Court File and Parties

Court File No.: 12-000855 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Randolph Mason, Accused

Before: Justice Robert S. Gee

Heard on: October 7, 2013

Reasons for Ruling

Counsel:

• D. Zuraw, for the Crown
• Randolph Mason, in Person

Introduction

[1] This is an application by the accused, Randolph Mason for a judicial stay of these proceedings on the basis that his right to have a trial within a reasonable time as guaranteed by s. 11(b) of the Charter has been violated.

[2] On April 25, 2012, the Information in this matter was sworn. It charged Mr. Mason with Impaired and Over .08 as well as failing to comply with probation by not keeping the peace and being of good behaviour, all in relation to an incident that occurred on April 22, 2012. This application was heard on October 7, 2013, the day originally set for trial. Since the application was heard that day, the trial was adjourned and is now set to be heard on December 19, 2013, approximately 20 months since the swearing of the Information. Mr. Mason has been unrepresented throughout these proceedings.

[3] In R. v. Morin, [1992] 1 S.C.R. 771, the Supreme Court set out the legal framework when analyzing an allegation of a s. 11(b) Charter violation. The primary purpose of s. 11(b) is to protect the accused's right to security of the person, to liberty and to a fair trial. The secondary interest is to maintain confidence in the administration of justice by seeking to ensure allegations of criminal conduct are tried on their merits within a reasonable time.

[4] In order to determine if this constitutional standard has been met, a judicial balancing of a number of factors identified by the Supreme Court in Morin is required. These factors as identified by the court are:

1. The length of the delay;
2. Waiver of time periods;
3. 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.

[5] As a guideline, the Court suggested that an 8 to 10 month timeline to trial in Provincial Courts would be appropriate. However it was made clear that this timeline ought not to be treated as anything akin to a limitation period. Variations from this standard, both upward and down may be appropriate in any given case based on a balancing of the factors noted above.

Analysis

The Length of the Delay

[6] As noted, the trial in this matter is now scheduled for December 19, 2013. Since this is approximately 20 months since the commencement of proceedings and significantly in excess of the timeline set out in Morin, this delay is clearly sufficient to warrant a judicial inquiry.

Waiver of Time Periods

[7] An accused is entitled to waive in whole or in part, any part of the delay in the case. However any waiver of the 11(b) right must be clear and unequivocal, with a full appreciation of the rights the procedure was enacted to protect. See R. v. Morin par 37 and 38. This waiver can be explicit or implicit. However if it is implicit, the court must be satisfied that the accused in the circumstances turned his or her mind to the issue of waiver and was aware what the conduct signified. If the court is not so satisfied then it does not constitute a waiver of the protected 11(b) right. This conduct, though falling short of waiver, can be taken into account under the actions of the accused factor.

[8] In this case the Crown is not suggesting a waiver by Mr. Mason of his right either in whole or for any part of the delay. I agree that there is nothing in the record that would indicate any waiver by Mr. Mason.

Reasons for the Delay

[9] This is a straightforward, uncomplicated case. Other than this application, there are no Charter Applications filed nor is there to be any testimony from any experts for either Crown or defence. Four hours has been estimated for the length of trial in this matter.

[10] The allegations as well are unremarkable. It is alleged that on the evening of April 22, 2012 Mr. Mason was at the residence of his former spouse, Deborah Medeiros and had been consuming alcohol. Also at the residence was Shaunessy Pearson, Mr. Mason's niece. Mr. Mason and Ms. Medeiros were arguing that evening. At some point Mr. Mason grabbed his keys to his truck and was warned by Ms. Medeiros if he left in it she would phone the police due to his drinking. Mr. Mason left anyway and Ms. Medeiros made good on her threat. The police were contacted by her and they eventually located him. Mr. Mason was stopped by the police and as a result of their investigation he was charged with impaired, operating a motor vehicle with a blood alcohol level exceeding .08 and failing to comply with the keep the peace term of a probation order he was subject to as a result of a conditional discharge he received the previous November. The investigation was complete that night and Mr. Mason was released on a promise to appear. As noted earlier, the Information on this matter was then sworn on April 25, 2012.

[11] Mr. Mason made his first court appearance on June 8, 2012. At that time he was provided with the disclosure and a screening form and the matter was adjourned to June 26, 2012.

[12] On June 26, 2012 a local defence counsel who Mr. Mason consulted but never retained, appeared with Mr. Mason. This was the only time any private counsel appeared with Mr. Mason on this matter. At this appearance it was indicated that Mr. Mason wished to move this matter forward and wished for a trial date to be set. However one was not set and the matter was adjourned at the suggestion of defence counsel to July 10, 2012 so resolution discussions could take place.

[13] On July 10, 2012, Mr. Mason was unrepresented and a paralegal employed by Legal Aid Ontario spoke on his behalf. Again the court was advised on his behalf that he wished to take the matter to trial. A trial date again was not set as the paralegal requested an unrepresented resolution meeting with the Crown. This resolution meeting was set for the first available date, August 1, 2012 and the case was adjourned to August 3, 2012 again to set a date for trial.

[14] The need for this resolution meeting is not readily apparent to me. Mr. Mason had clearly indicated an intention to take this matter to trial. A guilty plea seemed unrealistic. There was some indication by the Crown during submissions that a former Local Administrative Judge had mandated a policy for such meetings in cases of unrepresented accused for case management purposes. If such a local policy exists it was unknown to me prior to this case. Such a policy could very well have laudable goals and in many cases operate to save scarce court resources by resulting in earlier resolutions to cases where otherwise trial time might have been set aside.

[15] If there is no realistic chance of resolving the matter and the only necessity is to help assess the time needed for trial, then the meeting may still serve a useful purpose as the number of witnesses to be called can be canvassed. However that is not necessary in all such cases and this case would seem to be one where it was not. At most, this was going to be a three or four witness trial. That would have been apparent from a review of the disclosure. Lest it seem I am assigning blame for following the policy here, I am not. My point being that a policy put in place that is helpful in a majority of cases necessarily means there will be a minority of cases in which it will not. Those involved in the system ought to remain mindful of this minority and keep a watchful eye for them and not simply apply a policy such as this out of habit.

[16] On August 1, 2012 Mr. Mason attended his resolution meeting and the matter was not resolved. August 3, 2012 was Mr. Mason next court appearance. However, this appearance was not as he had anticipated.

[17] On August 2, 2012 Mr. Mason was charged with threatening Ms. Medeiros and breaching his probation. As such, his August 3, 2012 appearance was in bail court. The Crown on that date indicated it was opposed to his release and would be applying under s. 524 of the Criminal Code to cancel his release on the impaired charges in this matter. The bail hearing was adjourned to August 7, 2012 to allow Mr. Mason to get sureties.

[18] On August 7, 2012 a contested bail hearing was held. The release on the impaired charge in this matter was cancelled and Mr. Mason was granted bail on all his charges on one recognizance. Pursuant to the terms of the bail, Mr. Mason was required to live with his surety, his 78 year old mother, in Paris, Ontario, and be amenable to the rules and discipline of her home. He also had a curfew of 11:00 p.m. to 6:00 a.m. daily except for employment purposes or if he was in the presence of his surety. He was required to abstain from alcohol and to attend any counselling directed by his surety. As well he was prohibited from contacting Ms. Medeiros and his niece Shaunessy Pearson, and from being within 200 metres of Ms. Medeiros' residence or place of employment.

[19] The presiding justice of the peace then adjourned this matter and the threatening matter to September 11, 2012.

[20] As noted earlier, the charges in this matter are not complicated. However what ended up complicating an otherwise straightforward matter was the introduction of the threatening charge. Notwithstanding that Mr. Mason had expressed his desire for a trial on these charges and that all parties were ready to set a trial date by the conclusion of the resolution meeting on August 1, 2012, a trial date on this matter was not set until March 11, 2013. What ended up occurring was that from the conclusion of the bail hearing on August 7, 2012 until the trial date was set March 11, 2013, the charges in this matter went into a sort of judicial limbo as this matter tracked the appearances Mr. Mason was making on the threatening charge.

[21] It is essential to the outcome of this application to determine how and why this was allowed to occur.

[22] When the matter returned to court on September 11, 2012, a Ms. Kelly, a different Legal Aid paralegal than the one present July 10, 2012, spoke on Mr. Mason's behalf. Mr. Mason was provided with the screening form and disclosure on the threatening charge. A three to four week adjournment was requested and the matter was adjourned by the presiding justice of the peace four weeks to October 9, 2012. It was noted at the time by Ms. Kelly that a resolution meeting on the impaired charges had previously taken place and the purpose for this adjournment was to get some advice on all the matters, in light of the new charges.

[23] Ms. Kelly, Legal Aid's paralegal again spoke on Mr. Mason's behalf at the October 9, 2012 appearance. At that time she requested a three week adjournment which was granted to October 30, 2012. The purpose given for this request was that Mr. Mason was in the midst of a Legal Aid application which in the end, never bore fruit as he remained unrepresented throughout.

[24] When the matter appeared again October 30, 2012, Ms. Kelly once again spoke on Mr. Mason's behalf. At that time in accordance with the earlier noted policy, an unrepresented resolution meeting was requested for the threatening charges. The resolution meeting on those charges was set for December 5, 2012 and the matter was adjourned to appear in court again on December 11, 2012.

[25] On this October 30, 2012 court appearance, a discussion specific to the impaired charges in this case briefly took place. Ms. Kelly indicated she was under the impression an unrepresented accused was only entitled to one resolution meeting with the Crown and Mr. Mason had already had his on this matter. However, the justice of the peace suggested all of Mr. Mason's charges, including the impaired charges, be set for the December 5, 2012 resolution meeting and all charges be brought back to court next on December 11, 2012. This proposal was agreed to by Ms. Kelly, and all charges were adjourned to December 11, 2012.

[26] Again on December 11, 2012 when the matter appeared in court, Ms. Kelly spoke on Mr. Mason's behalf. At that time, a judicial pre-trial was scheduled for February 4, 2013, and all of Mr. Mason's charges were adjourned to that day. The transcript from this appearance offers no hint why a judicial pre-trial was thought necessary for this matter, nor does it suggest who suggested such a step. It would seem most likely to me that this was a step initiated by the Crown. Given Mr. Mason is unrepresented and unfamiliar with the court process, he would have undoubtedly been unaware of the availability of such a step or under what circumstances one would be appropriate. In any event, why a judicial pre-trial would be necessary on an uncomplicated, straightforward impaired that has been estimated to take four hours for trial, is not apparent to me.

[27] The judicial pre-trial was held as planned on February 4, 2013. Mr. Mason was assisted by duty counsel and upon conclusion of the pre-trial he requested a two week adjournment to consider resolution offers made by the Crown. As such, the matter was adjourned to February 25, 2013.

[28] The matters did not resolve and on February 25, 2013 it was indicated by duty counsel that Mr. Mason wished to have trials on both sets of charges. The Crown on this occasion was under the mistaken impression that an unrepresented resolution meeting had not taken place on the impaired charges in this case and as such, the matter was adjourned to March 11, 2013.

[29] At the March 11, 2013 appearance, for the first time, the Crown indicated it intended to bring an application pursuant to s. 486.3 of the Code to appoint counsel to cross examine Ms. Medeiros at both the trial relating to the threatening charges and at the trial on this matter. The matters were adjourned to March 18, 2013 to allow the Crown to bring its applications in this regard. However, at the same time, trial dates on both Mr. Mason's matters were targeted. The charges from August 2, 2012 relating to the alleged threat to Ms. Medeiros were scheduled for October 4, 2013 and the charges on this matter were scheduled for October 7, 2013.

[30] On March 18, 2013 the matters came before me for the Crown application to appoint counsel pursuant to s. 486.3 of the Code. The Crown assigned to these matters was not the Crown in court that day and no formal application materials had been filed. I declined to make the orders at that time. As I was not the trial judge assigned to hear the threatening charges on October 4, 2013, I did not have the jurisdiction to make such an order on that matter. On this matter, I was unwilling to make such an order to cross examine a witness on a straightforward impaired charge without an evidentiary basis for so doing.

[31] As such, both matters were adjourned directly to their respective trial dates on the understanding if the Crown wished to renew its application for these orders it could obtain the appropriate date before trial to do so. I understand the Crown did make such an application and get such an order on the threatening charge, but did not renew its application for such an order in this case.

[32] When the matter commenced before me on October 7, 2013, Mr. Mason was unrepresented. At that time the Crown withdrew the over .08 charge leaving only the impaired operation and the breach probation charges to be tried. The Crown also at that time stated if the trial had been held that day Ms. Medeiros would not have been called as a witness. As a result of this, the Crown undertook that if this application of Mr. Mason's is dismissed and this matter proceeds to trial December 19, 2013 they would not call Ms. Medeiros at that time.

[33] In assessing the delay in this matter, it is important to remember it is the duty of the Crown to bring the accused to trial. Additionally, the protection afforded by s. 11(b) is not limited to accused who vocally and repeatedly assert their desire for a speedy trial date. (See: R. v. Morin par 62).

[34] In its factum, the Crown has set out the various adjournments in this matter and has helpfully suggested how each period of delay ought to be categorized. Some of these suggestions I agree with, others, I do not.

[35] In looking at the period from April 25, 2012 to August 3, 2012, it would appear the case was proceeding at an acceptable pace. Had he not been arrested on the threatening charge and made his court appearance as originally planned on August 3, 2012, a trial date would have been set on this matter, on that date.

[36] The Crown has suggested the period from April 25 to June 8, 2012 and then from July 10 to August 3, 2012 be viewed as inherent time requirements. The period from June 8 to July 10, 2012 the Crown suggests be viewed as actions of the accused. I would categorize this entire period as inherent time requirements. Mr. Mason received his disclosure June 8, 2012 and as the Court stated in par 42 of Morin, disclosure is a part if the inherent time requirements of all cases. If the gathering and providing the disclosure to an accused is part of the inherent time requirement, then a reasonable period for the accused to review the disclosure is as well. The other delay in this period was a request for an adjournment for a resolution meeting. Since a resolution meeting was, according to the Crown, mandated for Mr. Mason, given his status as an unrepresented accused, any delay for this purpose ought to be viewed as an inherent requirement.

[37] What becomes problematic is how to assess the delay after the introduction of the threatening charge to the mix.

[38] On August 3, 2012 Mr. Mason was in bail court. He had his bail hearing August 7, was released and all charges were adjourned to September 11, 2012. The Crown suggests this period be viewed as inherent time requirements. Realistically, this matter was still ready to set for trial during this time. As noted all steps needed to be taken to be in a position to set a trial date had been completed. However, given he was now facing other charges and was now subject to moderately restrictive bail conditions, it would not be unrealistic to think Mr. Mason would need some time to reflect and consider if this change in the legal landscape might prompt him to take a different approach. As such, I am prepared in these circumstances to view this period as inherent time requirements of the case.

[39] The period from September 11 to October 30, 2012 the Crown has suggested can be attributed to actions of Mr. Mason. I would agree. During this period he requested time to seek legal advice and make a legal aid application. He had already sought and received legal advice on this matter and a legal aid application could have been made during the previous period after his release on bail.

[40] It is the time period from October 30, 2012 to the trial date of October 7, 2013 and further to the currently scheduled trial date of December 19, 2013 that I find most troubling. I have concluded that I cannot attribute any of this time to the actions of the accused.

[41] The responsibility for the delay from October 30, 2012 to March 11, 2013 when trial date was set, I find ought to be attributed to, either, actions of the Crown, or other reasons for the delay. By other reasons for the delay I am referring to the judicial participants who were involved in this period. As mentioned several times, this was an uncomplicated, straightforward case. A trial date should have been set long before March 11, 2013. The introduction of the threatening charge added a wrinkle to the matter but should not have ground the progress of this case to a halt. There was no reason why, after his release on bail on August 7, 2012, that both of Mr. Mason's cases had to remain in lock step as they progressed through the system.

[42] Of the three main participants in this matter, Mr. Mason, the Crown and the judicial officers who dealt with the matter from time to time, the least knowledgeable as to the workings of the system, by a wide margin, is Mr. Mason. By October 30, 2012 this case had been in the system for just over six months. Since they are involved in the court system in Brantford on a daily basis, the Crown and the judicial officers should have been aware, given the time in this court of institutional delay from set date to trial date, that setting a trial date at any time after October 30, 2012 would have resulted in the matter exceeding the Morin guidelines and put this case in an 11(b) danger zone.

[43] As such I find it was incumbent on the Crown and the judicial officers to recognize this situation and take positive steps to move the matter forward and to address this potential 11(b) issue explicitly on the record. See the Court of Appeal decision in R. v. R.M., [2003] O.J. No. 4240 at par. 9. In that case Justice MacPherson found that when a case is in trouble, it is incumbent on the judge, the Crown and defence counsel to recognize this fact and have a frank, on the record discussion as to how to solve the problem.

[44] In this case there was no defence counsel to rely on to initiate any such discussion. However, that does not relieve the judicial officers involved, or the Crown, from this duty. If anything, when the accused is unrepresented the Crown and judicial officers involved must remain more acutely aware of this obligation imposed upon them. See also R. v. Sherbanowski, [2011] O.J. No. 54 at par 46 to 58. In this case, at no time was the issue of 11(b) ever adverted to, on the record by any of the participants.

[45] I come to this conclusion even though if one were to only read the transcripts of the adjournments that occurred on and after October 30, 2012 it would appear many were requested by Mr. Mason or acquiesced in by him. Mr. Mason testified on this s. 11(b) application. His testimony was that during these court appearances he was unaware of how the court system worked and as such he relied on the directions of others who were more knowledgeable than he, including the paralegals or duty counsel who spoke on his behalf, the Crown and the presiding judicial officers. He testified his two cases seemed to have been joined together and he thought they were required to remain that way.

[46] Having heard and viewed him in court this assertion by him is believable. Additionally, a review of the transcripts supports this as well. The only time Mr. Mason spoke on the record at any of the appearances is when he was spoken to directly and these occasions were few and far between. Moreover, even if the requests for adjournments were made by Mr. Mason or on his behalf, the presiding judicial officer and the Crown both were obligated to raise the 11(b) issue on the record and failed to do so.

[47] For instance, at the October 30, 2012 court appearance, it was suggested that the threatening matters be set for the unrepresented resolution meeting with the Crown on December 5, 2012. The justice of the peace presiding at the time suggested this matter be set for the meeting too and be adjourned to the same date as the threatening, December 11, 2012. This suggestion was agreed to by the paralegal speaking for Mr. Mason that day, even though he had already had a resolution meeting on this matter.

[48] The Crown has suggested this period ought to be viewed as inherent time requirements, but I find there was nothing inherent to it. The responsibility for this delay has to be shared by the Crown and the judicial officers involved. By this point, instead of finding ways to keep Mr. Mason's cases joined at the hip, they should have been discussing this case separately and finding ways to avoid 11(b) problems.

[49] Similarly, at the December 11, 2012 appearance, both this case and the threatening case were adjourned to February 4, 2012 for a judicial pre-trial. The Crown suggests as well that this time be viewed as an inherent time requirement. For support, the Crown refers to the Court of Appeal case in R. v. Tran 2012 ONSC 169, [2012] O.J. No. 38 at par 34 which suggest judicial pre-trials are a necessary case management tool and should be considered part of the inherent time requirements of a case. I agree that judicial pre-trials can be a useful case management tool; however they are not required in all cases. The less complex and more straightforward the case, the less the need for a judicial pre-trial.

[50] As stated several times, this case is uncomplicated and straightforward, and a judicial pre-trial was an unnecessary case management tool. All the issues needed to be canvassed in order to properly assess trial time had presumably been reviewed at the August 1, 2012 resolution meeting that the Crown felt was necessary at the time.

[51] Again there is no reason why at either the October 30 or December 11, 2012 court appearances a trial date could not have been set, or at least targeted. The Crown and the presiding judicial officers should have recognized this.

[52] The responsibility for the delay from October 30, 2012 until the trial date was set on March 11, 2013 has to be shared between the Crown and the judicial officers involved. As Justice Sopinka stated in Morin, there is no mathematical formula to be applied. Courts as well are warned against getting bogged down in minute examinations of every time period. I find that if I were to place responsibility on Mr. Mason for any of the delay after October 30, 2012 I would not be heeding the warning of Justice Sopinka and would as well be committing the error Justice Cromwell warned against in the case of R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3 at par 18 of "losing sight of the forest for the trees."

[53] Last, is the period from March 11 to the trial date of October 7, 2013, and then again from October 7 to December 19, 2013 all of which I have assessed as institutional delay. However, when the trial date was being set on March 11, 2013, more care ought to have been taken in attempting to find a date earlier than seven months later on October 7, 2013. There is nothing in the record that would indicate anyone involved turned their mind to the 11(b) issue and sought an earlier date. Had they, it is likely the trial coordinator would have been able to accommodate this matter sooner. It should have been obvious to the Crown and the presiding judicial officer on March 11, 2013 that 11(b) would necessarily have been an issue in this case by October 7, 2013, some 17.5 months after the charge was laid. To think the trial coordinator likely could have found an earlier date if only asked, one only needs to look at what happened on October 7, 2013 when this application was argued and a new trial date was needed. At that time when 11(b) was at the forefront as the new date was being selected, a trial was able to be scheduled some 2.5 months later.

[54] As such, I have concluded that one month and three weeks of the overall delay is attributable to Mr. Mason. The balance of the delay, I have assessed as inherent delay of 5 months and two weeks, institutional delay of 9 months and one week, and delay shared by the Crown and the judicial officers involved of 4 months and two weeks. This total delay not attributable to Mr. Mason of approximately 19 months, including 13 months and three weeks of institutional, Crown and judicial officer caused delay, is an unacceptable delay for a case this straightforward.

Prejudice

[55] In assessing whether the accused has suffered prejudice courts must keep in mind that the issue is whether there is prejudice from the prolonged delay of the matter, not the prejudice that inevitably results from a person being charged with a criminal offence. See the decision of the Court of Appeal in R. v. Kovacs-Tatar, [2004] O.J. No. 4756 at par 32 to 33.

[56] However, Justice Sopinka in Morin held that prejudice may be inferred from the length of the delay and the longer the delay, the more likely that such an inference will be drawn.

[57] In this case, the length of the delay in an otherwise straightforward case was substantially longer than the Morin guidelines. This length of delay in these circumstances necessarily leads to the inference of prejudice being drawn.

[58] Going further though, Mr. Mason testified to specific aspects of actual prejudice that flowed from the delay.

[59] Mr. Mason during this period of time was self-employed. He acted as a property manager of several properties in Brantford for absentee landlords. This employment would at times require him to attend various property sites in Brantford. As well, he will on occasion be faced with tenants who are upset by some aspect of their property and at times these situations have the potential to become volatile.

[60] Prior to these charges, Mr. Mason had a drivers' licence and an automobile. As a result of these charges, he was subject to the Administrative Drivers' Licence Suspension provisions and as such his licence was suspended for three months. He testified that after this three month period he was unable to afford the fees required to have his licence re-instated and as such he has been without an automobile since, which necessarily makes it more difficult to undertake his employment.

[61] Also, since August 7, 2012 he has been on modestly restrictive bail conditions. As noted the terms of this bail required him to live with his 78 year old mother in Paris, Ontario, a town several kilometres outside the City of Brantford. In addition he was subject to a curfew of 11:00 p.m. to 6:00 a.m. daily.

[62] The Crown has submitted that these bail conditions should be viewed as primarily put in place to address the issues that flowed from him being charged with the threatening matter. I am reminded that prior to this, his release contained no restrictions on his liberty and as such any prejudice flowing from the bail conditions should not be viewed as flowing from the impaired charges in this matter.

[63] This argument I find is without merit.

[64] When Mr. Mason was in bail court on August 7, 2012, the Crown opposed his release, requested his release on this matter be cancelled and sought to have him detained in custody on all matters. At the conclusion of the bail hearing, if the Crown thought the terms of release being imposed at that time were not necessary to meet the ends of justice in this matter, it could have suggested a separate, less onerous form of release on this matter, but did not. The Crown was content that the terms of release being imposed be applicable to this matter as well.

[65] Mr. Mason testified that on several occasions when he was required to be at a property to deal with a tenant the situation did in fact become volatile to the point where the police were called. On these occasions, he testified that upon the arrival of the police, they would run his name through their system and become aware of his charges and the bail terms he was subject to. Then, in order to avoid potential issues with compliance with his bail, he would be advised to leave the property. This, Mr. Mason contends, has had an impact on his ability to do his job and his reputation with those for whom he works.

[66] As well, he indicates there have been occasions when something has arisen at a property that required his presence during the night when his curfew required him to be in his residence. He testified he misinterpreted the curfew condition of his bail that allowed him to be out of his residence during the curfew period for employment purposes. He thought there was no such allowance and his only ability to be out of his residence during that period was if his mother was with him. He said it is not realistic for his 78 year old mother to be expected to attend these situations in the middle of the night.

[67] This aspect of the prejudice he claims may have been somewhat self-inflicted given his misinterpretation of his bail conditions. However, the practical reality is even if he had the correct understanding of his bail conditions, Mr. Mason would only have been able to attend these employment related issues during the middle of the night if his mother agreed to drive him from Paris to Brantford since he did not have a driver's licence or car. So the practical effect of having his mother attend with him in the middle of the night would be the same.

[68] Mr. Mason also testified he has been suffering from depression and anxiety for some years. He is under the care of a doctor for this and his health in this regard has been negatively affected by the stress he feels from this matter to the point where recently his medications had to be adjusted. A letter from Mr. Mason's physician indicated that the long duration this matter has been taking, has had a negative effect on his emotional state.

[69] Other prejudicial effects Mr. Mason claims from the delay are that he has been prevented from attempting to re-establish any relationship with his niece Shaunessy Pearson. As well, he and Ms. Medeiros had a number of dogs for which Mr. Mason cared a great deal and he has been separated from them for the duration of this matter.

[70] I should note that at the commencement of the trial on threatening charges on October 4, 2013 Mr. Mason brought a similar application to stay those proceedings based on a violation of his 11(b) right. That application was heard by Her Honour Justice M. Zivolak. Obviously the length of the delay was less than in this matter and the assessment of the causes of the delay would have been different based on the circumstances of that case. The prejudice though claimed by Mr. Mason was similar and Justice Zivolak found that Mr. Mason did suffer significant prejudice in that matter as a result of the delay. As such, because of that significant prejudice, even with a lesser period of delay, Justice Zivolak found that Mr. Mason's 11(b) right to a trial within a reasonable time had been violated and those proceedings were stayed on November 13, 2013.

[71] I too find that Mr. Mason has suffered actual prejudice as a result of the delay in this matter based on the testimony he gave at the application. I would characterize it as a moderate amount of actual prejudice, but prejudice nonetheless, that flowed from the delay in this matter.

Conclusion

[72] Keeping these findings in mind, I must now turn to a balancing of the competing interests in this case, that being Mr. Mason's interests that s. 11(b) of the Charter is meant to protect, against society's interest in seeing allegations of criminal conduct decided on their merits.

[73] The court and the Crown are at all times duty bound to ensure an accused receives a fair trial. That duty is particularly heightened when an accused is representing him or herself at trial. As noted earlier in these reasons, all participants; judiciary, Crown and defence have a duty to ensure cases proceed at a constitutionally appropriate pace. When an accused is unrepresented, it is incumbent on the other two players in the system, the judiciary and the Crown, to be particularly vigilant about ensuring this constitutional standard is met. When, as in this case, the Crown and the judiciary take their collective eye off the ball in that regard, cases can fall through the proverbial cracks.

[74] Cases that exceed the Morin guidelines by an amount similar to this may pass constitutional muster if they are particularly complex or if there is an absence of prejudice to the accused. However, given that I have found an unacceptable delay of approximately 19 months, and attributed that delay as noted earlier, combined with moderate level of actual prejudice to Mr. Mason flowing therefrom, the inevitable conclusion in this matter is that I must find Mr. Mason's rights that are meant to be protected by s. 11(b) of the Charter, have been violated. In these circumstances the only appropriate remedy is for a stay of the proceedings. As such, Mr. Mason's application will be granted and a stay of these proceedings is hereby ordered.

Dated at Brantford, Ontario This 28th day of November, 2013

The Honourable Mr. Justice R.S. Gee