Court File and Parties

Date: September 16, 2015

Court File No.: 13-17049

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jason Ancheril, Omar Brooks and Samantha Curow

Before: Justice Paul F. Monahan

Heard on: August 31 and September 1, 2015

Reasons for Decision on the s. 11(b) Charter Application

Released on: September 16, 2015

Counsel:

Ms. S. Thompson — for the Crown

Mr. J. Bogle — for the defendants

MONAHAN J.:

Introduction and Overview

[1] On or about November 10, 2013, Jason Ancheril, Omar Brooks and Samantha Curow were arrested in Mississauga. They were each charged with four counts of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (the "CDSA"). It was alleged that each of the three accused was in possession for the purpose of trafficking of the following four drugs: 7.42 grams of cocaine; 3.33 grams of MDMA, 30.75 grams of methamphetamine [these are all schedule I narcotics] and 484.47 g of marijuana [a scheduled II narcotic]. A fourth accused was also charged but she was let out of the proceedings at some point and her involvement is not relevant to this application.

[2] The charges concerning the cocaine, the MDMA and the methamphetamine allege straight indictable offences which permit an accused person to seek a preliminary inquiry in the Ontario Court of Justice and a trial in the Superior Court. The fourth charge relating to the possession of marijuana for the purpose of trafficking is an offence which falls within the absolute jurisdiction of the Ontario Court of Justice and does not, in and of itself, permit the holding of a preliminary inquiry and a trial in the Superior Court. However, because this absolute jurisdiction offence was joined in the same proceeding as the straight indictable offences, it could be tried in the Superior Court after a preliminary inquiry in the Ontario Court of Justice (see s. 468 of the Criminal Code of Canada (the "Code")).

[3] Toronto police were involved in the investigation of the accused persons and they ultimately obtained a search warrant for an apartment in the City of Mississauga in Peel Region which was apparently leased to Mr. Brooks and Ms. Curow. The search warrant was executed in Peel Region and the arrests of all of the accused took place there. The charges were initially laid in Toronto. The police apparently chose to bring the accused persons in police custody to the Ontario Court of Justice at Old City Hall in Toronto where they were released the next day (November 11, 2013) on certain conditions.

[4] The three accused bring this application alleging a violation of s. 11(b) of the Charter, namely the right to be tried within a reasonable time. There were a number of issues between the parties on the s. 11(b) application. However, the three primary issues between the parties were as follows:

(i) The Crown disclosure issue. How should the time between November 10, 2013 in April 8, 2014 be treated for the purpose of the s. 11(b) analysis? In particular, how much time should be allocated for the Crown to make disclosure?

(ii) The Toronto/Brampton issue. The case was required to be transferred from Toronto's Old City Hall to Brampton. The amount of delay associated with this transfer must be determined and responsibility for the delay must be allocated pursuant to the s. 11(b) analysis.

(iii) The preliminary inquiry issue. The preliminary inquiry started in this matter on April 14, 2015. After the morning break on the first day of the preliminary inquiry, the balance of the time set aside for the preliminary inquiry was vacated and trial dates were set in the Ontario Court of Justice for August 31 to September 2, 2015 inclusive. The issue is how the time between the setting of the preliminary inquiry date on June 27, 2014 and the anticipated completion of the trial on September 2, 2015 should be treated for the purpose of the s. 11(b) analysis.

[5] The trial was scheduled to commence on August 31, 2015 and continue on September 2 and 3, 2015. The s. 11(b) application was to have been heard first on June 3, 2015 but defence failed to file any materials and that date needed to be vacated. The s. 11(b) application was then scheduled for July 29, 2015 but the Crown took the position that the defence's materials were deficient and the defence did not disagree and as a result the s. 11(b) application was put over to the first day of trial namely August 31, 2015. I heard the s. 11(b) application for most of the day on August 31 and into the afternoon of September 1, 2015.

Legal Framework

[6] The Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771 at para. 31 confirmed the well-established legal test for a s. 11(b) Charter application. The accused must show a breach of s. 11(b) on the balance of probabilities. The Court must consider the following four factors:

(i) the overall length of the delay;

(ii) whether the accused has waived any of the delay;

(iii) the reasons for delay; and

(iv) any prejudice to the accused.

[7] The Court must make findings with respect to the above four factors and then the Court must undertake a balancing analysis wherein the Court considers whether the delay is unreasonable, having regard to the interests of the accused, including any actual or inferred prejudice suffered, and society's interest in having the matter tried on the merits. Before staying the charges, the Court must be satisfied that the interests of the accused and society in a prompt trial outweigh the interests of society in bringing the accused to trial (R. v. Ignagni (2013), 2013 ONSC 5030, 49 M.V.R. (6th) 19 (Ont. S.C.J.) at para. 5).

[8] A guideline of 8 to 10 months is to be used by provincial courts to assess institutional delay, but deviations of several months in either direction can be justified, depending upon the presence or absence of prejudice (R. v. Morin, supra at para. 76). The Ontario Court of Appeal has suggested that the guideline for a straightforward case in the Region of Peel is 8 to 9 months (R. v. Rego, [2005] O.J. 4768 (Ont. C.A.) at para. 4). In another case, the Supreme Court of Canada indicated on the facts of that case that the lower end of the Morin guidelines should apply in Peel (R. v. Sharma, [1992] 1 S.C.R. 814 at pp. 827-28). I do not interpret these cases as permanently adjusting the Morin guidelines in all cases heard in the Ontario Court of Justice in Peel. Rather, I interpret these cases as indicating that for a straightforward case in Peel, the lower end of the guidelines is a desirable objective. The Courts have also made it clear that the guidelines are not limitation periods (R. v. Tran (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177 (Ont. C.A.) at para. 63).

[9] Where there is committal for trial in the Superior Court an additional period of institutional delay of up to 6 to 8 months is permissible. This is because after committal for trial the parties must deal with an entirely different court and its own resource and scheduling issues (R. v. Morin, supra at para 55).

[10] Prejudice can be actual or inferred. Inferred prejudice can result from a prolonged delay. As the Supreme Court of Canada said in Morin, "the longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined" (R. v. Morin, supra at para. 61).

[11] Prejudice will not usually be inferred unless the delay is "substantially longer than can be justified on any acceptable basis" (R. v. Smith, [1989] 2 S.C.R. 1120 at p. 1122; see also R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.) at para. 147). Moreover, prejudice which results from the inherent time requirements of the case or the actions of the accused is to be accorded no weight. (R. v. Ignagni, supra at para. 74).

[12] It is the Crown that has the obligation to bring the accused to trial. However, inaction by an accused may be considered when assessing the degree of prejudice. In some circumstances, it may be found that the accused is "content with the pace" of the litigation and this can undermine a claim to prejudice (R. v. Morin at paras. 62 and 78).

[13] The case law is clear that delay attributable to Crown action or failure is a matter of particular concern and should be given more weight in favour of the defence than mere institutional delay. See for example R v. Yun (2005), 21 M.V.R. (5th) 236 (Ont. Sup. Ct.) at para. 42.

[14] Turning to an analysis of the four factors:

(i) The Overall Period of Delay

[15] In this case, the overall period of delay runs from the time the charges were laid on November 10, 2013 until the date the trial was scheduled to be completed on September 2, 2015, a period of approximately 22 months. I note that when I indicated to the parties on August 31, 2015 that I would be deferring my ruling on the s. 11(b) application, the defence confirmed that they were unable to proceed with trial proper on September 2 and 3 as one of the defence counsel had a medical emergency a few days before the scheduled trial date and as a result the defence had to request an adjournment of the trial dates of September 2 and 3, 2015. The matter is now not scheduled to go to trial until April 2016 but the s. 11(b) application was argued on the basis that there was an overall delay of 22 months between November 10, 2013 and September 2, 2015.

(ii) Whether the Accused Has Waived Any of the Delay

[16] There is no suggestion that any of the accused have waived any of the delay.

(iii) The Reasons for the Delay

[17] Under this heading, the Court must make findings with respect to the reasons for the delay. The burden is on the accused on a s. 11(b) application to prove the reasons for the individual periods of delay (R. v. Lahiry, supra at para. 60). The Court must examine each period of delay and determine for each such period the reasons for the delay categorized as follows:

a) the inherent time requirements of the case which are considered to be neutral;

b) the actions of the accused;

c) the actions of the Crown;

d) limits on institutional resources; and

e) other reasons for the delay.

See (R. v. Morin, supra at para. 3).

Chronology

[18] In order to undertake the s. 11(b) analysis it is necessary to set out a detailed chronology of what occurred. The chronology is as follows:

November 10, 2013 - Toronto police execute a warrant at an apartment in Mississauga apparently leased to Mr. Brooks and Ms. Curow. Mr. Brooks, Ms. Curow and Mr. Ancheril are arrested in the City of Mississauga in Peel Region. The allegations against each of them are possession for the purpose of trafficking with respect to marijuana, cocaine, MDMA and methamphetamine. The prosecution starts at the Ontario Court of Justice located at Old City Hall in Toronto.

November 11, 2013 - There is a show cause hearing held at Old City Hall. The accused are represented by counsel and are released on the consent of the Crown subject to certain curfews and other restrictions and conditions.

November 14, 2013 - The Toronto police deliver the four substances seized when the warrant was executed to Health Canada in order to have them analyzed.

December 16, 2013 - A first appearance takes place at Old City Hall. The Crown advises that disclosure is not ready and the Crown seeks a further four weeks until January 14, 2014.

December 18, 2013 to January 3, 2014 - A Health Canada analyst analyzes the four substances and signs a certificate of analysis and/or analyst report (the "Certificates") with respect to the four substances seized at the time of the execution of the warrant. The Health Canada analyst determines that the marijuana is marijuana, the cocaine is cocaine and the MDMA is MDMA. Importantly, the Health Canada analyst determines that the 30.75 grams of what the police thought was methamphetamine is not methamphetamine at all. It was, in fact, a non-controlled substance known as dimethylsulphone. The certificate relating to the alleged methamphetamine is dated January 3, 2014.

January 14, 2014 - At a Court appearance at Old City Hall, counsel appears for all defendants. Counsel for the defendants specifically inquires about the availability of disclosure. The Crown advises that disclosure is not ready. The Crown asks for a delay until February 20, 2014 in order to make disclosure.

February 20, 2014 - A further court appearance occurs at Old City Hall. The Crown makes disclosure which apparently includes a redacted information to obtain and other materials. It is to be noted that the Certificates are not included in the disclosure although they were most certainly available to the Crown by this date.

March 12, 2014 - A court appearance occurs at Old City Hall. All defendants are represented by Ms. Cheryl Robb who indicates that each defendant will be getting their own counsel. Ms. Robb further indicates that she has held a Crown pretrial two days earlier and, at the Crown's request, has sought a judicial pretrial ("JPT"). The JPT is to take place on April 4, 2014.

April 4, 2014 - A judicial pretrial is held at Old City Hall with all counsel and Justice Shamai. By this point in time, each of the defendants has their own counsel who have remained their counsel throughout. The record indicates that the judicial pretrial judge raised with counsel issues regarding the jurisdiction of the Ontario Court of Justice in the Toronto Region at Old City Hall to hear this matter. Defence counsel indicate that they want to set a preliminary inquiry date but they did not have the availability of all defence counsel as of April 4. The matter was put over to April 8, 2014.

April 8, 2014 - A further Court attendance takes place at Old City Hall. Both the Crown and the defence want to set a date for the preliminary inquiry but the Court will not permit them to do so as the judicial pretrial judge is still considering the jurisdictional issue. Both the Crown and the defence advise the Court that they take the position that there is no jurisdictional issue and they are content to remain in Toronto at Old City Hall for the preliminary inquiry. Also on this same day, Crown counsel writes to the judicial pretrial judge with a copy to all counsel stating that both the Crown and the defence wish to have the matter heard in Toronto. The Crown acknowledges in this correspondence that it is "generally the custom" to have a case heard where the offence takes place. The Crown states that notwithstanding this custom "there is no legal impediment to a prosecution occurring outside municipal boundaries, as long as the territorial jurisdiction remains in the province. Accordingly, there may be circumstances that justify a deviation from the normal custom". The Crown then submits that while the accused were arrested in Mississauga and the "fruits of the investigation" were obtained in Mississauga, the case involved Toronto Police and the investigation apparently started in Toronto. The Crown further states that the prosecution has been "moving along for some time in Toronto and to have it re-located may cause delay and administrative hurdles which may be prejudicial to the defence".

April 11, 2014 - The Local Administrative Judge at Old City Hall, Justice Ronald Boivin, writes to all counsel and states "I have reviewed the Judicial Pre-trial material and I also question why this matter is at Old City Hall. As Justice Shamai indicated the search, seizure and arrest were made outside the Toronto Region and for that reason this matter should be set for trial with the Brampton Trial Coordinator".

April 14, 2014 - A further attendance takes place at Old City Hall. By this time, it is accepted by all parties that the matter will be transferred to Brampton. Crown counsel requests until April 25 to figure out the logistics of how to effect the transfer.

April 25, 2014 - Counsel for the Crown and the defence appear at Old City Hall. A date is obtained to attend on May 9, 2014 at the Ontario Court of Justice in Brampton.

May 9, 2014 - The first court attendance in this matter takes place in Brampton. A further JPT must now be set in accordance with the procedures in Brampton. The evidence on the s. 11(b) is that JPTs in Brampton can be held on Wednesdays or Fridays and can usually be scheduled within two or three days of a request. Defence counsel asks for until June 27, 2014 for the JPT taking into account the schedules of the three defence counsel.

June 27, 2014 - The parties conduct a JPT in Brampton. The preliminary inquiry date is set to be heard in Brampton on April 14 and 15, 2015. Defence counsel did not put on the record any earlier dates. The Court is available to start the preliminary on March 30, 2015 and all parties are available but both parties prefer consecutive days and therefore the April 14 and 15, 2015 dates are selected and agreed upon. A confirmation date of March 13, 2015 is also set.

June 28, 2014 - One of the defence counsel sends a fax to Crown counsel and demands that the Crown "tests drugs ASAP". No response is provided by the Crown to this letter at any time.

March 13, 2015 – At a Court attendance on this day not all defence counsel are in a position to confirm that the preliminary inquiry will proceed as scheduled. There is no mention on the record of the Crown's ability to proceed with the preliminary inquiry as scheduled. The matter is put over to March 20, 2015 for confirmation.

March 20, 2015 - Both the Crown and the defence confirm that the preliminary inquiry is to proceed on April 14 and 15, 2015.

Also on this day the Crown serves an expert report from a senior Toronto Police drug squad officer. The report is not in the required form set out in s. 657.3 of the Code in that it is not signed, it is not dated and there is no affidavit or solemn declaration. The expert does not appear to have the information that the methamphetamine did not test as methamphetamine. He opines that the 7.4 g of cocaine had a value of approximately $640 to $800 and that 3.3 g of MDMA had a value of $180 to $240. While his report is three pages long the key opinion contained in it is only six lines long. He states "I have formed the opinion that there is some inference that the powder cocaine and MDMA seized at the premise were possessed for the purpose of trafficking however this inference is not strong." (emphasis added). He further opines that the marijuana had value ranging from $1630-$4250. He also opines that 30.75 g of methamphetamine would be worth anywhere from $3080 to $6160. He states further that as concerns the marijuana and what was thought to be methamphetamine, "there is a strong inference that they were possessed for the purpose of trafficking".

There was no evidence on the s. 11(b) application as to when this report was asked for, when it was available, when it was received by the police or when it was received by Crown counsel. Crown counsel advised on the s. 11(b) application that it was not received by Crown counsel until March 20, 2015. Defence counsel made the decision not to cross-examine on the Crown's affidavit (from a paralegal) on the s. 11(b) application on the state of the record as it existed in writing (supplemented by oral testimony) before the Court. Accordingly, while I accept Crown counsel's statement in this regard (that Crown counsel did not receive the report until March 20), I consider that it is not fair to the defence to allow the Crown to begin supplementing the record with material facts after the record has already been fixed and the s. 11(b) application is being argued. In any event, on the record before the Court there is no evidence as to when this report was prepared and when the police first had it and, moreover, when the opinion in it was first available to the Crown, whether in writing or verbally.

April 14, 2015 - The Preliminary inquiry starts in Brampton and the Crown begins calling evidence. After the morning break Crown counsel stated as follows:

"during the earlier break, I received the Certificate of Analysis, which indicated that cocaine and the MDMA and the cannabis tested, but the methamphetamine didn't… Prior to that, we received an expert report. The expert report said, in essence, that he wouldn't think that the crack cocaine or the MDMA was for the purpose of trafficking, but the meth and the marijuana was... So, really, at the end of the day, we were doing this preliminary hearing in relation to the meth, which is now not in issue and the marijuana was going to be carrying along, because it's an absolute jurisdiction offence. So, what I -- now, that has come to light we had some discussions. We had talked some resolution. It wasn't something that could not be accomplished, so were going to have to set this down for a trial, in essence. I will asked that the information be amended in relation to the cocaine and the MDMA to reflect simple possession and we'll elect by summary conviction and we will attend at the trial coordinator's office and get some new dates."

In summary, on April 14, 2015, the Crown started the preliminary inquiry and then withdrew all allegations relating to the methamphetamine. The information was amended on consent to drop the possession for the purpose of trafficking with respect to the cocaine and MDMA and to reduce them to simple possession allegations which were hybrid in nature. The Crown then immediately elected to proceed summarily in respect of those offences. All of this was done with the consent of the defence.

The result was that at this point in time there remained three charges against each of the three accused: possession for the purpose of trafficking with respect to the marijuana which falls within the absolute jurisdiction of the Ontario Court of Justice and simple possession with respect to the cocaine and the MDMA, which, once the Crown elected to proceed summarily, also fell within the jurisdiction of the Ontario Court of Justice. The balance of the preliminary inquiry dates were vacated and trial dates set within the Ontario Court of Justice. Trial dates of August 31, September 1 and September 2, 2015 were set. A s. 11(b) motion was scheduled for June 3, 2015.

June 3, 2015 – The s. 11(b) application cannot proceed because the defence had not delivered its application materials. The application was put over to July 29, 2015.

July 29, 2015 - The s. 11(b) application cannot proceed because, while the defence had filed its application materials, it sought to add on the day set for the hearing the fax of June 28, 2014. Crown counsel took the position that they had to have an opportunity to review as to whether or not it was in fact sent and received. As a result, the s. 11(b) is adjourned to the first day of trial, namely August 31, 2015.

Determination of the Issues

[19] As part of my analysis in determining the reasons for the delay I return now to the issues I stated at the outset which help frame the s. 11(b) analysis. The issues are as follows:

Issue 1 - The Crown Disclosure Issue

How should the time between November 10, 2013 and April 8, 2014 be treated for the purpose of the s. 11(b) analysis? In particular, how much time should be allocated for the Crown to make disclosure?

Issue 2 - The Toronto/Brampton Issue

The case was required to be transferred from Toronto's Old City Hall to Brampton. The amount of delay associated with this transfer must be determined and responsibility for the delay must be allocated pursuant to the s. 11(b) analysis.

Issue 3 - The Preliminary Inquiry Issue

The preliminary inquiry started in this matter on April 14, 2015. After the morning break on the first day of the preliminary inquiry, the balance of the time set aside for the preliminary inquiry was vacated and trial dates were set in the Ontario Court of Justice for August 31 to September 2, 2015 inclusive. The issue is how the time between the setting of the preliminary inquiry date on June 27, 2014 and the anticipated completion of the trial on September 2, 2015 should be treated for the purpose of the s. 11(b) analysis.

[20] I will examine each issue in turn.

Issue 1 - The Crown Disclosure Issue

How should the time between November 10, 2013 and April 8, 2014 be treated for the purpose of the s. 11(b) analysis? In particular, how much time should be allocated for the Crown to make disclosure?

[21] The Crown took approximately 3.3 months to make disclosure in this case, namely from November 10, 2013 through to February 20, 2014. The defence submits that disclosure should have been available on the first return date of December 16, 2013 and therefore should have taken no longer than 35 days.

[22] The Crown points to Justice Code's decision in Lahiry where he reviews the various authorities and indicates that a normal intake for a drinking and driving case is two months. Where it is a more complex case, Justice Code indicates that disclosure might take as much as seven months and in a very complex case it might take 11 months (R. v. Lahiry, supra at para. 19).

[23] In this case, the Crown points out that there are 12 officers, three accused, surveillance evidence and evidence resulted to the execution of a warrant. There was an information to obtain which needed to be disclosed once it was vetted. The Crown submits that the time for disclosure which took approximately 3.3 months was reasonable. In my view, this submission is a fair one in the circumstances of this case which certainly at the time that disclosure was made involved four different counts of possession for the purpose of trafficking and was fairly characterized as somewhat complex.

[24] The defence took several weeks to review the disclosure and then again, quite properly, held a Crown pretrial in early March and then a judicial pretrial on or about April 4. The case law is clear that both Crown pretrials and judicial pretrials are necessary in cases such as this one and are all neutral time.

[25] In my view, from November 10, 2013 through to April 8, 2014 when the judicial pretrial process in Toronto was complete and the parties were ready to set dates for the preliminary inquiry is all neutral time. This is approximately five months. I note that there were four days between April 4 and April 8 after which the jurisdiction issue had been raised when the defence counsel were still coordinating between themselves as to their availability for the preliminary inquiry. This is also fairly treated as part of the neutral intake time.

Issue 2 - The Toronto/Brampton Issue

The case was required to be transferred from Toronto's Old City Hall to Brampton. The amount of delay associated with this transfer must be determined and responsibility for the delay must be allocated pursuant to the s. 11(b) analysis.

[26] The Toronto/Brampton issue involves the period from April 8, 2014 when the defence counsel stated that they wished to set dates for a preliminary inquiry in Toronto to June 27, 2014 when preliminary inquiry dates were actually set in Brampton after the case had been transferred there. The Crown submits that the commencement of this case in Toronto was not an "error" or "mistake" and that there should be no Crown delay associated with this issue. The Crown submits that there should be 17 days of institutional delay for the time between April 8 and April 25 when the Crown was sorting through the logistics of the transfer from Toronto to Brampton. The Crown submits that the intake period and the second JPT which occurred in Brampton are all neutral time and that defence counsels' unavailability to conduct a JPT in Brampton until June 27, 2014 resulted in six weeks of delay attributable to the defence.

[27] The defence submits that all of the time from April 8 to June 27, 2014 was Crown delay or, alternatively, institutional delay.

[28] In Penney, Rondinelli and Stribopoulos, Criminal Procedure in Canada (2011), at pages 609 to 614, the authors discuss the intra-provincial issues associated with the jurisdiction of the criminal courts within a province. They point out that there is a long-standing presumption that a person charged with an offence should be tried in the place where the crime allegedly occurred. This is the common-law rule. They further point out that the common-law rule has arguably been abrogated by s. 470 of the Code and that the key determinant is no longer where the offence occurred but where the accused happens to be. Section 470 of the Code provides, in part, that an accused can be tried where "the accused is found, is arrested or is in custody". The authors point out that there are two conflicting lines of authority on the interpretation of s. 470. One line of authority holds that as soon as an accused is before a particular criminal court because he is either found, arrested or in custody in that court's jurisdiction, then that court has jurisdiction over him or her and the common-law rule has indeed been abrogated by s. 470 of the Code. The authors observe that another line of authority, said to be in a minority of cases, takes a narrower view of the s. 470 and indicates, among other things, that jurisdiction is not obtained merely by arresting someone in one jurisdiction and then bringing them to another jurisdiction. The authors point out that the Ontario Court of Appeal has explained that the theory behind the presumption that an accused should be tried where the offence is alleged to have committed is that "each locality in this way be made to bear its proper share of enforcing the criminal law against the local offender" and out of consideration for the prisoner and his family friends and potential witnesses. See R. v. O'Gorman (1909), 15 C.C.C. 173 (Ont. C.A.) at 178.

[29] Turning to the case at bar, there appears to be only one reason why this case was started in Toronto at Old City Hall: it was more convenient for the Toronto Police. All of the three accused before the Court reside in Mississauga and the offences are all alleged to have taken place in Mississauga. In addition, the warrant was executed Mississauga and the arrests took place in Mississauga. There would appear to be little or no connection between the alleged offences in this case and the Toronto Region. Two judges at Old City Hall came to this conclusion when they considered the matter at the judicial pretrial in April 2014 and shortly thereafter.

[30] In my view, while it may be true that the Ontario Court of Justice in Toronto could have exercised its jurisdiction pursuant to s. 470, the Crown was taking a significant risk by commencing this case in Toronto. All of the key factors pointed toward the conclusion that this case should have been started in Brampton in the first place. On April 8, 2014, defence counsel attended at Old City Hall and wanted to set a preliminary inquiry date but they could not do so. Why? There is only one answer. It was due to the Crown's actions in starting this case in Toronto. As a result of the Crown's actions, the case had to be transferred to Brampton where a second intake process had to take place including a second judicial pretrial. The intake and judicial pretrial had already happened at Old City Hall as of April 8. As a result of the Crown's actions in starting this case in Toronto it was not until June 27 that the defence stood in the same position in Brampton that they had been in in Toronto on April 8. This is a period of roughly 79 days or 2.6 months.

[31] The Crown knew or should have known they were taking a significant risk by starting this case in Toronto. Before the decision was made to transfer the case to Brampton, the Crown acknowledged in writing that the custom was to have cases heard where the offence was alleged to taken place but that there might be circumstances that "justify a deviation from the normal custom". The Crown was unable to muster any persuasive reason why the case should be heard in Toronto, pointing only to the fact that the Toronto police were involved.

[32] In my view, the Toronto/Brampton problem was of the Crown's creation and the delay associated with it is Crown delay. I note that in Morin, when the Supreme Court was explaining what actions might constitute actions of the Crown for the s. 11(b) analysis, the Supreme Court stated as follows at para. 46:

As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, changes of venue motions, etc. (emphasis added)

[33] While the case at bar did not involve a change of venue motion by the Crown it did involve a selection of a venue by the Crown which had to be changed for the reasons outlined above. It was clearly a Crown responsibility.

[34] The Crown submits that when the parties attended in Brampton on May 9, 2014, the defence delayed in the setting of the second judicial pretrial by six weeks because a judicial pretrial could have been held within a week after May 9 but the defence was not available to attend until June 27. While it was the Crown's conduct that caused the entire Toronto/Brampton issue in the first place, once the issue was identified, the defence needed to act reasonably. I agree that taking 49 days to hold a judicial pretrial was somewhat too long. In my view, the defence should have been in a position to hold the judicial pretrial within one month of May 9 namely by June 9, 2014. Again, I emphasize that the entire Brampton/Toronto problem was brought about because of the Crown's conduct in starting the case in Toronto in the first place. Defence counsel had already gone through an entire intake, disclosure and JPT process in Toronto and then had to do it all over again in Brampton. The defence was coordinating three defence counsels' schedules and they could not be expected to be in a position to do a judicial pretrial within one week of the first attendance in Brampton.

[35] Accordingly, to summarize, I consider that the Toronto/Brampton issue was brought about by the Crown's conduct and that it delayed the desire by both parties to move forward and set a preliminary inquiry date and that the delay associated with the issue was two months, namely from April 8 to June 9, 2014. There was three weeks of defence delay from June 9 to June 27 and I consider this finding to be generous to the Crown given that the entire problem arose due to its conduct.

Issue 3 - The Preliminary Inquiry Issue

The preliminary inquiry started in this matter on April 14, 2015. After the morning break on the first day of the preliminary inquiry, the balance of the time set aside for the preliminary inquiry was vacated and trial dates were set in the Ontario Court of Justice for August 31 to September 2, 2015 inclusive. The issue is how the time between the setting of the preliminary inquiry date on June 27, 2014 and the anticipated completion of the trial on September 2, 2015 should be treated for the purpose of the s. 11(b) analysis.

[36] This issue involves a consideration of the time frame from June 27, 2014 through to the scheduled anticipated end of the trial on September 2, 2015, a period of some 14 months.

[37] Broadly speaking, it is the Crown's position that pursuant to the approach in Lahiry, 30 days should be deducted as neutral time for the preparation and clearing of counsels' calendars for the preliminary hearing; and a further 60 days should be deducted for trial preparation. The result is the Crown submits that there is just over 11 months and 5 days of institutional delay during this time frame.

[38] I note as well that the Crown submits that this is a special case because it started down the preliminary inquiry path at the defence's request and then, on consent, shifted towards a trial in the Ontario Court of Justice. The Crown submits that the guidelines by which this case should be judged are those applicable to cases where committal occurs at a preliminary inquiry so that one takes the Morin guidelines for institutional delay associated with the time to trial in the Ontario Court of Justice, namely 8 to 10 months, and adds the further 6 to 8 months contemplated by the guidelines for cases where there is committal to trial in the Superior Court after a preliminary inquiry. Accordingly, it is the Crown's submission that this case should be judged against a 14 to 18 month guideline.

[39] The Crown submits that the overall institutional delay in the case is roughly 12 months (the just over 11 months and 5 days described above between June 27, 2014 and September 2, 2015 as well as 17 days of institutional delay it acknowledges arose in the Toronto/Brampton transfer issue). In the alternative, the Crown submits that even if the 8 to 10 month Morin guidelines apply, the 12 months is not that far off and this case ought not to be stayed taking into account issues of alleged prejudice and balancing which are all part of the analysis.

[40] The defence's submission is that looking at the period from June 27, 2014 to September 2, 2015, 30 days should be deducted for trial preparation but that the balance of the time is attributable to Crown delay or, alternatively, to institutional delay. The defence further submits that the 8 to 10 month Morin guidelines for provincial court matters apply in this case.

[41] I will consider first the Crown's submission that the Morin guidelines should permit 14 to 18 months of institutional delay in a case such as this one. In my view, the Crown's submission is without merit and the provincial court guidelines laid down in Morin should apply. The reason the Supreme Court of Canada permitted 6 to 8 months of additional institutional delay for trials in the Superior Court was because "…after committal they must cope with a different Court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay" (see Morin supra at para. 55). In this case, the proceedings never left the Ontario Court of Justice. The parties never had to deal with an additional system of a different Court. There can be no reason in principle to extend the Morin guidelines past the usual guidelines applicable to provincial court matters.

[42] I turn now to the question of how the approximately 14 months between July 27, 2014 and September 2, 2015 should be treated in the s. 11(b) analysis. The Crown's submission is that it was the defence who set the preliminary inquiry date and that it was perfectly proper for the Crown to join them in the setting of that date.

[43] There is no dispute between the parties that the defence acted reasonably in requesting a preliminary inquiry in the face of three straight indictable possession for the purpose of trafficking charges as the case stood at the end of June 2014. I agree that the defence acted reasonably in this regard.

[44] The Crown acknowledges that the Certificates should have been disclosed in response to the June 28, 2014 request for them from the defence but, the Crown submits, this would not have changed anything. The Crown's position would appear to be that there was no obligation to disclose the Certificates at an earlier time. The Crown acknowledges that the disclosure of the Certificates would have led and did lead to the withdrawal of the possession for the purpose of trafficking with respect to the methamphetamine. However, the Crown further submits that it was not until the delivery of the expert report on March 20, 2015 that frailties emerged with the Crown's case with respect to the cocaine and the MDMA possession for the purpose of trafficking charges. The Crown further submits that the expert report was delivered within a reasonable time prior to the preliminary inquiry as contemplated by s. 540. The Crown submits that it exercised its discretion to amend the information to reduce the cocaine and MDMA charges to simple possession and to elect to proceed summarily on those charges. The Crown submits that it could have continued with the (straight indictable) charges of possession for the purpose of trafficking with respect to the cocaine and the MDMA on the basis that what was thought to be methamphetamine was, in fact, a non-controlled substance known as dimethylsulphone and that this substance is a "cutting agent". The Crown submits that this fact could have bolstered the argument that the cocaine and the MDMA were possessed for the purpose of trafficking. (I note that the only evidence on the s. 11(b) application that dimethylsulphone is actually a "cutting agent" comes from a paralegal working in the Crown's legal office without any explanation as to how she knows that.)

[45] I take a different view than the Crown on the issue of the period of time from June 27, 2014 through September 2, 2015. I am of the view that a significant portion of that time was Crown delay. It is clear to me that the Crown laid very serious charges against the three accused, namely four counts of possession for the purpose of trafficking and then failed to diligently prepare the Crown's case and to review the reasonable prospects of conviction on an ongoing basis as they were obligated to do.

[46] It is trite to say that the Crown is not an ordinary litigant. The role of the Crown counsel is well known but some observations are worth stating here:

(i) the Ontario Court of Appeal has stated "by reason of the nature of our adversary system of trial, a Crown prosecutor is an advocate; he is entitled to discharge his duties with industry, skill and vigour. Indeed, the public is entitled to expect excellence in his counsel. But a Crown prosecutor is more than an advocate, he is a public officer engaged in the administration of justice …" (R. v. Savion and Mizrahi (1980), 52 C.C.C. (2d) 276 (Ont. C.A.) at p. 289);

(ii) "the role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty then which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed within an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. (Boucher v. The Queen, [1955] S.C.R. 16 at pp. 23-4 (per Rand J.));

(iii) "[Translation] The position of Crown counsel is not that of counsel in a civil matter. His functions are quasi-judicial" (per Taschereau J. in Boucher, supra at p. 21);

(iv) "… the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done" (R. v. Stinchcombe, [1991] 3 S.C.R. 326 at para 12);

(v) the Recommendations and Opinions of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the "Martin Committee Report") included the following recommendations:

(a) "the Committee recommends that the Attorney General's agents should be required to conduct their post-charge review prior to setting a date for a preliminary hearing or trial" (para 23); (my emphasis)

(b) the Committee recommends that the investigators should provide to Crown counsel for the purposes of screening charges, all information necessary to ascertain if the threshold test for conducting a prosecution has been met, and all information necessary to assess the impact of all relevant public interest factors in the prosecution. This material will necessarily include, but will not be limited to, that which is required for disclosure" (para. 24); and

(c) "the Committee recommends that the Attorney General require his or her agents to be duly diligent in making efforts to obtain all information that relates to a case for purposes of screening and disclosure" (para 25). (my emphasis)

(vi) The Criminal Rules of the Ontario Court of Justice provide, in part, that "the fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently". All parties and counsel are obligated to act in accordance with that objective. Prior to a judicial pretrial the rules provide that "it is desirable for the parties to… review the file".

[47] In my view, the Crown's lack of diligence in the case resulted in very serious charges being left outstanding against the three accused for 17 months (from November 10, 2013 to April 14, 2015). If it had proceeded diligently, the Crown would have known much sooner than it did that three of the four possession for the purpose of trafficking charges were of little or no merit. When I speak of the Crown in this context I am referring to both Crown counsel and the police taken together without meaning to be critical of any one person involved in the matter (and I note that Crown counsel who argued the s. 11(b) application was not the counsel who had general carriage of this proceeding). There appears to have been poor communication between the Toronto Police and Crown counsel. The Crown's lack of diligence with respect to this prosecution is clear on the record based on at least the following three facts:

[48] First, the police took almost immediate steps to analyze the four substances that had been found when the warrant was executed. The Certificates on their face disclose that three days after the charges were laid, on November 14, 2013, the police delivered the substances to Health Canada which had completed its analysis of those substances by no later than January 3, 2014 when the Certificates were signed. The Certificates disclose that Health Canada concluded, among other things, that the methamphetamine was not methamphetamine. I note that the alleged methamphetamine was the largest quantity of what was thought to be the three schedule I drugs.

[49] Disclosure was made by the Crown on February 20, 2014 but it did not include the Certificates which would have shown that there was absolutely no reasonable prospect of conviction with respect to the possession for the purpose of trafficking with respect to the methamphetamine. There is no suggestion that the Crown deliberately failed to disclose the Certificates. The other possibility is that the Toronto police failed to follow up with Health Canada to obtain the certificates and/or did get them but then failed to provide them to Crown counsel who was making the disclosure. This appears to be what happened in this case although it is somewhat unclear on the record. However, the failure of the Crown to explain its position on the record does not assist it. It is unanswerable that the Crown should have been diligent with respect to obtaining the Certificates and they should have been part of the disclosure on February 20, 2014. The Crown argues that the defence did not ask for the Certificates until June 28, 2014 and that, as a result, they did not have to be disclosed until that time. In my view, this submission has no merit. A general request for disclosure was made by the defence on January 14, 2014. The Certificates were critical disclosure and were available to the Crown (with reasonable diligence) by no later than on or about January 3, 2014. The Certificates should have been part of the disclosure on February 20, 2014. In the alternative, even if somehow the Certificates as a whole did not need to be disclosed as part of the February 20, 2014 disclosure (and I think the position is otherwise), the certificate concerning the methamphetamine had to be disclosed as soon as it was available to the Crown acting diligently and that was at the beginning of January 2014. The Crown could not sit on disclosure which showed conclusively that one of the serious charges it had laid had no merit whatsoever. Accordingly, the Crown, acting diligently, should have withdrawn the methamphetamine possession for the purpose of trafficking charges in January/February 2014. It failed to take this step until 15 months later, on April 14, 2015.

[50] Second, when the Certificates were demanded in writing by the defence on June 28, 2014 (after the judicial pretrial held in Brampton on June 27, 2014), there was no response from the Crown. It is true that there was no further follow-up by the defence but there did not need to be. The Crown's failure to respond to the June 28, 2014 fax supports my conclusion that that the Crown was not paying sufficient attention to this case.

[51] Third, notwithstanding that by March 20, 2015 the Crown had in its possession the Certificates which had been in existence at that point for 14.5 months and which confirmed that the methamphetamine was not methamphetamine and the expert report indicating that the inference of trafficking with respect to the cocaine in the MDMA was "not strong", the preliminary inquiry actually started with the tendering of evidence on April 14, 2015. The preliminary inquiry started even though the entire reason for it related to the methamphetamine possession for the purpose of trafficking charges which had no merit at all. In this regard, I note that Crown counsel stated at the preliminary inquiry: "so, really, at the end of the day, we were doing this preliminary hearing in relation to the meth" (my emphasis). Crown counsel (who I repeat was not Crown counsel on the s. 11(b) application) was apparently handed the Certificates by the police on the morning break of the first day of the preliminary inquiry. This led to the immediate collapse of the preliminary inquiry and the changes to the charges. The Crown's submission on the s. 11(b) application that the Crown could have sought to proceed with the straight indictable offences of possession for the purpose of trafficking with respect to the cocaine and the MDMA and that the change in approach that was taken at the preliminary inquiry required the exercise of the Crown's discretion. The record reflects that common sense prevailed and Crown counsel immediately took steps to withdraw the methamphetamine charges entirely and to reduce the cocaine and MDMA to simple possession cases and to proceed summarily. Putting aside the detail of what happened on April 14, 2015 and without meaning to be critical of Crown counsel, what occurred that day leads to only one conclusion: the Crown had done either nothing or very little to prepare for the preliminary inquiry and was essentially figuring out its case as it went long.

[52] As indicated above, on the s. 11(b) application, the Crown seemingly acknowledged that the Crown was negligent with respect to the Certificates, at least by not disclosing the Certificates in response to June 28, 2014 fax. However, the Crown submits that the key was the expert report and that it was not available until March 20, 2015. The Crown submits that frailties in its case on the cocaine and the MDMA charges did not emerge until this time (March 20, 2015). As noted above, the expert report is not dated. In addition, the record does not reflect when Crown counsel received the expert report although I accept the statement of counsel on the s. 11(b) that it was not received by Crown counsel until March 20, 2015. However, what is missing on the record in this case is any evidence as to when that expert report was first sought by the Crown and when the information contained in it was available to the Crown (the police and/or counsel), orally or in writing. I fail to see what weight can be given to the Crown's submission that no frailties emerged with the Crown's case on the cocaine and the MDMA until the expert report was disclosed on March 20, 2015 when the Crown fails to explain when the report was first sought and when the information contained in the report was available, orally or in writing. I recognize that it is the defence's onus on a s. 11(b) application to establish the reasons for the delay. Having said that, in my view, the Crown cannot fairly make a submission that there were no frailties with respect to its case on the cocaine and MDMA until March 20, 2015 and yet not put forth any evidence to state what steps it took and when it took them with respect to the undated expert report. Alternatively, if it really was the case that no weaknesses emerged on the cocaine and MDMA possession for the purpose of trafficking charges until March 20, 2015, that would be due to the Crown's failure to diligently figure out its case until 17 months into the prosecution, an unreasonable period of time in my view.

[53] As the Crown would have it, it is acceptable Crown conduct to lay multiple drug trafficking charges against three individuals and then fail to diligently proceed with the prosecution and to conduct a judicial pretrial and to allow preliminary inquiry dates to be set without properly reviewing the file and without properly considering on an ongoing basis whether there was a reasonable prospect of conviction.

[54] The Crown took immediate steps after the charges were laid to test the four drugs. This process began within four days after the charges were laid by the sending of the substances to Health Canada. This is what one would expect would happen, namely that the police would diligently go about preparing the case to proceed and that they would begin to do so immediately after the charges were laid. As indicated above, the difficulty is that there was no proper follow-up with respect to the Certificates as they did not come to the attention of Crown counsel until 17 months later.

[55] One of the central Crown's submissions on the s. 11(b) application is that the defence cannot prove what would have happened had the Crown not been negligent and had actually complied with its obligations to disclose the Certificates. This is not a meritorious submission in my view. In this case, the Crown's own negligence does not work in its favour on the s. 11(b) analysis. It is fair and appropriate that this Court draw reasonable inferences based on the record as to what would have happened had the Crown complied with its disclosure obligations and had not been negligent in this regard. The Crown should have known that it had no prospect of conviction on the methamphetamine by early January 2014 and, once that conclusion was reached, the defence should have been advised and the charges immediately dropped on the methamphetamine. If this had happened as it should have there can be little doubt that the course of this proceeding would have looked very different from what actually transpired in this case. In my view, it would have compelled the Crown, acting reasonably, to focus carefully on the cocaine and the MDMA to figure out whether it had a reasonable prospect of conviction with respect to those charges. It is also reasonable to infer that had Crown complied with its obligations on the dropping of the methamphetamine charges that the defence would have also focused on the cocaine and the MDMA possession for the purpose charges. After all, it was the defence that was insisting that the drugs be tested and it was the Crown that had the test results all along but had failed to disclose them until the preliminary inquiry. Clearly, like in many possession for the purpose of trafficking cases, an expert's opinion on the quantity of the drug as well as the surrounding circumstances was going to be critical to the prosecution (see MacFarlane, Frater and Proulx, Drug Offences in Canada (3rd edition) at para. 6.480). As concerns the expert report, it is clear to me that the very straightforward conclusions and information contained in it should have been, with reasonable diligence, available to the Crown by the time the judicial pretrial was held on June 27, 2014. That is not to say that the Crown was required to have the expert report in writing by that time or to serve it by that time nor is it to draw any conclusion that the expert that was ultimately used would have been available to do the report by this time. It is the Court's conclusion that the Crown should have devoted sufficient resources and acted with reasonable diligence to figure out if it had a reasonable prospect of conviction before permitting a preliminary inquiry date to be set. This would have necessarily involved, among other things, getting an expert opinion (in some form) on the cocaine and the MDMA, prior to the setting of the preliminary inquiry date.

[56] The cases are clear that the defence cannot wait for every piece of disclosure prior to the setting of the trial date. Indeed, in some cases it has been held that insisting upon an expert's report prior to the setting of a trial date may be unreasonable (see R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (Ont. C.A.) at para. 47). This proposition must also be true with respect to the setting of a preliminary inquiry date.

[57] Accordingly, this Court is not concluding that the Crown needs to have expert opinions in place in every case at the time of a JPT. However, in this case, where the information in its own files or available to it was that the largest quantity of what it thought were the three schedule I drugs, the 30.75 grams of methamphetamine, was not methamphetamine at all; it was incumbent on the Crown to tell the defence of this important fact (and to drop the methamphetamine charges) and for the Crown to figure out if it had a reasonable prospect of conviction on the 7.42 grams of cocaine and the 3.33 grams of MDMA and to do so by the time of the judicial pretrial at the end of June 2014 (seven and a half months into the prosecution). The only reasonable inference on this record is that if that had been done there never would have been a preliminary inquiry date set. In my view, if the Crown had acted with reasonable diligence, what happened on April 14, 2015 when the Crown amended the charges to drop the methamphetamine charges and to reduce the cocaine and MDMA charges to simple possession (and to proceed summarily) would have and should have happened before the judicial pretrial if the Crown had devoted proper resources to permit it to act diligently with respect to this case.

[58] The Crown argues that the defence did not ask for the early delivery of the expert's report. This argument might have had some force if the Crown had complied with its obligations and disclosed the Certificates in January/February 2014. The Crown, having failed to properly know the contents of its own file and having failed to respond to defence counsel's demand for the Certificates, can hardly complain that the defence should have asked for the early delivery of an expert report. It was the Crown's obligation to prepare its own case with reasonable diligence and to make disclosure in a timely way. The defence has no such obligation. It would have been better if the defence had asked for an early delivery of the expert report but I fail to see how that would address the Crown's obligation to be diligent and the Crown's obligation to satisfy itself on an ongoing basis that it had a reasonable prospect of conviction with respect to these very serious charges.

[59] One way or another, the April 14 and 15, 2015 dates set as a preliminary inquiry on June 27, 2014 should have been trial dates in the Ontario Court of Justice. I recognize that this would have required the exercise of discretion by the Crown to amend the charges and to proceed summarily on the simple possession charges. It would also have required the consent of the defence. However, we know that this is precisely what happened in April 2015 once everyone had the same information.

[60] I recognize that three days were needed for trial but I note that the Court had availability as well on March 30, 2015 so that three days of trial time were most certainly available in the immediate timeframe of the dates that were set for the preliminary inquiry. I agree with the Crown that given the number of witnesses, the stated intention of at least one of the defence counsel to challenge the warrant, and the need to clear calendars for Crown counsel and the three defence counsel, that 60 days for trial preparation was required and should be treated as neutral time. Therefore, 2 months should be deducted from the 9.5 months between June 27, 2014 and April 14 and 15, 2015 with the result being that 7.5 months should be treated as institutional delay.

[61] For the reasons outlined above, in my view, if the Crown had properly complied with its disclosure obligations and acted diligently with this prosecution as it was obligated to do, a trial should have taken place in the Ontario Court of Justice by mid-April 2015. In my view, the time between April 14, 2015 and September 2, 2015 (approximately 4.5 months) should be treated as Crown delay because it was brought about by the Crown's failure to devote sufficient resources to this case and to diligently prepare its case prior to the judicial pretrial of June 27, 2014.

Total Institutional/Crown/Defence Delay

[62] I have found that there were 2 months of Crown delay associated with the Toronto/Brampton issue and 4.5 months of Crown delay associated with its failure to diligently prepare its case. I have also found a further 7.5 months of institutional delay. Therefore, I have concluded that the total institutional delay and Crown delay is approximately 14 months.

(iv) Prejudice

[63] As indicated by the Supreme Court of Canada in R. v. Morin, deviations of several months from the guidelines in either direction can be justified by the presence or absence of prejudice. Prejudice may take the form of restrictions on liberty, undermining the accused's ability to get a fair trial or interference with the security interests of the person.

[64] The burden is on the accused before the Court to establish prejudice on a balance of probabilities. Prejudice can be actual or inferred. As indicated above, prejudice will generally not be inferred except where the delay is "substantially longer than can be justified on any acceptable basis".

[65] In this case, the defence does not take the position that the delay has implications for the fair trial interests of the three accused. The principal prejudice which the accused persons allege in this case relates to their security of the person and restrictions on their liberty.

[66] Each of Ms. Curow, Mr. Brooks and Mr. Ancheril swore an affidavit and gave oral testimony on the s. 11(b) application and were subject to cross-examination. I will examine each of their respective claims of prejudice.

[67] Before turning to a consideration of their individual claims to prejudice, I note that each of them testified to stress and anxiety associated with the delay in the hearing of the charges. There is no doubt that some of that stress and anxiety relates to the charges themselves rather than the delay. However, this case is different than many others. From mid-November, 2013 to mid-April 2015 (17 months), each of the accused was facing four drug trafficking charges and if the Crown had exercised reasonable diligence, the Crown would have concluded that three of those charges (all of which were straight indictable) were without merit and that conclusion would have been reached much earlier than it was in this case. It is clear to me that each of the accused has suffered real prejudice in the nature of stress and anxiety by virtue of facing charges for an extended period of time which were not meritorious. My view is this prejudice is actual prejudice as demonstrated by their testimony but I also consider that it is appropriate to infer prejudice in this case on this issue as the delay is "substantially longer than can be justified on any acceptable basis"

[68] I will now consider further individual claims of prejudice.

Ms. Curow

[69] In addition to the stress and anxiety prejudice associated with the delay in the hearing of the charges, Ms. Curow testified to a number of alleged areas of prejudice which she claimed were associated with the delay as follows: (i) unwarranted stops or detentions by the police to check compliance with her bail conditions; (ii) lost business due to her curfew and her inability to travel to the United States restrictions; (iii) strain and anxiety associated with restrictions on her ability to interact with her boyfriend, the co-accused Mr. Brooks; and (i) increased legal fees.

[70] As concerns stops by the police to check compliance with her bail conditions, Ms. Curow testified to numerous interactions with the police in which she was stopped and held while the police checked her compliance with her bail conditions. On one occasion she testified that she was held for over seven hours at the police station without charge. She thought this had taken place four months prior to the s. 11(b) application but she was very uncertain of the timing. In her affidavit she indicated that she was held for an extended period of time because the records of her bail variations were not up to date. She was not challenged in any material respect on the accuracy of what had occurred on this occasion. I note that Ms. Curow has been facing additional charges since June 30, 2015 but the details of those charges were not before the Court on the s. 11(b) application. I consider that Ms. Curow has suffered some prejudice associated with the checking of her bail conditions, particularly as concerns the seven-hour holding that the police station. However, this seems to be more of an issue that is related to the charges themselves as opposed to the delay in the hearing of the charges. I am also not satisfied that this problem was unrelated to the June 30, 2015 charges as Ms. Curow was uncertain of the timing of these events.

[71] With respect to restrictions associated with the bail conditions themselves, Ms. Curow testified that she works in the adult entertainment industry. She initially was not permitted to work past midnight but that was amended in April 2014 so that she could work past midnight. She also testified to difficulties working in Canada and the United States.

[72] As concerns her claim to prejudice associated with her work in Canada, her bail restrictions were revised to permit her to work in Canada when she wished to and accordingly prejudice on that claim is not established.

[73] I accept that Ms. Curow has lost some income due to lost business in the United States. She testified that she attempted to cross the border on one occasion and she was not permitted entry into United States. She could not recall when that occurred. In her affidavit she said she had to give up business in the last two weeks for an event in the United States. However, I note that she had other charges laid on June 30, 2015 and it may be that those charges have contributed to or are the reason why she could not attend at the more recent US event. In my view, it is not possible to say clearly on this record that the delay in hearing these charges has caused her losses with respect business in the United States.

[74] Until April 2015 when the preliminary inquiry collapsed and the charges were substantially changed, neither Ms. Curow nor Mr. Brooks could be in the presence of the other except in the direct presence of sureties. This was agreed to, on consent, at the time of the bail hearing on November 11, 2013. She has been in a relationship with Mr. Brooks throughout the entire time that these charges have been outstanding. The Crown says she (or Mr. Brooks) could have sought to amend that condition but I do not see how that is realistic. Typically, bail conditions are amended when some new information is put before the Court or the circumstances have changed in some way. Until April 2015, when the charges were substantially changed and the preliminary inquiry collapsed, there was nothing new that Ms. Curow or Mr. Brooks could have put before the Court to suggest a variation in the condition which had been imposed at the outset of the charges. I accept that both Ms. Curow and Mr. Brooks have both suffered some prejudice by not being able to be in direct contact with one another except in the presence of one of their sureties. Some of this relates to the charges but some of it also relates to the delay in having the charges heard.

[75] Finally, Ms. Curow testified to increased legal fees associated with the delay. This is a recognized form of prejudice and I accept that it has occurred in this case. The precise amount of the increased legal fees is not known.

Mr. Brooks

[76] Apart from the stress and anxiety point mentioned above, Mr. Brooks alleges prejudice due to restrictions on his liberty related to his bail conditions (which affected, among other things, his ability to work) as well as what he says are unreasonable interactions with the police checking up on his bail conditions; undue restrictions on his interactions with Ms. Curow and increased legal fees.

[77] When Mr. Brooks was initially arrested in November 2013 he was given a 12 AM curfew. He testified that he was then charged with other offences in March 2014 which changed his curfew to 10 PM. He said these charges were dropped in June 2014 and that his curfew then returned to 12 AM.

[78] Mr. Brooks sought and obtained, on the Crown's consent, a variation to permit him to work overnight and that occurred in September 2014. The curfew was eliminated entirely on April 14, 2015 after the collapse of the preliminary inquiry and the changes in the charges. As concerns his allegations of prejudice related to work, I do not accept that the bail conditions unduly restricted his liberty in this regard. When he wanted a change, he sought it and it was granted.

[79] He was then charged in connection with an incident in front of his house on December 21, 2014 which also involved charges being laid against his mother. These charges are still before the Court and it is not possible for me to make any finding on this record with respect to that incident that might impact on the s. 11(b) analysis.

[80] Mr. Brooks did testify to an incident in Edmonton. He was unclear on the precise time of it but indicated that it would have to be after June 2014. He said that he was arrested at 10:20 PM and that the police thought that his curfew was 10 PM. He said his curfew was actually 12 AM at this time. He testified to being charged with the breach of his bail and having to pay $3000 to get his car back. He said all of the charges were dropped. There was no written record of these charges put before the Court on the s. 11(b) application but he was not challenged as to the facts of this incident and I accept what he has said about this incident. It seems to the Court that there is some prejudice suffered by him but it is difficult to say that it relates to the delay in these charges. They appear to relate more to the charges themselves and a mix-up between the curfew on this charge and the curfew on the other charges in March 2014.

[81] I do accept that Mr. Brooks, like Ms. Curow, has suffered prejudice associated with the delay by not being able to communicate with Ms. Curow except in the direct presence of sureties. I also accept that he has incurred increased legal fees by reason of the delay in the charges, and that this constitutes a form of prejudice related to the delay

Mr. Ancheril

[82] Mr. Ancheril claims prejudice with respect to restrictions on his liberty associated with his bail conditions which have affected his employment and his life in general. He also claimed that there have been significant financial consequences to him the longer this case goes on, including as concerns legal fees. He also claims that the delay has affected his ability to become a registered car dealer.

[83] I do not accept that he has suffered prejudice by the delay associated with the charges as concerns his work. He was working 9 a.m. to 5 p.m. before the charges and he could have continued to do that after the charges but did not do so. He did seek a bail variation in the summer of 2014 to permit more flexibility with respect to his work and that was granted.

[84] Mr. Ancheril was charged with other offences in September 2014 and then was subject to a global bail which essentially put him on house arrest except when with his surety. While being under house arrest is more onerous than his prior bail with respect to the charges before the Court on this application, the house arrest restrictions cannot be blamed on the delay in the hearing of these charges. It may well be that he would still be on house arrest if he was simply facing the September 2014 charges.

[85] As concerns his ability to become a registered car dealer, Mr. Ancheril has not sought to become a registered dealer. It is quite possible that he would face problems but it is unclear if those problems are specifically attached to the delay in the hearing of this case. Mr. Ancheril has a criminal record and it is quite possible, indeed likely, that his conviction would be more of a problem for him than his charges. In any event, on this record I cannot find a specific prejudice on this issue.

[86] I do accept that he has suffered prejudice by way of increased legal fees associated with the delay.

Summary on Prejudice

[87] To summarize, I have found that each of the accused has suffered real prejudice in the nature of stress and anxiety by virtue of facing charges for an extended period of time which were not meritorious. This is specifically associated with the delay in having the charges heard. My view is this prejudice is actual prejudice as demonstrated by the testimony but I also consider that it is appropriate to infer prejudice in this case on this issue as the delay is "substantially longer than can be justified on any acceptable basis". In my view, the prejudice associated with the facing of the unmeritorious charges over an extended period of time is the most significant prejudice in this case.

[88] I have also found that each of the accused has suffered prejudice in the form of increased legal fees and that specifically relates to the delay.

[89] As concerns Ms. Curow and Mr. Brooks, I have found that they have both suffered prejudice by not being able to communicate with one another directly except in the direct presence of sureties. They have been in a personal relationship throughout and I accept that this restriction has put a significant strain on their relationship. While they agreed to this restriction at the time of the original bail conditions being set, there was no reasonable basis to seek a variation to this restriction in my view until the collapse of the charges in April 2015 when a variation was sought and obtained.

Balancing

[90] As indicated above, the Court must undertake a balancing analysis wherein it considers whether the delay is unreasonable, having regard to the interests of the accused, including any actual or inferred prejudice suffered and society's interest in having the matter tried on the merits. Before staying the charges, the Court must be satisfied that the interests of the accused and society in a prompt trial outweigh the interests of society in bringing the accused to a trial on the merits.

[91] I have determined that a stay should issue in this case as I consider that each of the three accused's s. 11(b) rights to be tried within a reasonable period of time has been violated. In arriving at this conclusion, I have considered and balanced each of the following factors:

(i) As it currently stands, this case involves alleged possession for the purpose of trafficking marijuana and simple possession of two schedule I narcotics. Drug trafficking charges are extremely serious and cannot be tolerated. The simple possession charges are not as serious as the trafficking charges. Having said that, simple possession of schedule I narcotics is not to be encouraged or tolerated. Overall, society has a strong interest in having cases such as these tried on the merits, particularly the drug trafficking charges;

(ii) This is a case of moderate complexity with a total of approximately 12 witnesses on the Crown side and the case is anticipated to last three days. A Charter application challenging the warrant is anticipated;

(iii) The case as presently constituted is significantly less serious and less complex than it once was. It started out with each of the three accused facing four charges of possession for the purpose of trafficking with respect to four different prohibited substances;

(iv) On the question of prejudice, I have found that each accused has suffered actual prejudice as a result of the anxiety and stress of having been charged with three offences of possession for the purpose of trafficking (the MDMA, the cocaine and the methamphetamine) which were of little or no merit and it took the Crown just over 17 months to realize that fact. Had the Crown acted diligently it would have reached this same conclusion before the judicial pretrial was held at the end of June 2014. In addition, as concerns each of the accused, they have each suffered actual prejudice through increased legal fees. As concerns Ms. Curow and Mr. Brooks, I have found prejudice associated with the strain on their relationship by virtue of their bail conditions and that this has been exacerbated by the delay in the hearing of the charges;

(v) The true impact of prejudice on the accused in each of these areas can only be fully understood in the context of the length of the delay itself. In this case, there has been 7.5 months of institutional delay and 6.5 months of Crown delay. As indicated above, the guidelines from Morin provide for 8 to 10 months of institutional delay and some authorities suggest that this period should be shorter in Peel. It is recognized that the guidelines are precisely that; guidelines and not limitation periods. Considerable flexibility must be permitted when "enforcing" the guidelines. Having said that, 14 months of institutional delay/Crown delay is well outside the guidelines;

(vi) While I have found approximately 3 weeks of defence delay associated with the setting of the second judicial pretrial, overall, the defence did not seek to delay this matter. The defence wanted to set a preliminary inquiry date on April 8, 2014, some five months into the prosecution but they were initially thwarted in that request because the case had been started in Toronto and the Court refused to permit them to set a preliminary inquiry to be held in Toronto. The defence cooperated in having the case transferred to Brampton and as soon as the judicial pretrial was held at the end of June they proceeded to set preliminary inquiry dates which was a reasonable thing to do considering that the accused were each facing three straight indictable possession for the purpose of trafficking charges at that point in time; and

(vii) The Crown delay of 6.5 months is of particular concern and must be given added weight in the s. 11(b) analysis. The Crown has tremendous power to affect people's lives through the laying of charges. With that power comes the responsibility to ensure that people facing charges have their prosecutions dealt with fairly and diligently. In this case the Crown laid very serious possession for the purpose of drug trafficking charges, and then failed to diligently proceed with the prosecution. The record indicates that the Crown was simply not paying sufficient attention to the very serious charges that had been laid. When it did, the Crown acted appropriately in dropping the methamphetamine charge and in reducing the possession for the purpose of trafficking with respect to cocaine and MDMA to simple possession. However, had it acted with reasonable diligence, it would have reached these conclusions much earlier.

Conclusion

[92] While society has an interest in trying cases on the merits, society also has an interest in ensuring that persons who are brought before the Court on serious charges are tried as soon as is reasonably possible and that the Crown proceeds diligently with serious charges once laid. That did not happen here.

[93] For the foregoing reasons, the application is allowed and a stay of proceedings is entered.

Released: September 16, 2015

Justice Paul F. Monahan