WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

CITATION: R. v. H.(N.), 2014 ONCJ 519

COURT FILE No.: Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

N. H. AND D. D., young persons

Before Justice E. B. Murray

Heard on September 5, 2014

Reasons for Judgment released on October 1, 2014

Mr. Robert Wright ................................................................................... counsel for the Crown

Ms. Maija Martin ....................................................................................... counsel for the Mr. H.

Ms. Ingrid Grant ....................................................................................... counsel for the Mr. D.

MURRAY, E. B. J.:

[1] N. H. and D. D. are charged with robbery with a firearm and disguise with intent to commit an indictable offence in relation to a jewellery store robbery which occurred in Toronto on December 17, 2007. The charges were laid against Mr. D. on September 19, 2013 and against Mr. H. on December 4, 2013. A five-day trial is scheduled to commence November 3, 2014.

[2] The defendants bring a motion alleging a violation of their right to trial within a reasonable time under Section 11(b) of the Charter, and ask that the charges be stayed under section 24(1). They allege further that the pre-charge delay in this case violates their rights under section 11(d) and 7 of the Charter, a violation that also warrants a stay.

[3] The Crown opposes the application.

[4] I have determined that the defendants’ section 11(b) application cannot succeed. I have also determined that the application grounded in section 7 and section 11(d) of the Charter should be determined in the context of a full evidentiary record at trial, and adjourn that application to the trial dates. What follows below are my findings of fact and reasons with respect to the dismissal of the defendants’ section 11(b) application.

1. The facts

[5] At the time of the robbery both defendants were 17 years old. Mr. D. is now 23 years old, and Mr. H. is 24 years old.

[6] The allegations of robbery are as follows:

• Four masked males entered a store.
• One male pointed a gun at the storekeeper, who crouched behind a counter.
• The four males ransacked the store and fled, taking a significant amount of jewellery.
• A witness saw the four males running to a parked car carrying boxes and trays. One of the males pointed a firearm at the witness, but did not fire. All four robbers fled in the car.
• Discarded jewellery and clothing was found in an alley close to the store along the route to the car. Included in the items found were a latex glove and a balaclava.
• The Centre for Forensic Sciences was able to generate two DNA profiles from these items. The profile from the latex glove is labelled as DNA Profile 1 and the profile from the balaclava as DNA Profile 2. These profiles were run through the DNA databank of known offenders, and no matches were generated.

[7] On March 25, 2010, Mr. D. was found guilty of trafficking in cocaine; a DNA order was made and a sample taken from him. On July 16, 2010 the Centre for Forensic Science reported that Mr. D’s sample had generated a hit with respect to DNA Profile 1. Toronto police received a report of this hit on July 19, 2010.

[8] Mr. H. deposes that he believes he was convicted of the offence of break-and-enter in 2009 when he was an adult, and that a sample of his DNA was taken pursuant to court order. He offers no evidence corroborative of this belief.

[9] Mr. H. was found guilty of manslaughter on June 27, 2013 and sentenced to nine years in custody. A DNA order was made and a sample taken from him that day. On July 27, 2013 the Centre for Forensic Science reported that Mr. H.’s sample had generated a hit with respect to DNA Profile 2. Toronto police received a report of this hit on July 29, 2013.

[10] Mr. D. was arrested and charged with the offences related to the December 17, 2007 robbery on September 18, 2013. On September 19, 2013, he was brought to court, an information was sworn, and he was released the same day.

[11] On November 5, 2013 Mr. H. was arrested at Joyceville Institution and informed of the charges related to the December 17, 2007 robbery. A judge’s order was obtained to bring him to court, and pursuant to that order he appeared in court on December 4, 2013 where an information was sworn against him.

[12] The applicants allege that pre-charge delay is relevant on their section 11(b) application in the assessment of what constitutes the inherent time requirements in this case. They allege that because the hit was returned for Mr. D. in September 2010 and the hit was returned for Mr. H. in July 2013, that the Crown should have had all disclosure ready for delivery at the time the defendants were charged in September/December 2013. They allege that little or no time should be allowed for a neutral intake period in this case.

[13] The Crown does not agree that pre-charge delay should be considered by the court in determining what constitutes a reasonable intake period in this case. The Crown has no explanation for the lack of action by police after the hit on Mr. D. in 2010, but does say that after the hit on Mr. H. at the end of July 2013 that police decided to proceed with the case against both defendants.

2. History of proceedings

2.1 Mr. D.

[14] I set out below the chronology of events since each defendant was charged relevant to Mr. D.’s application pursuant to section 11 (b).

September 19, 2013 Information sworn against Mr. D. and he is released on bail. There is no evidence as to the conditions of his release.

October 31, 2013 2nd court appearance for Mr. D., who had retained counsel. He appeared by designation. No disclosure available.

November 14, 2013 3nd court appearance for Mr. D., who appeared by designation. No disclosure available.

November 28, 2013 4th court appearance for Mr. D., who appeared by designation. No disclosure available to counsel (police indicate it is prepared, but switch to Versadex system has delayed delivery.)

December 19, 2013 5th court appearance for Mr. D., who appeared by designation. No disclosure available to counsel. (police indicate it is prepared, but switch to Versadex system has delayed delivery.)

January 2, 2014 6th court appearance for Mr. D., who appeared by designation. Initial disclosure provided. Counsel to set Crown pre-trial. Further disclosure provided on January 6, 2014.

January 9, 2014 Defence counsel sends letter requesting further disclosure, including CFS report and defendant’s statement.

January 23, 2014 7th court appearance for Mr. D., who appeared by designation. The further disclosure requested above noted on record.

February 6, 2014 8th court appearance for Mr. D., who appeared by designation. Defence counsel notes that no meaningful Crown pre-trial could be conducted because of important missing disclosure-- CFS report, defendant’s statement, and occurrence report. Matter to be joined with Mr. H.

February 7, 2014 Further disclosure provided, including CFS report, defendant’s statement and occurrence report.

February 11, 2014[1] 9th court appearance for Mr. D., who appeared by designation. Duty counsel appears for Mr. H. Replacement information filed joining two defendants. Defence counsel requests adjournment to review 2014 disclosure.

February 20, 2014 Mr. D.’s counsel sends letter requesting further disclosure.

February 24 & 26, 2014 Further disclosure provided.

March 4, 2014 10th court appearance for Mr. D., who had retained counsel who appeared by designation; his counsel appears as agent for Mr. H.’s counsel, who also has a designation. This is first occasion on which defendants appear together. Defence counsel indicates availability for judicial pre-trial as early as March 10; 1st available date for the court is March 20, 2014.

March 18, 2014 Mr. D.’s counsel sends letter requesting further disclosure.

March 20, 2014 11th court appearance for Mr. D., who appeared by designation. Judicial pre-trial conducted. Trial dates and date for 11(b) motion could not be set because trial coordinator unavailable. Matter adjourned for further JPT and to set trial and motion dates.

April 7 & 10, 2014. Further disclosure provided.

April 10, 2014 12th court appearance for Mr. D., who appeared by designation. Continuing JPT held, and dates set for motion (September 5, 2014) and trial (November 3, 4, 5, 17, 18, 2014). Record indicates that

Crown estimated 4-6 weeks would be required before Crown was prepared for trial; that counsel for Mr. D. indicated availability “as early as May, some June, some July, some August” and no availability in September; counsel for Mr. H. indicated availability in “two weeks available in June as well as the month of July…two weeks in September and the month of October”; court has dates in September and October on which defence counsel were unavailable.

2.2 Mr. H.

December 4, 2013 1st court appearance for Mr. H., brought to court on judge’s order; information sworn. Mr. H. has located counsel, who sends message via duty counsel advising that adjournment is required to complete retainer.

December 11, 2013 2nd court appearance for Mr. H. Counsel sends message via duty counsel requesting adjournment.

December 17, 2013 3rd court appearance for Mr. H. by video. Defence counsel notes that he has consented to detention. Most of discussion is about defendant’s desire to return to Joyceville. Defence counsel notes she has a 6-8week trial beginning in January, and suggests a lengthy adjournment. Crown does not agree, and matter adjourned to January 7, 2014, with counsel to arrange a Crown pre-trial in the interim.

January 6, 2014 Initial disclosure provided.

January 7, 2014 4th court appearance for Mr. H, by video remand. Defence counsel does not appear, sends message via duty counsel asking for 2 week adjournment, noting that he had Crown pre-trial yesterday. Counsel is asking Crown to assess reasonable prospect of conviction (RPC).

January 21, 2014 5th court appearance for Mr. H, by video remand; defence counsel attends and notes requests for further disclosure, and requests adjournment of one week. Defendant reiterates desire to return to Joyceville. Crown still assessing RPC.

January 28, 2014 6th court appearance for Mr. H, by video remand; duty counsel attends with adjournment request from defence counsel as Crown is still assessing RPC and receiving disclosure. Defendant reiterates desire to return to Joyceville.

February 4, 2014 7th court appearance for Mr. H, by video remand; defence counsel attends and requests a JPT. Crown says a JPT is premature, because no Crown pre-trial has been conducted with Mr. D’s counsel, and matters have to be joined up, and also requests that Mr. H’s counsel conduct a pre-trial with the assigned Crown.

February 7, 2014 Further disclosure provided, including CFS report, Mr. D’s statement and occurrence report.

February 11, 2014 8th court appearance for Mr. H, by video remand; 1st appearance on which defendants are joined. Duty counsel appears for Mr. Mr. H. and counsel for Mr. D. appears. Adjournment requested by Mr. H.’s counsel in order to speak with client and appear in person. Mr. D’s counsel indicates adjournment is needed to review further disclosure furnished, and suggests March 4 return date.

February 13, 2014 9th court appearance for Mr. H. in person, and counsel; designation filed.

February 25, 2014 Defence counsel sends letter requesting further disclosure.

February 24 & 26, 2014 Further disclosure provided.

March 4, 2014 10th court appearance for Mr. H, by designation, Mr. D’s counsel appearing, and as agent for Mr. H’s counsel. Defence counsel indicates availability for judicial pre-trial as early as March 10; 1st available date for the court is March 20, 2014. Judicial pre-trial date set.

March 20, 2014 11th court appearance for Mr. H, by designation. JPT conducted. Trial dates and date for 11(b) motion could not be set because trial coordinator unavailable. Matter adjourned for further JPT and to set trial and motion dates.

March 20, 2014 Defence counsel sends letter requesting further disclosure.

April 10, 2014 12th court appearance for Mr. H., by designation. Continuing JPT held, and dates set for motion (September 5, 2014) and trial (November 3, 4, 5, 17, 18, 2014). Record indicates that Crown estimated 4-6 weeks would be required before Crown was prepared for trial; that counsel for Mr. D. indicated availability “as early as May, some June, some July, some August” and no availability in September; counsel for Mr. H. indicated availability in “two weeks available in June as well as the month of July…two weeks in September and the month of October”; court has dates in September and October on which defence counsel were unavailable.

3. Analytical framework

[15] In R. v. A.J.[^2] I summarized the law with respect to applications by young persons under section 11(b) of the Charter. I repeat that summary below.

“Some delay in the adjudication of a criminal charge is to be expected; section 11(b) of the Charter protects a defendant against "unreasonable delay". The Supreme Court of Canada set out the analytical framework to be used in assessing applications under section 11(b) of the Charter in R. v. Morin, 1992 CanLII 89 (SCC), [1992] S. C.J. No. 25. Justice Sopinka, speaking for the majority of the Court specified four factors to be considered:

• 1. length of the delay
• 2. any waiver of the delay
• 3. the reasons for the delay, and more particularly,
  • inherent time requirements of the case
  • actions of the defendant
  • actions of the Crown
  • limits on institutional resources, and
  • other reasons for the delay.
• 4. any prejudice suffered by the defendant.

7 Justice Sopinka held that an 11(b) application is not properly decided by resort to a mathematical formula, and should involve the balancing of the interest which section 11(b) is "designed to protect against the factors which lead to delay or are otherwise the cause of delay". He observed as follows:

• 26 The primary purpose of section 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this Court. I will address each of these interests and their interaction.

• 27 The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.

• 28 The right to security of the person is protected in section 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

• 29 The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 1983 CanLII 1873 (ON CA), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused ..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.

8 The overriding duty of a court hearing an 11(b) application was addressed by Justice Beverly McLachlin[^3] in her concurring decision in Morin:

• 87 The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

9 R. v. Morin set out administrative guidelines as to what period of delay should prompt judicial consideration of a stay. The Court observed that delay is calculated from the laying of a charge to the conclusion of trial, and held that "unreasonable delay" does not include delay caused by the inherent time requirements of the case or by periods waived by the defence. The Morin guideline as to unreasonable delay in the provincial courts was 8-10 months.

10 The court cautioned that this 8-10 month period is a guideline only, and could vary according to local conditions and changing circumstances. The Court also held that application of the guideline would be affected by the presence or absence of prejudice to the defendant because of institutional delay; the greater the prejudice, the shorter the acceptable period of such delay.

11 As Justice Michal Code noted in R. v. Lahiry, 2011 ONSC 6780, in an 11(b) analysis, "some delays are said to 'weigh against the Crown', some delays are said to 'weigh against the defence', and some delays are said to be 'neutral'".

12 In Morin, Justice Sopinka defined "institutional delay" as the period which starts after the parties are "ready for trial but the system cannot accommodate them". In the analysis of Morin and subsequent cases, both institutional delay and Crown-caused delay "count against" the Crown in an 11(b) application.

13 Delays caused by the actions of a co-accused are sometimes characterized as part of the inherent time requirements of a case, and sometimes classed as neutral under "other causes for delay" in the Morin analysis.[^4] However these delays are characterized, they do not run against the Crown or against a defendant who has not contributed to the delay caused by a co-accused….

14 The Ontario Court of Appeal considered the proper framework for determination of 11(b) applications in cases involving young persons in R. v. M. (G.C.), 1991 CanLII 7057 (ON CA), [1991] O.J. No. 885. The court rejected the argument that young persons were entitled to a "special constitutional guarantee" to trial within a reasonable time, but held that a young person may be more prejudiced by delay than an adult, and that "delay which may be reasonable in the adult criminal system may not be reasonable in the youth court". The court noted that young persons are less able than adults to appreciate the connection between their behaviour, and that this factor supports a conclusion that it is reasonable for a young person to expect a more expeditious trial than an adult may be afforded. The court suggested an administrative guideline for delay of five to six months, after the inherent requirements of the case and delay occasioned by the defence are taken into account.

15 In R. v. T.R, 2005 CanLII 18709 (ON CA), [2005] O.J. No. 2150, the Ontario Court of Appeal held that the YCJA did not introduce a new regime as to the timeliness required in the conduct of youth cases, and that the YCJA represents a codification of the YOA (Young Offenders Act) jurisprudence on this issue . The court found that and that the M. (G.C.) case and its guideline is still good law.”

[16] Appellate caselaw which is binding on this court offers further guidance as to how time in a case should be assessed and allocated in determining whether there has been unreasonable delay. This guidance is summarized below.

• Every case has a neutral intake period during which counsel are retained, bail arranged, disclosure is prepared and reviewed, further disclosure is requested, meetings are held with clients, instructions are obtained, and meetings are held to explore resolution.[^4] These activities are "necessary and beneficial”. The appropriate length of time for this neutral intake period can vary widely, depending on the nature of the case. The Supreme Court of Canada has held that a two month neutral intake period is reasonable in the simple drinking and driving case.[^5]
• In R. v. Lahiry, a drinking and driving case, the trial judge had found that a 6-week delay to provide initial disclosure was excessive, and that disclosure should have been available with in a “day or two at most”. Justice Michael Code found that the trial judge erred in this respect:

“….the trial judge's focus on the fact that it would only take the police a few days to produce disclosure materials, in such a simple case, is an over-simplification of the function of an intake period. The Crown must also review the disclosure materials produced by the police for completeness and must do any necessary editing. It is then the Crown that makes disclosure, usually at a first appearance in court, and not the police.”

• “Requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases”.[^6] The defence may be obliged to move to this next step of a case and set a date for trial even when all mandated disclosure has not been provided. The disclosure expected from the Crown prior to this step is that which will allow an accused sufficient information to plead and to elect his mode of trial. The defence does not forfeit its Stinchcombe rights by setting a trial date, and the obligation of the Crown to provide disclosure is continuing right up to the date of trial.[^7]
• The Ontario Court of Appeal has found that “some reasonable period of delay” in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.[^8] In R. v. Tran, a drug case involving four defendants, a 46 day delay was accepted as reasonable. In R. v. Emmanuel[^9], a simple impaired driving case with one accused, a 34 day delay was seen as reasonable.
• In assessing the responsibility for the delay between the time that a trial date is set and the trial begins, a court is not bound to accept assertions by counsel that they will be ready for trial on a particular date without considering the time reasonably required for counsel to prepare and clear their calendar. That time period is properly seen as part of the inherent time requirement of a case.[^10] As Justice Michael Code said[^11]:

There is no place for fictions when seeking to prove Charter violations. It is rarely true that counsel is immediately available for trial, when setting a date. Whenever counsel take on a new case they complete various preliminary steps during the intake period. Once they have taken these steps and are ready to set a date for trial, they need to set aside sufficient time in their calendars to prepare the new case for trial and to then conduct the trial. If the case is lengthy and complex, or if counsel are very busy, it may be some considerable period of time before counsel are ready for trial. To use a simple hypothetical, if counsel has no time in his/her calendar to prepare a new case for trial and to then try it until ten months in the future, and the earliest date that the Court has available for the trial is twelve months in the future, then systemic congestion in the Court is the cause of only two months of delay.

• If there are pre-trial motions—including 11(b) motions—the time reasonably required to schedule , prepare for, and conduct these motions is part of the inherent time requirements of a case.[^12] It is often a good use of court time to schedule a period between the hearing of these motions and the commencement of trial itself. That delay is also part of the inherent time requirements of the case.
• In order for a court to determine when a party is ready to commence trial, it is critical that counsel state on the record with specificity the earliest dates on which he or she is available for a trial.[^13]
• If there are multiple defendants, counsel should state on the record with specificity the earliest dates on which they are mutually available for trial. The court hearing an 11(b) motion should not be required to speculate as to what dates were mutually agreeable.[^14]
• The time required to conduct the trial itself is part of the inherent time requirement of a case.[^15]

4. Analysis

[17] I turn now to the application of these principles to the instant case.

4.1 Length of delay

[18] Length of delay is calculated from the date of the charge to the last date set aside for trial.[^16] An initial consideration of this total delay is made to determine whether further inquiry should be made as to the reasonableness of any particular period of delay and of delay in the case as a whole.

[19] For Mr. D., the period of overall delay is 14 months (September 19, 2013 – November 18, 2014). For Mr. H. that period is 11.5 months (December 4, 2013 - November 18, 2014).

[20] The Crown accepts that this period is sufficient to trigger the section 11(b) inquiry for Mr. D., but not for Mr. H., saying that this total time to trial in a case such as this is clearly warranted. I do not agree. The total period of delay in Mr. H.’s case is twice that suggested by the Court of Appeal in R. v. M. (G. C.) [^17]as a reasonable period of delay in cases involving young people, and deserves further scrutiny.

4.2 Waiver

[21] The Crown submits that Mr. H. waived his 11(b) rights by agreeing to certain proposed adjournment dates. I do not agree. I have reviewed the transcripts of those appearances. Mr. H., who attended most appearances by video, was focussed on getting back to a Federal institution, but I do not view the comments he made as a waiver. By January 21, 2014, Mr. H. was complaining at each appearance about a lack of disclosure.

4.3 Reason for the delay

[22] Defence position is that little or no delay should be assessed as neutral. The defence factum allows one month as a neutral intake period and credits one week against the defence because September trial dates offered by the court were not available to them. The defence asserts no time was required for the Crown to make disclosure because officers’ notebooks had “been available for years”. Because defence counsel had individual (but not mutually agreeable) dates available for trial prior to the first available date from the court, all the time after April 10, 2014 (when the dates for the motion and trial were set), except for the one week mentioned above, is characterized as institutional delay. The defence view allows no time to prepare for and conduct the 11(b) motion (which counsel scheduled on April 10, 2014) or to prepare for and conduct the trial itself.

[23] The Crown concedes that some time should be credited against it for delay in disclosure—9 weeks with respect to Mr. D., and 3 weeks with respect to Mr. H. The Crown also submits that 26 weeks should be assessed as institutional delay--time between the scheduling and the conduct of a JPT, the adjournment required to set the trial date after the JPT, and most of the delay between the JPT and the scheduled commencement of the trial. According to the Crown’s view, two weeks’ time should count against the defendants as counsel was not available on trial dates offered for September 2014. The remaining time is allocated by the Crown to “neutral/intake” or to the inherent time requirements of the case.

[24] The two issues upon which the parties are divided are:

• What is a reasonable period of time for the neutral intake period?
• How should the period between April 10, 2014 (the date upon which the trial dates were set) and the scheduled conclusion of trial be characterized?

[25] I do not agree entirely with either of the analyses offered. At the outset, I note that the court is not bound by any concessions made by the Crown.

4.3.1. Neutral intake period

[26] Some of the activities conducted in the neutral intake period required little or no time in this case. Each defendant retained counsel quickly. Virtually no time was required to arrange bail, as Mr. H. was already serving a custodial sentence and Mr. D. was released within a day of his arrest.

[27] Disagreement as to the reasonable time which should be allocated to the disclosure process is at the root of the differences in time allocation for this period by the Crown and the defence.

Pre-charge delay

[28] The defence concedes that pre-charge delay cannot be directly factored into the timeline on an 11(b) motion.[^18] However, the defence argues that significant pre-charge delay in this case should affect the court’s assessment of what post-charge time is reasonable to allow for production of disclosure. Defence alleges that no time should be allowed—that disclosure was in existence and should have been produced at the time the defendants were charged.

[29] As already indicated, the Crown concedes that some time should count against it for delayed disclosure, but it submits that the time which is considered reasonable for disclosure should not be reduced by any consideration of pre-charge delay, and urges the court to consider the realities of criminal litigation. In this case, the disclosure consisted of not only the initial CFS reports but notebooks from many officers involved in the investigation which took place seven years ago. Those notebooks were not sitting neatly in one place. They had to be located and collected, and then reviewed and organized by the Crown before production. Some of the officers involved had left the force or retired, and some had been transferred to other divisions. There appear to have been 14 officers whose notes were collected.

[30] The Ontario Court of Appeal has observed that there can be no “hard and fast rule that in all cases in which investigation has been lengthy, that the Crown must be ready to make disclosure on the day charges are laid” or within any specific time following.[^19] In R. v. Kporwodu[^20] the Court upheld a trial judge who found that because of a pre-charge delay of 14 months that the 2/12 months delay post-charge for the Crown to furnish initial disclosure was unacceptable. In R. v. Schertzer[^21] the Court disagreed with a trial judge who found that a pre-charge delay of some 2 ½ years justified shortening the time post-charge required for disclosure. The Court of Appeal in that case referred to R. v. Atkinson, an earlier appellate decision on the issue, which cautioned that, “Some deference should be given to decisions made concerning the commitment of investigative resources to a particular matter, just as deference must be given to political decisions concerning the provision of court-house facilities and Crown attorneys”.[^22]

[31] In all three cases cited above, charges were laid at the conclusion of a lengthy ongoing investigation. Here, there was a gap of over 6 years between the crime and initial investigation and DNA hit and the decision to lay charges. An investigative team had to be assembled afresh, and evidence scattered in several places collected. In my view, it is not appropriate to shorten what would otherwise be considered appropriate time for the disclosure process in this case.

Post-charge delay

[32] That leaves the issue of whether the time the Crown took after charges were laid to make disclosure was reasonable. The Crown concedes that some of this delay was unreasonable.

[33] Disclosure which is expected from the Crown in this initial intake period before a trial date is set is that which is sufficient for a defendant to make a decision about plea and, if required, as to his election. In this case the defence argued that the initial disclosure furnished on January 2 and 6, 2014 was insufficient for this purpose, and the Crown agreed. Defence counsel agreed that the further disclosure made in February was sufficient for their clients to make informed decisions as to plea. That disclosure--consisting of the CFS reports as to the DNA hits, the occurrence report, Mr. D.’s statement, and notes from officers indicating where the glove and balaclava were located in relation to the scene of the robbery--was made on February 7 and 26, 2014.

[34] Thus, there was a delay in furnishing adequate initial disclosure of 5 months for Mr. D. (September 19, 2013- February 26, 2014) and of almost three months for Mr. H. (December 4, 2013-February 26, 2014). In my view, 2 ½ months was a reasonable period to allow for the Crown to have provided this disclosure to Mr. D. For Mr. H, in view of the fact that the disclosure required was almost identical to that to be provided to Mr. D, disclosure should have been ready within two weeks of the date of the charge. Therefore, I will credit the Crown with responsibility for delay in making disclosure in excess of those periods.

[35] The balance of the time up to the date of the initial JPT on March 20, 2014 I consider to be neutral intake time, time required to review disclosure provided, submit requests for further disclosure, to arrange for the joinder of the defendants, and to initiate the process to obtain the required blood samples from the defendants.

[36] I also include in the neutral intake period the time required to arrange for the JPT. On March 4, 2014, the parties set a date for a judicial pre-trial -- March 20, 2014, the first date available to the court. Defence counsel indicated availability on March 10th, and assert that the period following be characterized as institutional delay. I do not consider a wait of 16 days to schedule a JPT as unreasonable, and have characterized the period between March 4th and March 20th as neutral, part of the inherent time requirements of the case. The date of the pre-trial is also part of the inherent time required for the case.

[37] However, the three-week adjournment to April 10, 2014 to set a trial date, required because the trial coordinator was unavailable on the earlier date, is clearly attributable to institutional delay.

4.3.2 Time after trial date set to trial

[38] In my view, all time after the trial date was set on April 10, 2014 is attributable to the inherent time requirements of this case.

[39] Institutional time does not begin to run until the defendants are ready to go to trial and the system cannot accommodate them. The record does not indicate that defence counsel had any mutually agreeable dates to conduct the 5 day trial prior to the trial dates scheduled for November. It is not sufficient for one counsel to state on the record that she has “some days in June”, unless her friend can confirm that she is available for the same days. In R. v. Prins, 2013 ONSC 458, Justice John Murray dealt with an 11(b) application. He found that, as defence counsel had not stated with specificity on the record that he was available for trial on any specific date prior to the date set for trial, the fair inference was that counsel’s earliest available date was the trial date set. I draw the same inference in this case, as applied to the two defendants.

[40] Even if defence counsel had established on the record mutual availability for trial prior to the scheduled trial dates, I cannot agree with defence submissions that all but one week of the time between April 10, 2014, to the commencement of trial constitutes institutional delay. That approach ignores the realities of the criminal litigation process referred to in the appellate decisions cited.

• Reasonable time must be allotted to preparation for trial. I agree with the Crown, given the issues in this case, that the parties could not reasonably have been expected to commence a trial before six weeks after the trial date was set, even if counsel was available.
• The time required to prepare for and argue the section 11(b) motion, and the gap between argument of the motion and commencement of the trial further extend the delay necessary before a trial could commence. I would allow as reasonable one week for the preparation for and argument of the motion, and six weeks after the motion to allow for delivery of the decision and further preparation for trial.
• I agree with the Crown that it is more difficult and there is more reasonable delay involve in scheduling a longer trial than in a short 1 or half day matter.

Total allocation of time

[41] With respect to Mr. D, I find the delay from charge to trial to be reasonably allocated as follows:

Intake period

Crown delay in disclosure 2 .5 months

Neutral intake period

(from Sept. 19, 2013 to March 4, 2014, 3 months

when parties ready to set JPT,

less time for Crown delay)

Further inherent time (from .25 month

March 4 when JPT

scheduled to March 20 JPT

when parties ready to

set trial date)

Institutional delay (between .75 months (3 weeks)

March 20 and April 10 set date)

From set date to trial

Inherent time (from April 10 7.5 months

to and including motion and

end of trial)

Total delay = 14 months

Total institutional and Crown delay = 3.25 months

[42] With respect to Mr. H, I find the delay from charge to trial to be reasonably allocated as follows:

Intake period

Crown delay in disclosure 2.5 months

Neutral intake period (from Dec. 4, .5 months

2013 to March 4, 2014, when parties ready

to set JPT, less time for Crown delay)

Further inherent time (from .25 month

March 4 when JPT

scheduled to March 20 JPT

when parties ready to

set trial date)

Institutional delay (between .75 months

March 20 and April 10 set date)

From set date to trial

Inherent time (from April 10 7.5 months

to and including motion and

end of trial)

Total delay = 11.5 months

Total institutional and Crown delay = 3.25 months

Prejudice to the defendants

[43] In determining section 11(b) applications, it is important to note that the Charter protects against prejudice to a defendant arising from delay in disposing of a charge, not from the fact of being charged in itself.

[44] The defendants both allege that they are prejudiced by the pre-charge delay in this matter, stating that they cannot now recall what they were doing or where they were on December 17, 2007. They do not allege that this factor is relevant with respect to the post-charge delay; in other words, they do not say that they had a memory of the events on the day of the robbery on the day they were charged, a memory that has grown dim since the charge. I do not consider these allegations on this motion. They are relevant to the section 7 motion which will be considered at trial.

[45] The evidence from the defendants as to prejudice refers to the effects on each of them of facing the charges, not on the specific effects of alleged delay in this case. Both worry about the pending trial. Mr. D. plans to go to college in September or January, and finds it difficult to plan his future because he does not know “what the outcome of my case will be”. Mr. H. also speaks of the anxiety these charges have caused, and complains that because of the charges he was transferred from a federal institution to a provincial jail where he stayed for some months, interrupting his programming at the federal location.

[46] I appreciate that the period of unjustified or unreasonable delay in this case has subjected each defendant to worry and anxiety for a longer period than necessary—about 3 months of unreasonable delay, as calculated above.

Conclusion

[47] I find that the time to trial for each of these defendants is reasonable.

Crown and institutional delay in each case is three months. This period is well within the range of a period seen as reasonable under the guidelines for young persons. Neither defendant has suffered significant prejudice from this delay. Any prejudice they suffer is eclipsed by the interest of society in having the serious firearms charges they face tried on the merits.

[48] I dismiss the defendants’ application to stay the charges because of delay in the case coming to trial.

Released: October 1, 2014

Justice E.B. Murray

[^2]: 2013 O.J. 1131

[^3]: As she then was.

[^4]: R. v. Richards, (2010) O.J. 4598 (S. C.J.) at para. 18

[^5]: R. v. Lahiry, 2011 ONSC 6780, para.19-22.

[^6]: R. v.Tran, 2012 ONCA 18, para. 34

[^7]: R. v. Kovacs-Tator, (2004) 2004 CanLII 42923 (ON CA), O.J. 4756 (C.A.), para. 47; R. v. Lahiry, supra, para.107; R. v. M. (N.N.), (2006) 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.), para. 37; R. v. Egger, (1993) 82. C.C.C. (3d) 193 at 203-204 (S.C.C.)

[^8]: R v. Tran, , supra, para. 34

[^9]: 2012 ONSC 1132

[^10]: R. v. Tran, supra, para. 32

[^11]: R. v. Lahiry, supra, para. 34

[^12]: R. v. Emmanuel, supra, para. 17; R. v. Lahiry, supra, para. 40; R. v. Schertzer, 2009 ONCA 742, para. 114

[^13]: R. v. Tran, supra, para. 39; R. v. Lahiry, supra, para. 31

[^14]: R. v. L.G., (2007) 2007 ONCA 654, O.J. 3611 (C.A.) at para. 63; R. v. D.K. & J.F., (2012) O.J. 3902 (O.C.J.) at para. 26

[^15]: R. v. Schertzer, 2009 ONCA 742, para. 114

[^16]: Counsel for Mr. H. asserts that it should be calculated from the date of his arrest. I do not accept that contention. The argument was rejected in R. v. Mills, (1986) 1986 CanLII 17 (SCC), 1S.C.R. 863; see also R. v. Lahiry, supra, para.134.

[^17]: (1991) 1991 CanLII 7057 (ON CA), O.J. 885

[^18]: R. v. Milani, 2014 ONCA 536.

[^19]: R. v. Kporwodu, 2005 CanLII 11389 (ON CA), 75 O.R. (3d) 190, para. 58

[^20]: At para. 58 & 59

[^21]: At para 126-131

[^22]: (1991) 1991 CanLII 7113 (ON CA), 68 C.C.C. (3D) 109 (Ont. C.A.) In that case, initial disclosure required 5 ½ months, and the defence argued that the time should have been shortened or eliminated because of the lengthy pre-charge investigation which took place.