COURT FILE NO.: CRIM 3431/09

DATE: 20120326

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Deborah Dieckmann v. Thomas Davis and George Salmon

BEFORE: The Honourable Mr. Justice R.D. Reilly

COUNSEL: Xenia Proestos, Crown Counsel for the Public Prosecution Service of Canada

Devin Bains and Pamela Zbarsky, for the Applicant/Defendant,

Deborah Dieckmann

HEARD: January 5, 6 and February 3, 2012

RULING ON AN APPLICATION

[1] By this application, Deborah Dieckmann seeks relief pursuant to s. 11(b) of the Charter of Rights and Freedoms. She pleads that the time from which she was first charged to the anticipated end of her trial is unreasonable and therefore the charges should be stayed. In fact, that period of time will be approximately 85 months. Therefore a s.11(b) analysis is clearly triggered. This is an unusual case. Ms. Dieckman is charged, together with two co-accused, Thomas Davis and George Salmon, with seven counts alleging that she defrauded Her Majesty in Right of Canada of several million dollars in tax revenues. As noted, the case has an unusual history. Therefore an analysis of its chronology from the time charges were laid is appropriate.

The Chronology of the Charges

[2] On March 1, 2006, authorities executed 10 search warrants, seizing some 100 banker’s boxes of documents, together with electronic records. On the 29th of August 2006, police in Metropolitan Toronto laid charges against Ms. Dieckmann, Mr. Davis and Carolyn Hartman. The first appearance for the three accused in Toronto was on the 6th of November 2006. On the 8th of November 2006, the prosecution provided some initial disclosure. Some further disclosure was provided on the second court appearance on the 11th of December 2006. On that day the case was remanded from the College Park Court House to the Finch Avenue Court House.

[3] The third court appearance was on the 15th of January 2007 and the fourth appearance occurred on the 20th of February 2007. On that date, further “voluminous” disclosure was provided.

[4] On the 27th of February 2007, a summons was issued to the three accused alleging seven counts of fraud. This summons required them to appear in the Ontario Court of Justice in Brampton on the 4th of May 2007. By this date, it had been decided that the prosecution would be conducted by the Public Prosecution Service of Canada as opposed to the Provincial Crown Attorney. There was a further appearance in the Finch Avenue Court House on the original information on the 24th of April 2007. Then, on the 29th of May 2007, there was a further appearance in the Finch Avenue Court House at which time the original charges were stayed.

[5] The first appearance in the Ontario Court of Justice in Brampton occurred on the 4th of May 2007. Three other accused were included in the charges by this time, Roger Oke, Russell Conroy and George Salmon. The second appearance in the Ontario Court of Justice in Brampton occurred on the 22nd of June 2007. At this time, further disclosure was provided. It constituted 21 CDs, which apparently contained in excess of one million pages of documents.

[6] A third appearance in Brampton court occurred on the 10th of August 2007 and a fourth appearance occurred on the 21st of September 2007. On the 28th of September 2007, there was a judicial pre-trial before Justice Duncan, at which time counsel predicted a preliminary inquiry that could last five months. On the 1st of November 2007, there was a further judicial pre-trial before Justice Duncan at which time additional disclosure was provided. Further pre-trials were held before Justice Duncan on the 6th of December 2007 and the 23rd of January 2008. Efforts were made to set a date for the preliminary inquiry. One of the problems was that Ms. Dieckmann’s counsel, Devin Bains, had a very busy schedule. As it happened, at the next Brampton appearance on the 13th of February 2008, the preliminary inquiry was set for two periods, the 5th of January to the 9th of February 2009 and the 6th of April to the 11th of May 2009.

[7] Defence counsel were having difficulty accessing the voluminous electronic disclosure which had been provided. On the 12th of February 2008, the prosecution sent a letter offering training on “supertext CD view”. Beginning on the 27th of February 2008, technicians provided by the prosecution provided training to defence counsel on the supertext CD view software.

[8] On the 18th of April 2008, there was a further judicial pre-trial before Justice Duncan and the dates for the preliminary inquiry were confirmed. Further judicial pre-trials occurred on the 27th of June 2008, the 26th of August 2008, the 16th of September 2008, the 1st of October 2008, the 27th of October 2008, the 12th of November 2008, the 2nd of December 2008, the 9th of December 2008 and the 19th of December 2008. Some further disclosure was provided at the judicial pre-trial on the 12th of November 2008 and on the 2nd of December 2008 a witness list was provided to the defence.

[9] On the 5th of January 2009, the preliminary inquiry began, ultimately concluding on the 14th of May 2009. All accused were committed to stand trial in Superior Court and were to appear in the assignment court on the 19th of June 2009.

[10] It may be noted that one of the reasons for the numerous judicial pre-trials was not simply the complexity of the case, but the fact that two of Ms. Dieckmann’s co-accused were in effect unrepresented. Justice Duncan appears to have done his best to ensure they had counsel. I need not detail their efforts at this time. However they involved problems with Legal Aid and a Rowbotham application.

[11] At the first appearance in Superior Court on June 19th, 2009, Thomas Davis still did not have counsel. This was to be a continuing problem. It may be noted that one of the accused, Russell Conroy, pleaded guilty on the 3rd of June 2009 and was in effect removed from the indictment. The first judicial pre-trial before Justice Durno occurred on the 30th of June 2009. There was a further judicial pre-trial before Justice Durno on the 9th of July 2009. On that date, Thomas Davis was released from custody. At a further judicial pre-trial on the 27th of August 2009, tentative trial dates were set, they being three months beginning the 13th of September 2010 for pre-trial motions and three months beginning the 14th of February 2011 for the trial before a jury.

[12] On the 4th of September 2009, Roger Oke entered a plea of guilty and was in effect removed from the indictment.

[13] The defence continued to complain about the difficulty in meaningfully accessing the voluminous electronic disclosure which had been provided. On the 8th of September 2009, the prosecution offered a superior form of software (as compared with supertext CD view). The program the prosecution had been using all along was “supertext research” software. On the 8th of September 2009, the prosecution offered to the defence this supertext research software. In a commendable effort to ensure the case proceeded expeditiously, Justice Durno held further judicial pre-trials on the 27th of October, the 13th of November, the 4th of December and the 18th of December 2009. On the 16th of December 2009, the supertext research software was installed on the defendant’s counsel’s computers. Justice Durno presided further judicial pre-trials on the 11th of January 2010, the 25th of January 2010 and the 29th of March 2010. On the 25th of January 2010, Mr. Bains expressed greater satisfaction with the disclosure that had been provided and his access to that disclosure. The defence was not only provided with supertext research software, but received training in its use from technicians provided by the Federal government. At the judicial pre-trial on the 29th of March 2010, the case was remanded to the assignment court of the 28th of May 2010. The trial dates of 13 September 2010 and 14 February 2011 (three months each) were confirmed.

[14] After the appearance in assignment court on the 28th of May 2010, Justice Durno held further judicial pre-trials on the 4th of June 2010, the 15th of June 2010, the 17th of June 2010, the 19th of June 2010, the 9th of November 2010 and the 10th of November 2010. Some of these judicial pre-trials were by telephone. At the judicial pre-trial on the 19th of June 2010, the date of 13 September 2010 (for the commencement of pre-trial motions) was varied to the 15th of November 2010. On that date, 15 November 2010, pre-trial motions did indeed begin before Justice David Corbett. Following pre-trial motions, jury selection began on the 24th of March 2011 and on the 29th of March 2011, the first evidence was called.

[15] On the 12th of April 2011, Justice Corbett met with counsel in his chambers (with a reporter present). He advised counsel that he had ongoing personal issues with the Canada Customs and Revenue Agency. He had believed that those issues were resolved, but had now been advised that the issues were still very much alive. He further advised counsel that as the result of these issues, he felt there would be a reasonable apprehension of bias on his part, either for or against the CCRA. Therefore, he was disposed to recuse himself as trial judge. After considering the matter, all counsel agreed that Justice Corbett should recuse himself.

[16] Given this surprising turn of events, a “mid-trial” conference was held before Justice Durno on the 18th of April 2011. The Crown took the position that the trial should continue before another judge pursuant to s.669.2 of the Criminal Code. Defence counsel disagreed. Justice Durno arranged for another judge to make that determination. On the 26th of April, the issue was argued before Mr. Justice Sproat, who ruled on the 28th of April 2011 that the trial could not continue and that a mistrial must be declared. On that same day the matter was put back before Mr. Justice Corbett, who formally recused himself and declared a mistrial.

[17] On the 2nd of May 2011, Justice Durno presided another judicial pre-trial, which continued on May 3rd, 2011. Defence counsel took the position that they needed “time to regroup”. Justice Durno offered September 2011 as a date to begin the new trial. Mr. Bains stated that his schedule was full, he was unavailable in September of 2011 and in fact, was not available until mid-July or August of 2012. Justice Durno set the 19th of March 2012 as a target date for the new trial. At a further judicial pre-trial on the 2nd of August 2011, Justice Durno confirmed the 19th of March 2012 as the date for the new trial “with or without counsel for Davis”. He held a further judicial pre-trial by telephone on the 18th of August 2011.

[18] At a further judicial pre-trial on the 13th of September 2011, Mr. Davis was represented by counsel. Counsel for Carolyn Hartman advised that she only had days to live as a result of her cancer. Therefore, the charges against her were stayed. Justice Durno held a further judicial pre-trial by telephone on the 20th of October 2011.

[19] For the first time, Mr. Bains filed an 11(b) application on behalf of Ms. Dieckmann. In preparation for this application, he also brought an application seeking to have Justice Corbett and the CCRA disclose all of Justice Corbett’s income tax records. Subpoenes duces tecum were served upon Justice Corbett and a senior official of the CCRA. This application was argued before me on the 28th of October and the 9th of November 2011. I issued my ruling orally on the 9th of November. I ruled that the application was without merit, chiefly for three reasons, lack of relevance, judicial immunity and that provision in the Income Tax Act which prohibits the CCRA from revealing any taxpayer information, the only exception being the income tax records of an accused in an income tax or criminal prosecution.

[20] The issue of a further adjournment and the setting of a date for the new trial was further argued on November 21st, 2011, November 28th, 2011, December 9th, 2011 and December 16th, 2011. Mr. Bains stated that because of his schedule he would not be available for the new trial (predicted to last six months) in 2012. Indeed, he would not be available until the Spring of 2013. Therefore, on December 16, 2011, a date for the new trial was set to begin on March 18, 2013.

[21] The above chronology may be viewed in somewhat greater detail in the facta filed with the court on this application and the lengthy affidavit by Winston Moh, found in the application record. Appreciating that I am required to consider the passage of time globally from the laying of charges to the anticipated conclusion of trial, as opposed to considering individual periods of time in isolation, I would simply note that the passage of time from the laying of charges to the beginning of the preliminary inquiry was approximately 28 months. The time from committal for trial to the beginning of the first trial was approximately 18 months. Some five months later, the mistrial was declared. The time from the mistrial to the date of commencement of the new trial is approximately 22 and 1/2 months. Clearly the passage of time from the laying of charges to each of the various steps in this prosecution triggers a serious consideration of the issue set out in s.11(b) of the Charter, Ms. Dieckmann’s right to be tried within a reasonable time.

The Law and Analysis

[22] The leading case dealing with s.11(b) is still R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.J. No. 25. In that case the Supreme Court clarified that the primary purpose of s.11(b) is the protection of the individual rights of an accused person:

1. the right to security of the person;

2. the right to liberty; and

3. the right to a fair trial.

The right to security of the person is protected 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 the evidence is available and fresh.

[23] The court went on to say that a secondary interest of society as a whole has also been recognized by the court. This interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that citizens who are accused of crimes are treated humanely and fairly. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. There is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.

[24] The court made it clear that in determining whether the right guaranteed by s.11(b) has been denied is not by the application of a mathematical formula, but rather by a judicial determination balancing the interests which the section is designed to protect against the factors which have led to delay. The factors to be considered are:

1. the length of the delay;

2. the waiver of any time;

3. the reasons for the delay, including inherent time requirements of the case, actions of the accused, actions of the Crown, limits on institution resources and any other reasons for delay; and

4. prejudice to the accused.

[25] It must be remembered that Morin was a relatively simple impaired driving case. The Supreme Court determined that a period of 14 and 1/2 months from the date charges were laid to Ms. Morin’s trial was not unreasonable.

[26] More recently, the Ontario Court of Appeal, in a series of cases, has confirmed and clarified the principles enunciated in Regina v. Morin. In R. v. Austin, [2009] O.J. No. 1669, the accused were charged with a very serious sexual assault. The accused were charged in February of 2006. The trial judge stayed the charges in March of 2008, as a result of what he found was unreasonable delay. The Court of Appeal disagreed. Justice O’Connor, for a unanimous court stated at para. 5:

On the interpretation of the facts most favourable to the respondents, approximately nine of the 17 1/2 month delay was caused by late Crown disclosure. That delay should not have occurred. Nonetheless, given the strong societal interests in having these serious charges tried, the absence of any trial fairness prejudice to the respondents and the fact that the delay, including that caused by late disclosure, does not exceed the Morin guidelines, I am of the view that the stay should be set aside and a new trial ordered.

[27] Justice O’Connor went on to state at paras. 42 and 43:

42 The purposes of s. 11(b) were set out by Laskin J.A. in R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), at paras. 8-9:

Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused’s right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused’s right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused’s right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.

Section 11(b) also seeks to protect two societal rights. First, it protects the public’s interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public’s interest in having those accused of crime dealt with fairly.

43 In determining whether s. 11(b) has been infringed, the court must balance the individual and societal factors with the length, causes and consequence of the delay.

[28] Justice O’Connor continued at paras. 46-48:

46 In Morin, the Supreme Court of Canada set out the analytical framework for assessing the reasons for delay. In so doing, the court set guidelines for what may constitute reasonable systemic or institutional delay. Sopinka J., for the majority, suggested a period of between 8 to 10 months as a guide for provincial courts and a range of 6 to 8 months after committal for trial: Morin at p. 789. Taken together, the suggested range for a case in which there is a preliminary hearing is between 14 and 18 months.

47 It is important to note that the guideline periods do not start to run until after inherent time requirements of a case have elapsed. In Morin, Sopinka J. described this as the point in time “when the parties are ready for trial but the system cannot accommodate them”: Morin at p. 795. The inherent time period includes what may be called the “intake requirements” for a case. At p. 791, Sopinka J. point out that

[s]ome delay is inevitable. Courts are not in session day and night. Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare.

48 When there is a preliminary hearing, there will be further delays in a “two-stage” trial process which will involve “additional inherent delays such as further pre-trial meetings and added court dates” for the second stage in the higher court: Morin at p. 793.

[29] Justice O’Connor then went on to quote Justice Doherty in R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), aff’d 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700 at p. 345 Justice Doherty stated:

I can see nothing in the language of s. 11(b) which suggests any right to have one’s trial proceed according to a constitutionally mandated timetable. Section 11(b) creates one right – the right to be tried within a reasonable time. As long as the entire time period in issue cannot be said to be unreasonable when tested against the principles pronounced in R. v. Morin ..., there is no violation of s. 11(b).

[30] In considering the issue of late Crown disclosure, Justice O’Connor stated at paras. 63-66:

63 The remaining 9 months – from the first scheduled trial date during the week of June 11, 2007 to the trial date of March 27, 2008 – should be attributed to the Crown’s late disclosure of the CFS report. There is no explanation for the Crown’s delay in disclosure other than what the Crown Attorney said in his submissions – it was due to negligence. By that, I take the Crown to have meant it was inadvertent. While the delay cannot be explained or justified, there is no suggestion that it was intentional or that the police or the Crown had any ulterior motive in not ensuring that there would be timely disclosure.

64 The question arises whether it makes a difference when applying the Morin guidelines that a portion of the delay was caused by the Crown’s late disclosure rather than by institutional or systemic factors. The trial judge’s conclusion that the delay was unreasonable appears to have been driven in large part by the fact that the delay was caused by the Crown’s actions. He noted that if the task were to “simply balance the societal interest in the trial against prejudice to the defendants”, then the “application should be dismissed”. However, there were other “issues at play” that related to the “conduct of the prosecution” which he earlier described as the Crown’s “casual approach’ to disclosure.

65 It is important to note that the purpose of s. 11(b) is not to assign blame to either party but to determine whether the period of delay is unreasonable. In discussing delay caused by the conduct of the Crown, Sopinka J. in Morin stated at p. 794:

As with the conduct of the accused this factor does not serve to assign blame. The 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, change of venue motions, etc .... [S]uch delays cannot be relied upon the Crown to explain away delay that is otherwise unreasonable.

66 In R. v. Durette (1992), 1992 CanLII 2779 (ON CA), 9 O.R. (3d) 557 (C.A.), Doherty J.A., dissenting, but not on this point, reviewed a number of authorities and expressed the same idea at p. 594:

Section 11(b) requires a measurement of the reasonableness of the time required to complete the prosecution of an accused. It is not concerned with the propriety of the conduct of the Crown or the accused. In R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659 ..., at pp. 1673-74 ..., L’Heureux-Dubé J. for the majority said:

The Crown is free to use its prosecutorial discretion as it seems fit, provided that it does not conduct the prosecution in an abusive manner. We are not here concerned with fault but with the reasonableness of the over-all delays in bringing an accused to justice.

These words echo the comments of Lamer J. in R. V. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 ..., at p. 933-34 ... where he said, speaking for three members of a seven-person court (the majority not addressing the point):

The purpose of s. 11(b), however, is not to penalize or sanction misconduct by the authorities. The section is concerned not with abuse of process but with abusive process .... [W]hether the delay is the result of malice, negligence or inadvertence is of little import ....

[31] Notwithstanding the significant delay in Austin (some 25 months) and notwithstanding the negligence of the Crown which resulted in delayed disclosure, the Court of Appeal concluded that in balancing all the factors, the trial judge should not have stayed the charges as a result of the violation of s. 11 (b). Justice O’Connor concluded at paras. 72-73:\

72 In my view, the societal interest in this case warrants a trial on the merits. The charges are extremely serious. As Sopinka J. said in Morin at p. 787, “[a]s the seriousness of the offence increases so does the societal demand that the accused be brought to trial.”

73 Given that the overall delay comes within the Morin guidelines and the respondents’ fair trial rights will not be affected, I am of the view that the societal interest in having a trial outweighs the factors that would favour a stay.

[32] In R. v. Nadarajah, Mr. Nadarajah was one of four persons originally charged with armed robbery and conspiracy to commit robbery. His trial took place some 33 months after his arrest. The trial judge dismissed Mr. Nadarajah’s application to stay proceedings against him for delay. The Court of Appeal agreed with that decision by the trial judge. Justice Goudge for a unanimous court stated at paras. 13-15:

13 The appellant Nadarajah was arrested on February 21, 2002. His trial in the Superior Court of Justice was scheduled to begin on November 8, 2004. He says that in the circumstances of this case, this delay of 33.3 months constitutes a violation of the right guaranteed to him by s. 11(b) of the Charter of Rights and Freedoms to be tried within a reasonable time. He argues that the application judge erred in dismissing his application to stay the proceedings on this basis.

14 The approach required to address an issue of this kind is well known. As this court said in R. Batte (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498, at para. 55, it is not a mathematical exercise. Rather, the following factors must be considered and balanced in determining whether the appellant was tried within a reasonable time:

(1) the length of the delay;

(2) any waiver of time periods;

(3) the reasons for the delay including

(a) the inherent time requirements of the case;

(b) the conduct of the accused or delays attributable to the accused;

(c) the conduct of the Crown or delays attributable to the Crown;

(d) delays due to limits on institutional resources;

(e) any other reasons for delay

(4) prejudice to the accused.

15 Following his preliminary hearing, the appellant Nadarajah was committed for trial on January 12, 2004. Thus, of the 33.3 months of delay, approximately 23.3 months was in the Ontario Court of Justice and 10 months was in the Superior Court of Justice. None of the delay was waived by the appellant.

[33] Mr. Nadarajah pleaded that much of the early delay should not be considered part of the normal intake period, but was in fact due to delayed disclosure by the Crown. He argued that the essential evidence was all gathered before his arrest, and could have and should have been disclosed promptly, upon request. Justice Goudge stated at para. 19:

I do not agree. The Crown’s case had some complexity. It was based largely on circumstantial evidence, including fingerprint analysis, gunshot residue testing, DNA analysis and several hundred pages of cell phone records, as well as statements from eyewitnesses. While all this was in the possession of the police before the appellant’s arrest, organizing and analyzing the information has to be allowed for, particularly the reviewing of the telephone records to identify links that might exist. Moreover, there were four accused to whom disclosure had to be made. I agree with the application judge that in this case, the time from arrest to June 27, 2002 is not an unreasonable intake period.

[34] Those same considerations are even more applicable to the case at bar.

[35] In the case of R. v. Tran, 2012 ONCA 18 (Ont. C.A.), the Crown was appealing an order by the trial judge staying drug related charges based upon his finding that the accused’s right to trial within a reasonable period, pursuant to s.11(b) of the Charter was infringed. The accused’s trial in the Ontario Court of Justice began approximately 15 months after their arrest. The trial judge initially declined to stay the charges based on delay, to the commencement of the trial. However, when the trial had to be adjourned for four additional months because it could not be completed within the originally scheduled time frame, the trial judge granted a stay. Madam Justice Simmons, for a unanimous court, concluded that the stay should not have been granted. In her thorough analysis of the circumstances of the case, including her consideration of late Crown disclosure and unavailable Crown witnesses, she concluded on behalf of the court that the delay was not unreasonable. In her reasons, she quoted from the Ontario Court of Appeal decision in R. v. Allen (1996), 100 C.C.C. (3d) 331 (Ont. C.A.). In that case, the court stated:

When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate: R. v. Hawkins (1991), 1991 CanLII 7148 (ON CA), 6 O.R. (3d) 724 at 728 (C.A.), aff’d, (1992), 1992 CanLII 42 (SCC), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip (1993), 1993 CanLII 14721 (ON CA), 80 C.C.C. (3d) 167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[36] Madam Justice Simmons concluded at paras. 63-64:

[63] The Morin guideline for delay in the Ontario Court of Justice is eight to ten months. However, the guideline is just that: a guideline, not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice: Morin, at p.807.

[64] In this case, the trial judge found more than modest prejudice to the respondents’ right to security of the person arising from their bail conditions. Even assuming that was a proper finding, the question of prejudice arising from the bail conditions was never raised until the judicial pre-trial. And the specific prejudice found by the trial judge was alleviated to a significant extent by the variations to the respondents’ bail conditions agreed to on September 16, 2010. I see no reason to reduce the Morin guideline in these circumstances. While not the most serious of drug offences, the allegations in this case include commercial trafficking in marijuana and a hydro bypass in a residential area. In all the circumstances, I conclude that the trial judge erred in finding the period of Crown/institutional delay in this case unreasonable.

[37] In the result, the Court of Appeal set aside the stay imposed by the trial judge and ordered a new trial. Madam Justice Simmons stated “it follows that every effort should be made to move this case along as quickly as reasonably possible.”

[38] I have carefully considered all the jurisprudence cited by counsel. In some cases, relief was granted pursuant to s. 11(b) of the Charter. In some cases, it was not. Many of the cases can be distinguished from their facts on the case at bar. I do not intend to analyze each of the cases, but would simply list them. Among the many cases in which relief was granted, pursuant to s. 11(b) of the Charter are: R. v. Giorgio, [2004] O.J. No. 3807 (Ont. S.C.J.) (a delay of 31 months), R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.) (a delay of 30 months), R. v. Jaques, 1998 CanLII 27965 (MB KB), [1998] M.J. No. 214 (Man. Q.B.) affirmed [1998] M.J. No. 462 (Man. C.A.) (a delay of 33 1/2 months), R. v. Jaramillo, [2002] O.J. No. 4435 (O.C.J.) (a delay of 11 months, trial not reached), R. v. Meier, [1998] O.J. No. 3489 (O.C.J.), appeal dismissed, [2000] O.J. No. 6032 (On. S.C.J.) (a delay of 12 months, significant personal prejudice to accused), R. v. Oliveira, [2009] O.J. No. 1331 (Ont. S.C.J.) (a delay of 18 months), R. v. Pusic, 1996 CanLII 8215 (ON SC), [1996] O.J. No. 3329 (Ont. Ct. Gen. Div.) (a delay of 37 1/2 months), R. v. Rahey, 1987 CanLII 52 (SCC), [1987] S.C.J. No. 23 (S.C.C.) (a delay of 26 months), R. v. Colin, [2007] O.J. No. 2482 (Ont. S.C.J.) (a delay of 43 months, actual prejudice to health), R. v. Connolly, [1996] O.J. No. 4470 (Ont. Ct. Gen. Div.) (a delay of 32 months, including 18 months in the General Division), R. v. Court, 1997 CanLII 12180 (ON SC), [1997] O.J. No. 3450 (Ont. Ct. Gen. Div.) (a delay of more than six years and abuse of conduct on the part of the Crown), R. v. Dillabough, [2000] O.J. No. 2338 (O.C.J.) (a delay of 27 1/2 months), R. v. East, [2000] O.J. No. 418 (Ont. S.C.J.) (a delay of 22 months to the end of the preliminary inquiry), R. v. George, [2005] O.J. No. 3241 (Ont. S.C.J.) (a delay of four years, charges were withdrawn and re-laid), R. v. Rinella, [2011] O.J. No. 550 (Ont. S.C.J.) (priority to a new trial date after a mistrial), R. v. Satkunananthan, 2001 CanLII 24061 (ON CA), [2001] O.J. No. 1019 (O.C.A.) (a delay of 44 months and interpreter problem), R. v. Sylvester, [2001] O.J. No. 5609 (Ont. S.C.J.) (a delay of four years), R. v. Tam, 2002 BCSC 583, [2002] B.C.J. No. 1216 (B.C.S.C.) (a delay of three years), R. v. Topol, [2007] O.J. No. 3094 (Ont. S.C.J.) affirmed 2008 ONCA 113, [2008] O.J. No. 535 (O.C.A.) (a delay of five years).

[39] There are a number of cases, however, many of them from the Ontario Court of Appeal in which significant delays were not found to be unreasonable. They include R. v. Schertzer et al, 2009 ONCA 742, [2009] O.J. No. 4425 (O.C.A.) (a delay of 56 months, the case involving complex disclosure), R. v. Allen, 1996 CanLII 4011 (ON CA), [1996] O.J. No. 3175 (O.C.A.), affirmed 1997 CanLII 331 (SCC), [1997] S.C.J. No. 91 (S.C.C.) (a delay approaching four years), R. v. Lahiry, R. v. Carreira, R. v. Davidson, R. v. Shelson, [2011] ONSC 6780 (Ont. S.C.J.) (delays of 13 months, 30 1/2 months, 18 months and 13 months, respectively in drinking and driving cases), R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 (S.C.C.) (a delay of 22 months prior to sentencing after a plea of guilty), R. v. Khan, 2011 ONCA 173, [2011] O.J. No. 937 (O.C.A.) (a delay of 41 months in a complex case involving allegations of a criminal organization), R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659 (S.C.C.) (a delay of five years involving an appeal from a conviction for second degree murder, a new trial and a subsequent mistrial), R. v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756 (Ont. C.A.) (a delay of 12 months), R. v. Meisner, 2004 CanLII 30221 (ON CA), [2004] O.J. No. 3812 (O.C.A.) (a delay of three months as a result of the trial judge’s recusal). Finally it will be remembered as noted above that in the seminal case of R. v. Morin, a delay of 14 1/2 months from charge to trial in a “simple” impaired driving case was found not to be unreasonable delay.

[40] What emerges clearly from these cases is that while the principles enunciated in R. v. Morin still have full application in considering whether a delay has been unreasonable, each case must be determined on its own facts. As noted above, the delay in this case clearly triggers the s. 11(b) analysis. The court must, however, carefully consider the reasons for delay, any waiver by Ms. Dieckmann of trial at an earlier point and the prejudice that follows any delay, both trial prejudice and personal prejudice that may have been or will be visited upon Ms. Dieckmann.

[41] Having considered all of these factors, I have concluded that the delay in this case, from the time the charges were first laid until the anticipated completion of the retrial is not unreasonable. This is an unusual case. In considering the reasons for delay, both prior to the preliminary inquiry and subsequent to committal for trial, I appreciate that the evidence is complex indeed. There were originally six co-accused. Two have pleaded guilty, one has passed away. Thus, there remain, Deborah Dieckmann, Thomas Davis and George Salmon. Prior to the preliminary inquiry, there were continuing problems involving unrepresented accused. Problems with counsel continued after the committal for trial. In the Ontario Court of Justice, Justice Duncan conducted more than a dozen judicial pre-trials in his effort to move the case forward. From the time the first charges were laid, the 29th of August 2006 until the first appearance in the Brampton court house on the 4th of May 2007 on the new charges, a decision was made to move the prosecution from the Provincial Crown Attorney to the Public Prosecution Service of Canada. Some of this delay might well be attributable to the Crown. It will be remembered that at the first court appearance in Brampton on the 4th of May 2007 there were three additional accused on the information, Messrs. Oke, Salmon and Conroy. From that first appearance in Brampton to the commencement of the preliminary inquiry on the 5th of January 2009, Mr. Bains’ principle complaint is the lack of what he would refer to as “adequate disclosure”. Disclosure was a continuing process. On the 22nd of June 2007, on the occasion of the second appearance in Brampton court, the defence was provided with 21 CDs. This electronic disclosure unquestionably provided problems for the defence. In a sense they had disclosure, but did not have real access to disclosure. Thus, as noted above, in February 2008, the software program “supertext CD view” was offered to the defence and training on the use of the software continued in February 2008, provided by a technical expert from the prosecution. In an attempt to move the case forward, Justice Duncan of the Ontario Court of Justice conducted more than a dozen judicial pre-trials. Further disclosure, including a witness list, was provided during these disclosures. The preliminary inquiry was predicted to last some five months. It began on the 5th of January 2009 and ended on the 14th of May 2009, resulting in a committal for trial of all accused.

[42] Mr. Bains’ principle complaint is that while disclosure was provided in the sense that the CDs provided to him contained all the documents that had been seized and the more than 100 banker’s boxes of documents from the 10 search warrants, he did not have meaningful access to these documents. The software program he had been provided, supertext CD view, did not have optical recognition ability and his preparation for the preliminary inquiry and ultimate trial was therefore being frustrated. He did not realize initially that the prosecution had a superior software program “supertext research” and did not so realize until after the preliminary inquiry. He therefore pleads that in effect all of the delay leading to the preliminary inquiry should be attributed to the Crown.

[43] I do not agree. We are living in a new technological age. I would say, without reservation, that when the prosecution provides disclosure in an electronic format, it must ensure that the defence has reasonable access to such disclosure. As time passes, new technology may provide better access to such disclosure and in that event, the prosecution is required to provide such software to the defence or at least to make the defence aware of such software. That apparently did not happen in this case. However, there was no evidence before me that the prosecution acted in bad faith or wilfully withheld from the defence the superior software it had been using to create and access disclosure material. My conclusion is confirmed by the fact that the prosecution did indeed provide to the defence the superior program, the “supertext research” software in September of 2009. The Crown provided as well two IT experts, Mr. Mercer and Mr. Zolis to assist the defence in using the software.

[44] Continuing with the reasons for delay and appreciating that the time must be looked at globally, I focus for the moment on the time between the laying of the initial charges (29 August 2006) and the commencement of the preliminary inquiry (the 5th of January 2009). This was a complex case from the beginning. The original Toronto charges were laid against Ms. Dieckmann, Ms. Hartman and Mr. Davis. The prosecution was undertaken by a Provincial Crown Attorney. On the 8th of November 2006, initial disclosure was provided by the prosecution constituting a banker’s box of documents. On the second appearance in Toronto, the 11th of December 2006, there was further disclosure. On the 20th of February 2007, further voluminous disclosure was provided. By the 27th of February 2007, it had been decided that the prosecution would be undertaken by the Public Prosecution Service of Canada. The accused appeared pursuant to a summons, for the first time in Brampton court on the 4th of May 2007. Added to the original three accused were Mr. Oke, Mr. Salmon and Mr. Conroy. The prosecution was involved in rendering the copious material which had been seized pursuant to the original 10 search warrants to an electronic format and on the second appearance in the Ontario Court of Justice in Brampton on June 22, 2007, 21 CDs were provided to the defence by way of disclosure. There were numerous judicial pre-trials conducted by Justice Duncan of the Ontario Court of Justice. Additional disclosure was provided by the prosecution at a judicial pre-trial on the 1st of November 2007. On the 12th of February 2008, the prosecution offered by letter, training on “supertext CD view” to assist the defence in accessing the disclosure. It is clear from the evidence proffered on this application that this software was inferior to the software being used by the prosecution. Supertext CD view did not have optical character recognition ability. Training to defence counsel by IT experts provided by the Crown proceeded through February and March 2008.

[45] The preliminary inquiry was estimated by counsel, given the complexity of the case, to last for some five months. On the 13th of February 2008, in the Ontario Court of Justice in Brampton, the preliminary inquiry was set for the 5th of January to the 9th of February 2009 and the 6th of April to the 11th of May 2009. Judicial pre-trials continued before Justice Duncan. By my rough count, there were some 14 judicial pre-trials in the Ontario Court of Justice. At these judicial pre-trials on the 12th of November 2008, further disclosure was provided and on the 2nd of December 2008, the prosecution provided a witness list to the defence. Pursuant to the original consent provided by all counsel, the preliminary inquiry began on the 5th of January 2009 and ended on the 14th of May 2009.

[46] This delay from the 29th of August 2006 to the 5th of January 2009, when the preliminary inquiry began, is by any standards a lengthy period of time. However, when one considers the complexity of this prosecution, it does not seem unreasonable. In my view, the best case scenario for the defence is that some six months may arguably be attributed to the prosecution between the time of laying of the first charges (29 August 2006) to the issue of the summonses, on the 27th of February 2007, when Ms. Dieckmann and her five co-accused were to appear before the Ontario Court of Justice in Brampton on the 4th of May 2007. However, I am mindful that Ms. Dieckmann had retained counsel from the onset who was involved in his initial preparation of the defence.

[47] From that first appearance in the Ontario Court of Justice in Brampton on the 4th of May 2007 to the commencement of the preliminary inquiry on the 5th of January 2009, a considerable period of time elapsed. While this period of time might normally be characterized as “neutral”, Mr. Bains argues that it should be viewed as Crown delay, as a result of the failure of the prosecution to provide appropriate software to access the disclosure which had been otherwise provided by the 21 CDs. I disagree. There were other factors that justify the time period between the laying of the charges, particularly the new charges in the Ontario Court of Justice in Brampton and the commencement of the preliminary inquiry. The case itself was complex, requiring considerable preparation by the prosecution and the defence. There were six accused, some of whom had not retained counsel or had changed counsel, making disclosure and preparation for the preliminary inquiry that much more difficult and lengthy. Counsel’s schedules had to be considered. Indeed, all counsel agreed on the 13th of February 2008, appearing before the Ontario Court of Justice in Brampton, on the date of the 5th of January 2009 for the commencement of the preliminary inquiry.

[48] After committal for trial on the 14th of May 2009, all counsel agreed on trial dates set for pre-trial motions, the 13th of September 2010 (predicted to last three months) and the 14th of February 2011 (again three months predicted for the actual trial).

[49] As noted above, in preparation for trial, on the 8th of September 2009, the prosecution offered “supertext research” software which would better enable the defence to access the voluminous disclosure. On the 16th of December 2009 the supertext research was installed and shortly thereafter, Mr. Mercer and Mr. Zolis, the IT experts provided by the prosecution, conducted training to defence counsel on the use of the software. Through late 2009 and in 2010, leading up to the commencement of trial, Justice Durno of the Superior Court conducted by my rough calculation some 15 judicial pre-trials (some by telephone) in an attempt to move the case forward. In all candour, I have never experienced a case in which there were so many judicial pre-trials conducted both in the Ontario Court of Justice and the Superior Court, in an attempt to assist the parties and to ensure that the case proceeded expeditiously.

[50] On the 15th of November 2010, pre-trial motions began before Mr. Justice Corbett. On the 24th of March 2011, jury selection began and on the 29th of March 2011 the prosecution began to present evidence. As noted above, on the 28th of April 2011, the trial judge, Justice Corbett, recused himself and declared a mistrial.

[51] As noted above, I have carefully considered the time between the laying of the original charges in Toronto (29 August 2006) and the issue of the summons in Brampton with the new charges that are included on this indictment (27 February 2007). Part of this time at least may be attributed to “Crown delay” as Her Majesty decided how best to pursue this prosecution. However, given the complexity of this case, at least some of this six month period may be properly characterized as “intake time” or the “inherent time requirements” of the case.

[52] I have also carefully considered the time between the laying of the original charges or the first appearance in the Ontario Court of Justice in Brampton (4th of May 2007) and the commencement of the preliminary inquiry on the 5th of January 2009. This period of some 19 months, I have carefully considered. However, it must be remembered that the date of the 5th of January 2009, for the commencement of the preliminary inquiry was in fact set on the 13th of February 2008, almost a year earlier, with the consent of all counsel. Given the complexity of the case and the volume of disclosure, I conclude that the lengthy period between the laying of the charges (particularly the new charges in Brampton) and the commencement of the preliminary inquiry was part of the inherent time requirements of the case. While Mr. Bains submits that this might normally be so, this delay should be considered to the prejudice of the prosecution because of the “failure” of the Crown to provide “proper” disclosure. As noted above, I disagree. I find no evidence of bad faith on the part of the prosecution. The prosecution provided disclosure in a timely fashion, given the volume of disclosure and provided a software program to assist the defence in accessing such disclosure. When it appeared that such access was frustrated by the inadequacy of the program, the prosecution then provided the supertext research software, which Mr. Bains concedes placed the prosecution and the defence on a “level playing field”. Under any circumstances, the volume of disclosure, even if armed with the supertext research software, would have required many months of preparation on the part of the defence. As noted above, there were other problems as well, leading to this delay, including the number of accused and the problems posed with representation by all the accused.

[53] Shortly following committal for trial on the 14th of May 2009, dates were set and consented to by all counsel, at a judicial pre-trial on the 27th of August 2009. Pre-trial motions were to begin on the 13th of September 2010 lasting for three months and the evidence was to begin on the 14th of February 2011, again lasting for three months. It was shortly following this agreement as to dates for trial that the prosecution offered the supertext research software and training in the software began.

[54] Suffice to say the time occupied by the preliminary inquiry (5 January 2009 to 14 May 2009), some four and 1/2 months, must be characterized as neutral time. So too, the time at trial before Mr. Justice Corbett (15 November 2010 to 28 April 2011), some four and 1/2 months, must be considered neutral time.

[55] Shortly following the declaration of mistrial, Justice Durno conducted a further judicial pre-trial, on the 2nd of May 2011. At that time, Justice Durno offered September 2011 as a date to commence the new trial. Defence counsel were understandably not prepared to accept Justice Corbett’s pre-trial motion rulings and Mr. Bains stated that he needed time to “regroup”. At a further judicial pre-trial on the 3rd of May, before Justice Durno, Mr. Bains stated he was unavailable in September of 2011 and at a further pre-trial on the 10th of June, Mr. Bains stated he was unavailable until mid-July or August 2012. Justice Durno set the 19th of March 2012 as a target date, which date was confirmed at a further judicial pre-trial on the 2nd of August 2011. Summarizing events that followed, as noted in the above chronology, there were further applications for adjournment of the 2012 target date. On the 16th of December, given his busy schedule, Mr. Bains indicated he would be unavailable until the 18th of March 2013 and that date was confirmed as the new trial date.

[56] Earlier trial dates were offered by Justice Durno, including a trial beginning in September of 2011. Perhaps for understandable reasons, Mr. Bains was unavailable. Ms. Dieckmann testified before the court on this application. She made it very clear that notwithstanding her emotional anguish and the pressure of these charges, she insisted on having Mr. Bains as her counsel and was prepared to accept the March 2013 trial date to have him as her counsel. She cannot therefore now be heard to complain about the delay in this prosecution until that date.

[57] As is clear from the jurisprudence, extra efforts must be made to set a preliminary inquiry predicted to last for five months and a trial expected to last for six months. In this case, I am satisfied that every effort was made to do so. There can be no question of “institutional delay”. The delay from the declaration of mistrial to the new trial date in 2013 must be considered as a waiver by Ms. Dieckmann.

[58] When the new trial begins, disclosure will have been complete. Both the prosecution and the defence will be armed with adequate software and the trial can proceed on its merits. There will be a “level playing field”.

[59] Mr. Bains has submitted that some of the time occupied in ensuring the co-accused were adequately represented by counsel, could have been resolved if the prosecution had severed his client from the co-accused, particularly those who were not represented. That may be true, but his position is not well based in law. The prosecution, in my view, has an absolute discretion to proceed jointly against multiple accused, when it is alleged that those accused are involved in a common enterprise. I need cite only R. v. Crawford; R. v. Creighton, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858 (S.C.C.). In that case, Justice Sopinka stated at para. 19:

A fourth solution would be to sever the trial whenever the conflict occurs, but no one in this appeal advocates such a solution and it would run counter to a uniform stream of authority in this country in favour of joint trials. No application for severance was made at trial and the issue was not raised or commented on in the Court of Appeal.

[60] Justice Sopinka continued at paras. 30-31 to state:

30 There exists, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a “cut-throat defence”. Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:

There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth of an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved.

31 Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co-accused is waging a “cut-throat” defence is not in itself sufficient. ...

[61] I am mindful that Ms. Dieckmann retained Mr. Bains shortly after the charges were laid against her. I am also mindful of the problems occasioned by the addition on the original information of five co-accused and the problems created by lack of consistent counsel. However, in my view, the Crown had every right to proceed against the six co-accused and there was no obligation on the part of the Crown to sever Ms. Dieckmann on the original information or on the indictment. It may be noted that Ms. Dieckmann never brought an application for severance.

[62] In sum, I conclude that with the exception of perhaps a very few months initially when the prosecution was “regrouping” (to use Mr. Bains’ terminology”) when the original charges were stayed and the prosecution was assumed by the Public Prosecution Service of Canada, there has been no delay in this case that may be considered to the prejudice of the prosecution.

[63] Neither do I conclude that any of the delay in this case was due to institutional resources. The administration of justice did its best to accommodate dates as early as possible for the preliminary inquiry and for the first trial, including many judicial pre-trials before Justice Duncan of the Ontario Court of Justice and Justice Durno of the Superior Court. The delays in both forums were simply due to intake time, the inherent time required by this complex case and the busy schedules of several counsel (together with the problems created by unrepresented accused). It may be noted that no application pursuant to s. 11(b) was brought by Ms. Dieckmann prior to or at the first trial before Justice Corbett. As noted above, the time occupied by the preliminary inquiry and the first trial is neutral time.

[64] The mistrial itself is to be regretted, but it is clearly neutral delay. Following that mistrial, an expeditious trial date was offered to Ms. Dieckmann. As I have noted, every effort was made by the administration of justice to provide her with a date as soon as reasonably possible for her preliminary inquiry and for the first trial, as well as for the new trial. This was not a two day or two week preliminary inquiry or trial. As noted in the jurisprudence, trial dates do not exist in a vacuum. They must take into account the reality of court scheduling, as long as that scheduling is reasonable. Given the complexity of this case and the complexity of disclosure, a preliminary inquiry was offered and took place, I conclude, as soon as was reasonably possible. Following committal for trial and time inherent in the case for further preparation, a date was offered for trial that was as soon as reasonably possible. Following the mistrial, a date for a new trial was again offered that was as soon as reasonably possible. This was not accepted because Ms. Dieckmann’s counsel was not available. Indeed, as it turned out, he would not be available for a new trial predicted to last some six months until March of 2013.

[65] Ms. Dieckmann testified before me on this application. She made it very clear that she insisted on having Mr. Bains as her counsel and was prepared to accept the date for a new trial in March of 2013, given his other commitments. Thus, I conclude that with the exception of a few months for “intake time” for a new trial, that the total period between the mistrial and the new trial date in March of 2013 has been waived by Ms. Dieckmann as unreasonable time for her new trial.

[66] Turning to a consideration of prejudice to the accused, Ms. Dieckmann, I refer again to the purpose of s. 11(b) as clearly set out in the jurisprudence. The s. 11(b) aims to protect both the individual rights of an accused person and the rights of society. It protects three individual rights. It protects the accused’s right of security to the person by minimizing the anxiety and stigma of criminal prosecution. It protects as well the accused’s right to liberty by minimizing the effects of pre-trial custody or restrictive bail conditions. As well, it protects the accused’s right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. Finally, s. 11(b) also seeks to protect two societal rights. It protects the public’s interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Secondly, s. 11(b) seeks to protect the public’s interest in having those accused of crime dealt with fairly.

[67] There has been no impact in this prosecution on Ms. Dieckmann’s right to liberty. The charges currently before the court by indictment were proceeded with by summons. She has not been subject to pre-trial custody or any bail conditions.

[68] I very much appreciate the anxiety and stigma felt by Ms. Dieckmann by these criminal proceedings. Her evidence by affidavit and given orally before me is touching and appreciated by the court. However, this impact upon her is as much the effect of the charges themselves as by the passage of time from when the charges were laid. I am mindful that if she had chosen to retain new counsel, her new trial could have begun in September and undoubtedly would have been completed by now (I am mindful, as noted above that no application pursuant to s. 11(b) was brought at her first trial). Having in effect consented to a new trial date in March of 2013 and having waived the delay until that new trial date, Ms. Dieckmann cannot be heard now to complain about the further delay until that new trial date.

[69] These are serious charges. They involve seven counts of fraud on Her Majesty in Right of Canada (and therefore the people of Canada) of several million dollars. While this case has involved a considerable delay in bringing it to trial, the societal interest in determining this case on its merits outweighs any possible prejudice to Ms. Dieckmann. I conclude that there has been in effect no institutional delay, that the delay attributable to the Crown in initially “getting its act in order” is but a very few month. The remaining delay is either neutral or may be attributable to the inherent time requirements of the case in preparing by the defence and the prosecution for the preliminary inquiry and the first trial. Therefore, I conclude there has been no unreasonable delay and the application must be dismissed.

R.D. REILLY J.

Released: March 26, 2012