance. Adjournment granted. Matter was adjourned to October 9, 2012 to allow the Crown to assess the situation at that point in time rather than setting a new trial date.

October 9, 2012 Mr. Connelly advised the Crown had not obtained an update as to the complainant's condition. No Crown was aware of what had been done, if anything, to determine the complainant's mental state. Matter was put over for a continuing JPT before Justice Bourque, the original pre-trial judge. The earliest date was November 14, 2012 at 2:15 p.m.

November 14, 2012 No Crown was prepared to do the continuing JPT. Mr. Connelly was in attendance. Matter adjourned to December 4, 2012.

December 4, 2012 Once again, no Crown was available to conduct the continuing JPT before Justice Bourque. Mr. Connelly was in attendance. Matter adjourned to December 14, 2012 for continuing judicial pre-trial.

December 14, 2012 Mr. Connelly attended for the Applicant. Transcript implies that the continuing JPT was finally held before Justice Bourque. Dates for third party records application and trial date set for March 11, 2013 and April 8, 2013, respectively.

January 11, 2013 Matter brought forward at request of Mr. Connelly to set additional day for trial, May 3, 2013, in addition to April 8, 2013. Further, January 23, 2013 set as date for a continuing JPT before Justice Bourque.

January 22, 2013 Mr. Connelly wrote letter to Ms. Gleitman, the original Domestic Crown who had conducted previous JPTs with Justice Bourque, to inquire whether a Crown would be available to conduct continuing JPT. Issue had arisen that Crown was resiling from their earlier position before Justice Bourque that they would be proceeding on an assault charge as opposed to the sexual assault charge. Ms. Gleitman did not respond to this letter.

January 23, 2013 Mr. Connelly sent another lawyer to speak to the matter as a Domestic Crown was not available for the continuing JPT. The matter was adjourned to February 7, 2013 for continuing JPT before Justice Bourque to resolve this issue as it affected the type and form of the third party records application.

January 25, 2013 Mr. Connelly wrote a further letter to Crown, Ms. Kim, who he had been advised would be the trial Crown. In his letter he requested Ms. Kim advise him of the Crown's position respecting whether the Crown intended to proceed on the charge of sexual assault. He advised that a continuing JPT was scheduled with Justice Bourque for February 7, 2013. Ms. Kim did not respond to Mr. Connelly's letter.

February 7, 2013 Transcript was not prepared, however, email from Brian McCallion, the new Domestic Crown, advised he had attended for the continuing JPT but Mr. Connelly was not present and he could not wait. Mr. McCallion advised in the email the Crown would not be proceeding on the charge of sexual assault but would be proceeding on a charge of assault. Mr. McCallion requested Mr. Connelly file his materials on the third party records application forthwith. He further advised that the complainant needed to be represented by counsel, which had not been done yet. Mr. Connelly served his materials on the third party records application pursuant to s. 278 because Crown had not responded to his previous letters. New date of February 28, 2013 set for continuing JPT before Justice Bourque.

February 28, 2013 Mr. Connelly appeared for the Applicant and advised there was no longer any need for a further JPT. Matter was adjourned to the third party records application date: March 11, 2013. Court was advised the Crown was having some difficulty finding counsel to represent the complainant for March 11, 2013, which was the week of March break.

March 11, 2013 Replacement information, sworn March 7, 2013, filed with court. Matter addressed before Justice K. Wright, no counsel available for March 11 to represent the complainant. Applicant is arraigned on replacement information No: 13-01750. Third party records filed with court and sealed. Third party records application adjourned to April 8, 2013 (2nd trial date) and a further date of May 2, 2013 was set for trial, together with May 3, 2013, set previously by Mr. Connelly to ensure the matter could be completed.

April 8, 2013 Matter traversed before Justice P. West, plea was struck, and the Applicant was arraigned on Information No. 13-01750 and pleaded not guilty. Mr. Connelly advised the third party records application was abandoned as no longer necessary. Court had been notified several weeks prior. Trial commenced, evidence of complainant completed. Trial adjourned to May 2, 2013.

May 2, 2013 The matter was unable to proceed because Justice West was unavailable due to a schedule misunderstanding.

May 3, 2013 The Crown, Ms. Barkin was ill and the matter was adjourned to October 7 and 8, 2013 for the continuation of the trial. Earlier dates in June and August offered but Crown not available until the fall.

June 20, 2013 Matter was addressed before Justice West for the purpose of setting a date for defence to bring s. 11(b) application, September 9, 2013.

Legal Framework

[6] 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.

[7] 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. The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures. When a trial takes place without unreasonable delay, with all witnesses available and memories are fresh, it is far more certain the guilty parties who committed the crimes will be convicted and punished and those that did not will be acquitted and vindicated.

[8] As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin, supra at p. 13. This applies not as a separate analysis of the 11(b) issue but is applied throughout the analysis. While society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that the trials for such offences are held in a timely fashion: R. v. Kporwodu, [2005] O.J. No. 1405 at paragraph 194.

[9] To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
   • (a) inherent time requirements of the case;
   • (b) actions of the accused;
   • (c) actions of the Crown;
   • (d) limits on institutional resources; and
   • (e) other reasons for delay; and
4. prejudice to the accused.

[10] In R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 (Ont. C.A.) at 355, the court observed:

The determination of what constitutes a "reasonable" time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the "reasonableness" of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pre-trial delay will constitute unreasonable delay for constitutional purposes.

[11] The Supreme Court of Canada has provided guidelines to assist in the s. 11(b) analysis. For trials held in the Ontario Court of Justice, the guideline for institutional delay is 8-10 months: Morin, supra, p. 21. The Ontario Court of Appeal has affirmed that 8-10 month guideline, bearing in mind that the guidelines were not meant to have the force of judicially created limitation periods: R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (Ont. C.A.), paragraph 52.

[12] In R. v. Godin, [2009] S.C.R. 3, the Supreme Court of Canada revisited and confirmed the Morin analysis. As stated at paragraph 18:

It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

Analysis

(1) The Length of the Delay

[13] The total time between the laying of the charge and the estimated end of the trial is approximately 19 and one half months. The total period of time from the laying of the charge until the anticipated end of the trial certainly raises the issue of reasonableness and necessitates an investigation into the reasons and an examination of the Morin factors.

(2) Waiver

[14] The Applicant retained counsel within days of his arrest and Mr. Connelly, on behalf of the defendant, expressed the Applicant's desire to have the matter determined quickly. Further, when the first trial date of September 11, 2012 was adjourned on application by the Crown because the complainant was not mentally fit to testify, Mr. Connelly set additional days. No expressed or implied waiver was apparent.

(3) Reasons for the Delay

(a) Inherent Time Requirements

[15] This category of delay is comprised of all potential factors causing delay which flow from the nature of the case and the inherent time requirements of the case. It is recognized that complex cases require more institutional resources and time for preparation and the setting of trial dates.

[16] All criminal cases have certain inherent time requirements which inevitably lead to delay: Morin v. The Queen, supra at 16 per Sopinka J. Not uncommon in the Ontario Court of Justice is the need for time to process the charge, to retain counsel, to apply for bail, to prepare and distribute disclosure materials and other pre-trial procedures such as the holding of a Crown resolution meeting and a judicial pre-trial conference. This case exhibits many of these features which legitimizes some delay on their account. These intake steps occasion inherent time requirements.

[17] I find this was not a complex matter. The Applicant retained counsel prior to his first appearance and the matter proceeded quickly through the process of receiving disclosure, conducting a Crown resolution and conducting a judicial pre-trial. The period between the laying of the charges (February 18, 2012) and the setting of the first trial date (May 2, 2012) can be defined as intake and should be considered neutral.

(b) Actions of the Accused

[18] As indicated above, in my view, the Applicant did everything possible to move the matter along quickly. It was originally agreed by both counsel that one day was required to complete the trial as it was not a complex matter. After the first trial date was adjourned because the complainant was not fit to testify due to mental illness, a third party records application was contemplated by the defence.

[19] It was agreed by both counsel that a new trial date should not be set until it was determined whether the condition of the complainant had improved such that she was fit to testify. This was something that could only be determined by the Crown, as the Applicant was subject to an undertaking prohibiting him from contacting the complainant directly or indirectly. I will deal more fully with the lack of any action by the Crown concerning this determination in the next factor. Suffice it to say, Mr. Connelly, on behalf of the Applicant, attended on four occasions over a period of a little more than three months before there was a Crown prepared to conduct a continuing judicial pre-trial before Justice Bourque and set a date for the third party records application and a new trial date.

[20] In my view, the third party records application did not cause any additional delay in this matter. This application arose as a direct result of the Crown's request for an adjournment. As I will discuss more fully when dealing with the Crown's actions, Mr. Connelly was forced to prepare the third party records application assuming s. 278 of the Criminal Code applied, as the Crown would not clarify whether they were proceeding on the sexual assault charge or on a charge of simple assault. This was despite the original Domestic Crown indicating at the first judicial pre-trial before Justice Bourque, on April 18, 2012, that she would not be proceeding on the sexual assault charge. This lack of clarification was despite Mr. Connelly writing two letters in January 2013 to the original Domestic Crown (Ms. Gleitman) and the Crown assigned to handle the trial (Ms. Kim).

[21] Further, Mr. Connelly became concerned about the amount of court time set aside for the Applicant's trial, given the complainant's mental health issues and the Crown's failure to clarify whether they were proceeding on the sexual assault charge or not and, as a result, he had the matter brought forward to January 11, 2013, so that a further day for trial could be set for May 3, 2013.

(c) Actions of the Crown

[22] The Crown elected to proceed by summary conviction in respect of the four charges of domestic assault to which the Applicant pleaded not guilty. At the first judicial pre-trial it was estimated by the Crown and defence the trial could be completed in a day. Certainly domestic assault allegations are serious matters. The first trial date was set on May 2, 2012, approximately four months and a week after both parties were ready to proceed to trial. There were dates offered by the trial co-ordinator in June and July 2012, however, the Crown was not available until September 2012 (See Tab 4 and 15, Application Record). Mr. Connelly indicated that there were outstanding disclosure issues that he was dealing with the Domestic Crown, Ms. Gleitman, and was content for the matter to go directly to the trial date.

[23] The Court of Appeal in R. v. Tran, [2012] ONCA 18, adopting the reasoning by Code J. in R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (Ont. Sup. Ct.) held that the delay is only to be calculated from the time the parties are ready for trial. This may be sometime after the trial date is set. Simmons J., at paragraph 32, held:

…parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. See Morin, at pp. 791-2, 794-5, 805-806.

[24] Based on the transcript from May 2, 2012, it is my view Mr. Connelly was available and ready for trial in June 2012 but the Crown was not available till September 2012. Consequently, having regard to Tran, I find there was delay of three and a half months caused by the Crown's unavailability.

[25] On September 11, 2012, the first trial date was adjourned because of the inability of the complainant to testify due to mental illness as described in a letter by Dr. Khan, the complainant's psychiatrist, which was filed with the court. Rather than set a new trial date, the Crown and Mr. Connelly told the presiding judge the matter should be further adjourned so the Crown could assess whether the trial would proceed having regard to the complainant's fitness to testify. The matter was adjourned one month to October 9, 2012. On that date the Crown had done nothing to determine whether the condition of the complainant had improved or not. Consequently, a new trial date could not be set.

[26] Mr. Connelly suggested a continuing JPT before Justice Bourque and a date, November 14, 2012, was obtained in accordance with Justice Bourque's calendar. On that date no Crown was available to conduct the JPT. The matter was further adjourned to December 4, 2012 and, once again, no Crown was available to conduct the JPT. Finally, on December 14, 2012, a Crown was available and the continuing JPT before Justice Bourque was held. A date for the third party records application was set for March 11, 2013 and a trial date was set for April 8, 2013.

[27] It is my view the Crown failed to give this matter the attention that was required and the further delay, between September 11, 2012 and December 14, 2012 before a new trial date was set, occurred as a result of the Crown's actions. In my view, this is similar to the delay caused by the Crown in failing to provide disclosure in a timely fashion. See R. v. Steele, [2012] ONCA 383 where Rosenberg, J. refers to the delay as "an inattention to disclosure requirements". In this case there was inattention by the Crown as to whether the complainant would ever be in a position to testify and a failure by the Crown to be prepared and available to conduct a continuing JPT. This was a delay of three months, which I find is attributable to Crown action.

[28] In January 2013, Mr. Connelly attempted to clarify if the Crown was proceeding with the charge of sexual assault, as this would significantly impact the third party records application. It was not until after Mr. Connelly served the Crown and the Court, on February 7, 2013, with his application record pursuant to s. 278 of the Criminal Code that the Crown, Mr. B. McCallion, who was the newly assigned Domestic Crown, sent an email advising the Crown was not proceeding on the charge of sexual assault.

[29] March 11, 2013 was set as the date when the Applicant was to argue the third party records application. This date was set on December 14, 2012. The first indication there was some difficulty in retaining counsel for the complainant is referred to in the transcript of February 28, 2013. On March 11, 2013, the Crown advised the counsel who had been retained to represent the complainant was not available on that date and, consequently, the application would have to be adjourned. The third party records application was adjourned to the first date scheduled for trial, April 8, 2013. On March 11, 2013, a further date of May 2, 2013, was set for trial, in addition to May 3, 2013, which had been set on January 11, 2013.

[30] Shortly after March 11, 2013, Mr. Connelly advised the Crown, Ms. Barkin, that because of materials he had received he was abandoning the third party records application, as it was no longer necessary. The Court was also advised not to review the materials filed as the third party records application was being abandoned. Consequently, April 8, 2013 was set as the first day for the trial.

(d) Limit on Institutional Resources

[31] In Morin, the Supreme Court of Canada has clearly held that systemic or institutional delays are attributable to the Crown in the sense that systemic delay cannot be relied upon by the Crown to excuse delay. This delay generally begins when the parties are ready for trial but the system cannot give them a speedy trial date.

[32] After the Crown's adjournment of the September 11, 2012 trial date, as a result of the complainant's mental health issues, which caused her to be unfit to testify, the original trial estimate changed. The case now required a day for the third party records application (March 11, 2013) and a day for the trial (April 8, 2013). Those dates were set on December 14, 2012. It is reflected in the court transcript (Tab 18, Application Record) that Mr. Connelly had many dates available in January and February but the earliest dates offered by the court were March 1 and 8, 2013, which were not available to Mr. Connelly.

[33] The further delay from December 14, 2012 to March 1, 2013 had been occasioned as a result of the illness of the complainant and the Crown's application for adjournment, which was granted. Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case. As Hill J. said in R. v. Hoffner, [2005] O.J. No. 3862 (Ont. Sup. Ct.), at paragraph 41:

Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process. In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral. That said, where the delay to a second trial date is itself unreasonable, cause may exist for assignment of some period of institutional delay.

[34] Considering the Crown's lack of attention to the Applicant's charges after the adjournment was granted, it took three months and four court appearances by Mr. Connelly, on behalf of the Applicant, for a Crown to finally be available and sufficiently informed of the complainant's mental health issues to be able to conduct a continuing JPT before Justice Bourque. I have already found that period of delay was directly attributable to the conduct of the Crown. With respect to the approximate four-month delay (December 14, 2012 to April 8, 2013) before a new trial date could be set, it is my view that given the conduct of the Crown, which caused an unnecessary delay of three months, the Applicant could have expected the Crown to give his case some priority. There was no evidence on the record indicating the Crown gave any priority to this matter. In fact, despite Mr. Connelly's attempts to obtain clarification as to whether the Crown was proceeding on the sexual assault charge or not, it took the Crown almost two months to make a final decision of this issue. It was not until February 7, 2013 that the Crown advised it was not proceeding on a charge of sexual assault. It is my view that a further one month of delay is attributable to the Crown and institutional delay, in respect of the period of December 14, 2012 to April 8, 2013.

[35] In R. v. A.J.W., 2009 ONCA 661, [2009] O.J. No. 3814, the Ontario Court of Appeal, citing Hoffner with approval, dealt with a defence submission that if delay following the illness of a witness was always considered neutral then cases could drag on forever despite mounting prejudice to the accused's interest in a speedy trial, and Rosenberg J. made this observation at paragraph 38:

While these are legitimate points, in my view, 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 delay to trial unreasonable even where the institutional delay falls within the Morin guidelines, especially where there is real prejudice to the accused: Morin at p. 807. [Emphasis added]

[36] In Morin, Sopinka J. at p. 798 [paragraph 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]

[37] And at p. 807 [paragraph 76]:

While I have suggested that a guideline of 8 to 10 months be used by courts to assess institutional delay in Provincial Courts, deviations of several months in either direction can be justified by the presence or absence of prejudice. [Emphasis added]

[38] I will deal further with this issue when I consider the actual and inferred prejudice experienced by the Applicant.

[39] The March 11, 2013 date for the third party records application was not able to be utilized because the Crown was unable to locate a lawyer to represent the complainant who was available on that date. The application was adjourned to the first day scheduled for the trial, April 8, 2013. Mr. Connelly in his written and oral submissions did not cast any aspersions on the conduct of the Crown respecting this issue. Shortly after March 11, 2013, Mr. Connelly advised the Crown he was abandoning the third party records application as a result of materials he had been provided. Consequently, April 8, 2013 was now scheduled for the start of the trial.

[40] The matter was not completed on April 8, 2013, in part because the Tamil interpreter, ordered for the complainant, arrived late. The two remaining dates, May 2 and 3, 2013, were set for the trial continuation. Through no fault of the Applicant or the Crown, the trial could not continue on May 2, 2013. Both Mr. Connelly and Ms. Barkin were present and prepared to proceed. Unfortunately, I was not at the courthouse on May 2, 2013, due to a scheduling misunderstanding on my part as to whether or not I was sitting that day. Consequently, in my view, any delay caused by my unavailability on the date of May 2, 2013, should not be viewed as neutral. The Applicant's trial was adjourned until the next day, May 3, 2013.

[41] On May 3, 2013, the Crown, Ms. Barkin, was ill and unable to continue presenting the Crown's case. No other Crown was available to take over this prosecution. This circumstance falls squarely within the comments in Hoffner and A.J.W., which suggest that prima facie any delay caused by the illness of a witness or one of the parties or the Judge should be considered neutral delay.

[42] However, as the cases reflect, not all of the ensuing delay should necessarily be considered neutral. In the words of Rosenberg J. in A.J.W., at paragraph 41, "Given the delay that had already occurred through no fault of the respondent, [the accused], 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."

[43] From a review of the record, I find the Crown did not do anything that could be construed as giving priority to the setting of early dates for the Applicant's trial continuation. The trial co-ordinator offered dates in June and August, as reflected in Tab 7 of the Application Record, but the Crown was unavailable. The trial Crown could have arranged for another Crown to take carriage of the Applicant's trial continuation and take the earlier dates offered in June. In my view, although the reasons for the Applicant's case not continuing on May 3, 2013 could give rise, prima facie, to any reasonable delay to the continuation date being viewed as neutral, a further adjournment of five months is unreasonable, particularly having regard to the fact there had been a previous adjournment of the trial due to the complainant's illness. The Applicant was not responsible for either of the circumstances which caused the trial continuation to be adjourned. Further, had I been available on May 2, 2013, the trial could very well have been completed, in terms of the evidence and final submissions. Consequently, part of the delay was attributable to the case not proceeding on May 2. The Crown was not able to proceed on the earlier dates offered by the trial co-ordinator. Consequently, I find that a portion of the further five-month delay should be attributed to the Crown. I find that three months of the five-month delay should be attributed to the Crown and the Court.

[44] Therefore, the total delay attributable to Crown actions or institutional delay is ten and a half months, which is just outside the guideline set in Morin.

(4) Prejudice

[45] 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 R. v. Godin, supra, at para. 30.

[46] 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." See R. v. Godin, supra, paragraph 31.

[47] In R. v. Godin, the Supreme Court held "…that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice." The Court went on to say:

37 It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

38 Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.

[48] Therefore, the existence of prejudice to a defendant based on delay can be either inferred or proven. In respect of inferred prejudice, it is virtually mandatory there be a finding that prejudice exists to the defendant in every case of lengthy delay. As stated by Hill, J. in R. v. Pusic, [1996] O.J. No. 3329, para 173:

In my view, the inference of the existence of prejudice on account of delay is virtually irresistible. The psychological stress and anxiety of pending criminal charges prolonged by a period of intolerable delay must be evident to all.

[49] The Applicant has filed an affidavit which sets out the prejudice he has suffered as a result of the delay. He testified and was cross-examined by the Crown on his affidavit and was not shaken in his evidence as to the prejudice he has suffered as a result of the numerous adjournments. In addition to the expected additional emotional stresses, costs of counsel and preparation for trial, he relates he has suffered the following additional prejudice:

a. He has had to take numerous days off from his work resulting in the loss of employment income as a result of the numerous adjournments of his trial.

b. In April 2013, he took advantage of a job opportunity which would require him to move to the United States in June 2013. Three days had been set to complete his trial, April 8, 2013, May 2 and May 3, 2013. Prior to April 8, 2013, Mr. Connelly advised he was abandoning the third party records application so that all three days could be utilized for the Applicant's trial. The Applicant testified he believed there was more than sufficient time to complete his trial and have the charges completely dealt with before June 2013, so he accepted the position. As a result of the Court's unavailability on May 2 and the Crown's illness on May 3, 2013, the continuation of his trial was adjourned to October 2013. As a result of the trial not completing in May 2013, the Applicant testified he has failed to meet the expectations of his employer because of his inability to obtain a work visa so he can move to the US. Currently he is only able to stay in the US for a period of two weeks at a time, which is not sufficient to do his job. Further, the added stress of his trial not finishing and being adjourned for five months has affected his work performance.

c. The delay of the Applicant's trial has put his immigration application in the US on hold. It has also placed his family court application on hold.

[50] In my view, the delay in this case, through no fault of the Applicant, has caused real personal prejudice to the Applicant. I accept his evidence that his employment with his new company is in serious jeopardy and the fact that the last adjournment has caused him stress that has affected his work performance.

[51] Further, it is my observation from a review of the various transcripts that the Applicant incurred additional fees for his counsel's attendances on approximately eight occasions when the matter could not proceed because of the Crown's failure to determine the complainant's mental health status, where no Crown was available to conduct a continuing JPT or where his trial was adjourned. These adjournments were through no fault of the Applicant; rather, he and his counsel have always reflected a desire to move the matter forward as quickly as possible and to complete the matter expeditiously.

Conclusion

[52] I am aware of the seriousness of the allegations before the court. This is not a case of a single allegation of spousal assault. While I am mindful that the Crown has elected to proceed by summary conviction and there is no allegation of bodily harm, I must take into account the increased societal interest in having these matters determined upon their merits.

[53] Having regard to the actual prejudice suffered by the Applicant and being governed by the dicta in Morin:

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.

76 While I have suggested that a guideline of 8 to 10 months be used by courts to assess institutional delay in Provincial Courts, deviations of several months in either direction can be justified by the presence or absence of prejudice.

I am of the view that the presence of actual prejudice, in addition to the inferred prejudice recognized by Godin and Pusic, provides a rationale for me to consider shortening the period of acceptable delay. The total delay in this case is 19 ½ months and the unacceptable delay, which I have attributed to the Crown and institutional delay is 10 ½ months. I have not taken into consideration the total delays caused by the illness of the complainant or the illness of the Crown. If I had, the total unacceptable delay would have been 15 ½ months, which is well beyond the Morin guidelines.

[54] It is my opinion, on the unique circumstances present herein, that although the unreasonable delay is just over the Morin guidelines, this is a case where there is actual prejudice that has been directly caused as a result of the delay attributed to both Crown actions and the lack of institutional resources. The Crown was unavailable to proceed with the Applicant's trial during the summers of 2012 and 2013. No explanations were provided. Despite the Court and the defence having dates available for trial in June, July and August, the Crown was not available until September in 2012 and October 2013. Further, the Crown completely ignored its responsibilities to the Applicant after the first trial was adjourned due to the complainant being unfit to testify as a result of mental illness; no Crown had determined the condition of the complainant or was available to conduct a continuing JPT for three months and four court appearances. In my view, this was inexcusable conduct on the part of the Crown.

[55] Further, the Crown, faced with a further adjournment due to illness, provided dates in the fall of 2013 and indicated the Crown was not available in June or August when both the Court and the defence were available. The possibility of another Crown taking over the prosecution was not considered, although this has occurred on a number of occasions in other cases I have been involved in where the trial was not completed on the date scheduled.

[56] The Morin guidelines have been in force for over 21 years. The passages I referred to in Morin, which indicate that deviations by several months in either direction of this guideline can be justified by the presence or absence of actual prejudice, have all but been forgotten or ignored. The recurring submission from the Crown on s. 11(b) applications is that the delay is just outside the Morin guideline, the prejudice is minimal and there is no real prejudice in terms of lost evidence or to the ability of the defendant to make full answer and defence, therefore we should just let it go. Two cases, R. v Osei, [2007] O.J. No. 768 (Ont. S.C.), a decision of Nordheimer J., and R. v. Garcia, [2008] O.J. No. 29 (Ont. S.C.), a decision of Brown, R.S.J., for Central East Region, have addressed this issue. In Osei, Nordheimer J. made these comments, which I adopt, at paras. 39 and 40:

To some degree, however, that submission misses the fundamental point. The guidelines were established to give some fairly clear direction to government as to what constitutes the outer limits of tolerable delay in the justice system. Governments have now had many years to adjust their priorities in order to ensure that the justice system receives sufficient resources to match the results against these guidelines. Indeed, I would note that the Supreme Court of Canada observed that as time passed they expected that cases would have to conform to the lower end of the guidelines. Whether this is a fair expectation or not in responding to the basic submission that the Crown has not missed the mark by much, I will repeat the essence of what I said in an earlier case.

If the guidelines set out by the Supreme Court of Canada are to have any meaning and impact, cases cannot be routinely excused from compliance on the basis that the Crown got pretty close to complying. To conclude otherwise is to then excuse the Crown from compliance with the constitutionally mandated requirements except when its failure results in especially egregious delay. That result would in turn mean that the Crown would not have to concern itself with its obligation to ensure that all cases conform to the guidelines but would only have to concern itself with an abject failure to comply. That cannot be an acceptable result when we speak of fundamental rights such as those enshrined in section 11(b) of the Charter.

[57] In Garcia, Brown, R.S.J., made the following observations, which I adopt, at paras. 72-73:

The Court of Appeal has stated that when conducting a s.11(b) analysis the Court must weigh the prejudice to the accused caused by the delay against the prejudice to society's interest in seeing the matter proceed to trial that would be caused by a stay (Qureshi para. 41). In my view such an analysis must be undertaken within the context of assessing whether the state has violated the constitutional right of an individual. With the enactment of s.11(b) of the Charter and its interpretation in the Askov and Morin cases it is inevitable that with the current level of government funding for the judicial system some cases will not proceed to trial "within a reasonable time".

Askov and Morin were decided well over a decade ago. Governments have had time to adjust, resource allocation policies to accommodate constitutional demands. As the Court of Appeal recognized in R. v Gorges, [2004] O.J. No. 790 (Ont. C.A.) trial dates must be set "in order to accommodate s.11(b)".

Regional Senior Justice Brown continues:

A culture that accepts delays as inevitable is constitutionally impermissible. While society certainly has an interest in seeing all cases proceed to trial through our constitution, we have placed a limit on that interest requiring charges to proceed to trial "within a reasonable time." If they do not a stay is the mechanism to ensure constitutional rights remain recognized and protected.

[58] In my view this is not a case where the prejudice to the security interests of the person is minimal having regard to the extra expense the Applicant has had to bear directly as a result of the Crown's actions and the real potential of the loss of his employment that is related directly to the delay. It is difficult, as reflected in Godin, to assess with any precision the effect that 19 ½ months of total delay will have on the right of the Applicant to make full answer and defence. This is not a complex or difficult case to prosecute. I have found the unacceptable delay in this case to be 10 ½ months, bearing in mind the adjournment of two trial dates (September 11, 2012, and May 3, 2013) was caused because of the illness of the complainant (September 11, 2012) and the illness of the Crown (May 3, 2013). I am also mindful that May 2, 2013 had to be adjourned because of a scheduling misunderstanding between the court and myself but through no fault of the Applicant or Crown, who were both available for the trial continuation.

[59] Balancing all of the considerations I must take into account and weighing all of the factors, I find the Applicant has shown on a balance of probabilities his right to be tried within a reasonable period of time has been infringed and I therefore pronounce a stay of all charges.

Released: October 31, 2013

Signed: "Justice Peter C. West"