WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code :

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

BARRIE COURT FILE NO.: 11-263
DATE: 20121120

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – RENE CONTRERAS Applicant

M. A. Alexander, for the Crown Respondent
A.R. Mackay, for the Applicant

HEARD: November 15, 2012

REASONS FOR DECISION

DiTOMASO J.

THE APPLICATION

[ 1 ] The applicant Rene Contreras brings this application to stay all charges against him based on the following grounds:

(i) the Respondent has infringed Mr. Contreras’ right under s.7 of the Canadian Charger of Rights and Freedoms to make full answer and defence; and

(ii) the Respondent has infringed Mr. Contreras’ right under s.11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time.

BACKGROUND

History of the Proceedings

[ 2 ] On March 18, 2011, Mr. Contreras was arrested and charged with two counts of sexual assault.

[ 3 ] On March 18, 2011, at the request of the police, Mr. Contreras turned himself in. He was released on an Officer in Charge Undertaking and a Promise to Appear. The Undertaking contained the following terms:

(i) The Applicant was to remain within the Province of Ontario;

(ii) He was to notify the South Simcoe Police of any change of address;

(iii) He was to abstain from communicating directly or indirectly with each complainant and one of their husbands and from going to their homes or work;

(iv) He was to abstain from the consumption of alcohol and drugs except with a prescription;

(v) He was not to be in possession of any prescription drug unless it was prescribed for him.

[ 4 ] On May 23, 2011, the police received information that Mr. Contreras was planning to move to Chile. Mr. Contreras originally came to Canada from Chile. On June 23, 2011 the Undertaking was amended to include a term that he surrender his passport which Mr. Contreras did.

[ 5 ] At no time has Mr. Contreras sought any amendments to his Undertaking.

[ 6 ] Mr. Contreras relies upon the following chronology of events regarding which the Respondent acknowledges as substantially accurate subject to certain additions/clarifications.

[ 7 ] The following in table form is the chronology of events as stated by both Mr. Contreras and the Crown.

Date
Applicant
Respondent

March 18, 2011
Applicant arrested and charged with Sexual Assault (x2)

May 12, 2011
Applicant’s first court appearance. Matter adjourned to June 2, 2011
Disclosure provided to the Agent who appeared for the Applicant. Applicant did not appear personally. See “Notice to Persons Charged with an Offence” at Tab 2 of the Respondent’s Response and Factum.

June 2, 2011
Applicant’s second court appearance. Crown indicating disclosure provided on last court date and matter adjourned to June 23, 2011
Counsel has not obtained disclosure from their Agent. Applicant did not appear personally.

June 23, 2011
Applicant’s third appearance. Attempts by defence counsel to schedule a Crown pre-trial prior to this court date had been unsuccessful. Matter adjourned to July 21, 2011
Applicant appears personally for the first time. Agent attended for counsel not properly instructed to conduct a pre-trial with the Crown.

July 21, 2011
Applicant’s fourth appearance. No time had been available with the Crown to conduct a pre-trial prior to this court date. Matter adjourned to August 11, 2011
Applicant does not appear personally.

August 11, 2011
Applicant’s fifth appearance. Matter adjourned to August 18, 2011 for defence to file a statement of issues and set date for preliminary inquiry.
Applicant does not appear personally. Agent attending for counsel not properly instructed to make an election.

August 18, 2011
Applicant’s sixth appearance. Preliminary inquiry set for January 24, 2012, status hearing date set for November 17, 2011 and September 1, 2011 to be spoken to.
Applicant does not appear personally. Agent attending for counsel has not received any further instructions from the last court date. Several dates set. No indication on record of whether counsel available earlier.

September 1, 2011
Applicant’s seventh appearance. Defence decision to conduct a Discovery, and not preliminary inquiry noted on record. Matter adjourned to September 8, 2011 to set a date for Discovery.
No transcript provided.

September 8, 2011
Applicant’s eight appearance. Date for Discovery set for October 13, 2011. Preliminary inquiry date of January 24, 2012 vacated.
Applicant does not appear personally. Matter set for discovery preliminary hearing for October 13, 2011. No indication on record of whether counsel available earlier.

October 13, 2011
Applicant’s ninth appearance. Discovery commenced but not completed. Date set for November 18, 2011 for completion of Discovery and date set for December 9, 2011 in Superior Court for Judicial Pre-trial.
Applicant appears personally for discovery preliminary hearing.

November 10, 2011
Applicant’s tenth appearance. Matter brought forward to set new date for completion of Discovery. Date set for November 24, 2011 and November 18, 2011 date vacated.
Applicant does not appear personally. Continuation for discovery preliminary hearing set.

November 24, 2011
Applicant’s eleventh appearance. Discovery completed and matter adjourned December 9, 2011 for Judicial Pre-trial in Superior Court.
Applicant appears personally for discovery preliminary hearing.

December 9, 2011
Applicant’s twelfth appearance. Counsel attended for Judicial Pre-trial. Trial date set for January 7, 2013 for five to seven days.
Applicant does not appear personally. Judicial Pre-trial conducted. Trial set for January 7, 2013 for five to seven days. Three earlier trial dates offered; two were not available to counsel for the Applicant, one was not available to the Crown.

April 13, 2012
Applicant’s thirteenth appearance. Matter brought forward to attempt to secure an earlier trial date. At that time Court only able to offer two earlier dates which were not available to counsel although counsel had many dates available before and after the first date offered by the Court. Matter adjourned to May 18, 2012 to canvass earlier dates.
Applicant does not appear personally. Two additional trial dates offered; neither available to Applicant’s counsel.

May 18, 2012
Applicant’s fourteenth appearance. Matter adjourned to May 25, 2012 before Judge Brown to consider a change of venue in order to obtain an earlier trial date.
No transcript provided.

May 25, 2012
Applicant’s fifteenth appearance. No earlier dates available. Trial dates set for January 7, 2013 confirmed.
Applicant did not appear personally. No other dates available for trial.

September 25, 2012
No transcript provided. Counsel makes Application to be removed from the record. Application denied.

[ 8 ] Counsel confirmed that the transcripts of the attendances on September 1, 2011 and May 18, 2012 have not been produced although they had been ordered some time ago. Both counsel for Mr. Contreras and the Crown agree that the Application ought to proceed as nothing materially turned on the absence of these two transcripts.

[ 9 ] By way of additional facts, the Crown asserts that on May 12, 2011, June 2, 2011, June 23, 2011 and July 21, 2011 a second Assistant Crown Attorney was available to conduct a pretrial with counsel. [1]

[ 10 ] Counsel for Mr. Contreras did provide transcripts to the Court regarding court appearances on the following dates:

May 12, 2011
June 2, 2011
June 23, 2011
July 21, 2011
August 11, 2011
August 18, 2011
September 8, 2011
October 13, 2011
November 10, 2011
December 9, 2011
April 13, 2012
May 25, 2012

[ 11 ] The matter proceeded through the Ontario Court of Justice with Mr. Contreras opting to conduct discovery. The discovery process was not completed on October 13, 2011. Nevertheless, committal was conceded by Mr. Contreras on that date and the matter was scheduled for a Judicial Pretrial in the Superior Court of Justice on December 9, 2011.

[ 12 ] When this matter came before R.S.J. Brown at the Judicial Pretrial, the parties had discussed trial dates. The defence was not available on April 2, 2011 and August 7, 2011 and the Crown was not available on October 9, 2011. Ultimately, the Crown and defence agreed on January 7, 2013 with Assignment Court on December 19, 2012. R.S.J. Brown set the trial for January 7, 2013 with estimated length of trial being five to seven days with a jury. The matter was adjourned to the December 19, 2012 Assignment Court. [2]

[ 13 ] There is no dispute that the defence pressed for earlier trial dates. The matter came before Justice Boswell on April 13, 2012. At that time, two earlier trial dates were offered by the Crown to the defence being August 13, 2012 and October 15, 2012. Both dates were not available to defence counsel. [3]

[ 14 ] On May 25, 2012 this matter came before R.S.J. Brown who noted that earlier trial dates were offered by Justice Boswell to defence counsel and those dates were declined. The trial date remained for January 7, 2013 with the matter being adjourned to the Assignment Court of December 19, 2012. [4]

[ 15 ] As the matter stands, this case is scheduled for trial on January 7, 2013, for five to seven days with a jury.

ISSUES

[ 16 ] There are two issues to be determined on this Application as follows:

Issue No. 1 – Has the Crown infringed Mr. Contreras’ right under s.7 of the Canadian Charter of Rights and Freedoms to make full answer and defence?

Issue No. 2 – Has the Crown infringed Mr. Contreras’ right under s.11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time?

POSITION OF THE PARTIES

Position of the Applicant Contreras

[ 17 ] In respect of the first issue, Mr. Contreras submits that his s.7 Charter rights have been breached wherein he is not able to make full answer and defence.

[ 18 ] In respect of the s.11(b) issue, Mr. Contreras submits that his right to a trial within a reasonable length of time has been infringed. There has been unreasonable delay of 17.5 months being both institutional/Crown delay. Further, Mr. Contreras submits that he has suffered actual prejudice. He asserts that he has suffered substantial economic and emotional prejudice as a result of the unreasonable delay. Therefore, he seeks an order staying all charges against him.

The Position of the Respondent Crown

[ 19 ] The Crown submits that this first ground of the Application should be dismissed. The Crown submits that the Application is devoid of evidence to support any suggestion that Mr. Contreras’ ability to make full answer and defence has been impaired or that his right to a fair trial is lost.

[ 20 ] With respect to the s.11(b) issue, the Crown submits that there has been no unreasonable delay. The institutional/Crown delay is approximately nine months. From the offence date to the trial date of January 7, 2013 there is a period of 22 months being the total time that it took for this matter to move through the Ontario Court of Justice and Superior Court of Justice and falls within the Morin guidelines. The Crown further submits that Mr. Contreras has not suffered any actual prejudice as a result of any unreasonable delay. The Crown submits that Mr. Contreras’ constitutional right to be tried within a reasonable time as guaranteed by s.11(b) has not been violated. In all the circumstances, the Crown submits that the delay in this case was not unreasonable and that the Application should be dismissed.

ANALYSIS

Issue No. 1 - Has the Crown infringed Mr. Contreras’ right under s.7 of the Canadian Charter of Rights and Freedoms to make full answer and defence?

[ 21 ] The Application was argued exclusively on the grounds of the s.11(b) issue. I find that the record is devoid of any evidence that the Crown impaired Mr. Contreras’ ability to make full answer and defence resulting in an infringement of his s.7 Charter rights. Mr. Contreras has failed to establish his onus on the balance of probabilities that his s.7 Charter rights have been breached. He has advanced a bald assertion without evidentiary foundation. This ground of the Application fails and is dismissed.

Issue No. 2 - Has the Crown infringed Mr. Contreras’ right under s.11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time?

[ 22 ] Mr. Contreras submits that his right to a trial within a reasonable length of time has been infringed. Given the length of delay in this case, the issue of reasonableness is raised. He has not waived any portion of the delay. He submits that the reasons for delay are largely attributed to institutional/Crown delay and not any delay on his part. Rather, Mr. Contreras submits that he has moved as quickly as possible to have this matter tried at the earliest possible date. While there were earlier trial dates offered to the defence, Mr. Contreras’ counsel was not available which should not stop the delay clock from running. In addition, Mr. Contreras submits that he has suffered actual prejudice as a result of the unreasonable delay. He has suffered substantial economic and emotional prejudice.

[ 23 ] The Crown denies that there has been unreasonable delay and disputes the basis for unreasonable delay advanced by Mr. Contreras. In addition, Mr. Contreras has not suffered actual prejudice. While Mr. Contreras submits that all charges against him be stayed, the Crown submits that this Application be dismissed.

Legal Principles

[ 24 ] 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. [5]

[ 25 ] Although the primary purpose of s. 11(b) of the Charter is the protection of the accused’s rights to a fair trial, the Supreme Court of Canada has emphasized that s. 11(b) of the Charter has an important secondary purpose: to protect society as a whole. [6]

[ 26 ] To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and the causes of the delay.

[ 27 ] Where the accused contends that he or she has not been tried within a reasonable time, the onus is clearly cast upon the accused to establish the alleged violation of s. 11(b) of the Charter . Whether any delay is unreasonable is not simply a function of the passage of time, but of time and several other constitutionally relevant factors. In determining whether or not there has been a violation of s. 11(b) of the Charter in any particular case, the following factors must all be taken into account:

(1) The length of the delay;

(2) Any waiver of time periods by the accused;

(3) The reasons for the delay;

a. The inherent time requirement 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. Systemic or institutional delays;

e. Any other reasons for delay;

(4) Any actual prejudice to the accused. [7]

[ 28 ] While the reasonableness of the delay under the governing flexible and functional balancing approach to s. 11(b) of the Charter must be evaluated in the context of the overall lapse of time, the Court should also examine the various segments of time within the total period of delay in order to conduct an effective overall assessment of the total period of delay. Such an assessment of the various individual periods of time will bring to light whether any delay is to be entirely ignored or discounted on the basis of waiver, or whether any period of delay should be viewed as neutral as having been caused for some good and justifiable reason (e.g. inherent time requirement, complexity, acceptable systemic limitations, etc.), or whether any period of time was caused by the actions of one or the parties to the litigation. [8]

[ 29 ] Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. [9]

[ 30 ] “Systemic” or “institutional delay” is properly defined as that period of delay which starts to run when the parties are ready for trial but the system cannot accommodate them. In an attempt to articulate the approximate permissible scope of systemic delay the Supreme Court of Canada has stated that, as an “administrative guideline”, the permissible range of systemic delay, after the preliminary intake functions have all be completed, is: (1) in the range of eight to ten months in the Ontario Court of Justice; and (2) in the range of six to eight months in the Superior Court of Justice. [10]

[ 31 ] With respect to the Morin guideline of eight to ten months in Provincial Courts, deviations of several months in either direction can be justified by the presence or absence of prejudice to the accused. [11]

[ 32 ] A useful discussion of the aims of s. 11(b) of the Charter and relevant principles can be found in the Ontario Court of Appeal decision of R. v. Khan , 2011 ONCA 173 at paras. 19 to 22 .

[ 33 ] In the case before this Court, the Applicant and Respondent do not disagree regarding the relevant legal principles and guidelines. However, they do disagree regarding the application of those principles to the facts of this case.

[ 34 ] Morin requires the court to characterize the reasons for delay. At paragraph 21 in Khan , the Ontario Court of Appeal states:

Mathematical or formulaic approaches to s. 11(b) are to be avoided. However, an effective, holistic, and qualitative assessment of the total period of delay and the reasons for the delay requires an evaluation of the various segments of time within this period. [12]

Section 11(b): The Delay Issue

Length of Delay

[ 35 ] The Crown concedes the 22 months that would have elapsed between the offence date and the trial date is a delay that warrants judicial scrutiny. Each party submitted a delay attribution chart in each Factum to which counsel made reference. [13]

[ 36 ] On behalf of the Applicant, it is submitted that the total delay from the First Appearance date to the current trial is 17.5 months based on institutional/Crown delay.

Any Waiver of Time Periods by the Accused

[ 37 ] There are no waiver of time periods by the accused.

The Reasons for the Delay

[ 38 ] I find that this case proceeded through the Ontario Court of Justice in a timely fashion. Taking into account various adjournments and the process which was in part guided by Mr. Contreras’ decision to engage in discovery.

[ 39 ] Notwithstanding that discovery was not concluded on October 13, 2011, committal was conceded and the matter was put over to December 9, 2011 for a Judicial Pretrial in the Superior Court of Justice. From the date of arrest until the date of committal approximately seven months had passed. Some reasonable intake time is expected and allowed for time to move this case from the Ontario Court of Justice to the Superior Court of Justice for Judicial Pretrial. It was at the Judicial Pretrial before R.S.J. Brown on December 9, 2011 that the trial date of January 7, 2013 was set. Notwithstanding more earlier trial dates (four) being offered to the defence, defence counsel was not available and January 7, 2013 continues to be the trial date.

(a) Inherent Time Requirements of the Case

[ 40 ] I agree with the Crown’s position that inherent time should be considered neutral in both the Ontario and Superior Court of Justice regarding intake time of approximately four months. The intake time takes into account time to allow for disclosure, a Crown pretrial, movement from the Ontario Court of Justice to the Superior Court and a Judicial Pretrial in the Superior Court of Justice. As the case progressed through the Ontario Court of Justice, I found no inherent or intake time requirements that caused any unreasonable delay.

(b) The actions of the parties – delay attributable to the Crown and the Defence

Actions of the Crown

[ 41 ] The Applicant submits that the Crown failed to accommodate a pretrial meeting in a timely fashion which necessitated an adjournment of a set date. Further, any enlargement of the trial process ought to follow defeated the Crown. I disagree. Crown counsel were available on each date that a Crown pretrial would have been conducted. While there was some delay attributed to Crown availability for trial in the Superior Court, this is factored into a consideration of limits on institutional resources.

Actions of the Defence

[ 42 ] As evidenced by the transcripts, at various occasions in the Ontario Court, the agent appearing on behalf of Mr. Contreras was not properly instructed and could not proceed with the next step in the case. This required the matter to be adjourned.

[ 43 ] I accept that counsel on behalf of Mr. Contreras took proactive steps to move this case as quickly as possible to the earliest trial date. Before the trial date of January 7, 2013 was set by R.S.J. Brown there were two dates on which defence counsel was unavailable and one date on which the Crown was unavailable. Even after a trial date was set by Justice Brown on December 9, 2011, earlier trial dates were revisited before Justice Boswell on April 13, 2012. At that time the transcript shows that two further earlier trial dates were offered to the defence but were also declined due to the unavailability of defence counsel.

[ 44 ] I agree that the Applicant is entitled to his choice of counsel. I further agree that defence counsel need not hold themselves in a state of perpetual availability. I accept the argument of defence counsel that it is not reasonable to hold the delay clock stops as soon as a single available date is offered to the defence and not accepted. [14]

[ 45 ] However, while the Applicant is entitled to his choice of counsel, with that choice comes the inevitability that such counsel are required to prioritize all of their court matters/clients. There must be common sense put into scheduling and all counsel are required to be reasonable in making themselves available for trial. [15] Although defence counsel was available on other dates, counsel was not available on the four earlier dates offered by the Crown.

[ 46 ] The case at bar is distinguishable from the facts in R. v. Godin . In our case, four earlier trial dates were offered to the defence and all were declined. Just as the Crown bears responsibility for trial unavailability, so should the defence bear responsibility as well. I accept the Crown’s submissions that approximately nine months are attributed to the defence either because of agents appearing in the Ontario Court of Justice that were not properly instructed or because of the unavailability of counsel for earlier trial dates offered. While the defendant did actively pursue the earlier available trial date, the fact that the defence declined four earlier trial dates cannot be ignored. Earlier trial dates were available to the defence on numerous occasions and even though the defence sought an earlier trial date, defence counsel was not available when four separate dates were offered for trial. Any delay arising from declining those dates cannot fall at the feet of the Crown. I find that in choosing to remain with his counsel of choice, Mr. Contreras acquiesced to the scheduling priorities of his counsel. In this regard, I agree with the Crown that in total, approximately nine months, are attributed to the defence either because of agents appearing in the Ontario Court that were not properly instructed or because of the unavailability of counsel for earlier trial dates offered. The evidentiary record does not support the defence position that 17.5 months is attributable to institutional/Crown delay.

(c) Limits on institutional resources

[ 47 ] The Crown submits that the total institutional delay amounts to approximately nine months in total.

[ 48 ] As stated, the guidelines in Morin suggest that an acceptable level of delay in the Ontario Court of eight to ten months and of six to eight months in the Superior Court. Therefore, institutional delay of anywhere from 14 to 18 months is acceptable. I find that nine months of institutional delay occurred in total occurred in this case. I also find that this period of time is well below the acceptable Morin guidelines.

[ 49 ] When the parties were ready to set the matter for trial on December 9, 2011 the agent for the Applicant’s counsel did not indicate on the record that they were available any sooner than August 2012. I agree that indicating “we do have a number of earlier dates available” did not assist the Court. The August time that was offered was rejected as was the earlier time in April 2012.

[ 50 ] When the matter was brought back to court on April 13, 2012 before Justice Boswell, at the request of the Applicant to find earlier dates, both August 13 and October 15, 2012 were offered and rejected by the Applicant because his counsel of choice was not available.

[ 51 ] It is not appropriate to attribute any delay to the Crown where the defence seeks earlier trial date, rejects four earlier dates for trial and then claims unreasonable delay.

[ 52 ] Rather, in the case at bar, the “institution” was able to accommodate this matter on four earlier times than what the Applicant ultimately chose and agreed to as his trial date. I find in this case it is not a matter of the clock necessarily stopping because one earlier date was offered (as in Godin ). It is clear that four earlier trial dates were offered and rejected. In this case, I find that where the defence sought an earlier trial date, was offered four earlier dates for trial and rejected all of them on the grounds of defence counsel being unavailable, no unreasonable delay was created on which Mr. Contreras can rely. Rather, I find that approximately nine months of institutional delay experienced through both the Ontario and Superior Court of Justice in this case is not unreasonable and comes within the Morin guidelines.

Prejudice to the Applicant

[ 53 ] Mr. Contreras submits that he has suffered actual prejudice as a result of the unreasonable delay in having this matter come to trial. In this regard, he delivered an affidavit sworn October 15, 2012 found in the Application Record at Tab 4. In his affidavit he described how he came to Canada from Chile in 1986. He is married with two children and lives in Churchill, Ontario. He has a Diesel Technician’s Licence and has worked as a mechanic, mainly on trucks since 1998. For the last two years he has been employed at Crew Chief Service Centre as a Service Manager.

[ 54 ] He deposed that as a result of his ongoing bail conditions causing him to remain in Ontario, he had lost numerous job opportunities to drive trucks out of province. He lost income in this regard. Further, his employer had a second shop in Detroit, Michigan where Mr. Contreras had an opportunity to work on rebuilding engines. He had to turn down an opportunity to work as a trainer for mechanics in the Detroit franchise.

[ 55 ] For a prolonged period of time he has not been able to visit his father in Chile who has a heart condition and may be at risk of dying. This has caused him great stress, sadness and emotional pain.

[ 56 ] His nephew was an army graduate in Quebec. Mr. Contreras was unable to attend his nephew’s graduation ceremony which would have been of great sentimental value to Mr. Contreras. Mr. Contreras went on to depose in his affidavit that the charges hanging over his head has caused much stress and strain on his marriage. His wife left him for a period of seven months at one point in time. Since being charged, he has been anxious to deal with the charges and put them behind him. He deposes that the length of time the matter has taken has caused him much stress, sleepless nights and he often feels depressed.

[ 57 ] Mr. Contreras testified in-chief regarding his affidavit. He confirmed the contents of his affidavit. He was concerned that everybody knew about these charges which made him feel bad. He was also very concerned about the ability of witnesses to recall what happened the longer the matter goes on.

[ 58 ] Mr. Contreras was cross-examined on his affidavit.

[ 59 ] In his cross-examination, Mr. Contreras testified that he did not lose his job and continued to earn income every two weeks. While he did turn down the job opportunity to go to Detroit to work offered in May 2012, he still continued to work at Crew Chief Service Centre.

[ 60 ] While his wife left him for a period of time she returned while these charges are pending.

[ 61 ] As for his ill father, Mr. Contreras testified that his father has been sick for at least the past five years and that his father came here to Canada to visit as opposed to Mr. Contreras going back to Chile to visit his father. In fact, Mr. Contreras has never returned to Chile since he left in 1986.

[ 62 ] Mr. Contreras acknowledged that the stress started from the time he was charged but also since that time because of the period of time that has passed. When asked if he had sought any medical attention regarding his stress complaints, Mr. Contreras testified that he did not believe in taking any pain medication. Mr. Contreras was concerned about the length of time that this matter has taken and how memories tend to fade with the passage of time.

[ 63 ] I find that the affidavit material filed by Mr. Contreras, his evidence in-chief and his cross-examination do not disclose any evidence of actual prejudice beyond that inherent in facing criminal charges before this court. While he claimed that he had suffered economic loss, stress, anxiety and marital problems amounting to prejudice, I find these concerns are outside of the analysis. Rather, they are associated with the severity of the crimes with which he is charged. Feelings of stress, sleepless nights and depression are not as a result of any unreasonable delay but as a result of the charges themselves. He continues to be employed fulltime even if the location of his work has been somewhat restricted. He continues to earn a living and is able to support his family. He was released on an Officer in Charge Undertaking and the terms of which were minimal and far from onerous. Mr. Contreras had not been restricted in his movements or actions as a result of his release. He was not obliged to submit to a curfew or report to police. Mr. Contreras was permitted to appear through counsel pursuant to a designation and indeed he attended court personally on very few occasions as is evidenced by the chronology of events.

[ 64 ] Mr. Contreras has never made an Application to have his release terms varied or asked for the Crown’s consent to vary his release. Perhaps he would have been able to visit family if he had sought variation. There is no evidence that Mr. Contreras ever sought a variation of his terms of release and there is no evidence that the Crown would have denied any request for a variation.

[ 65 ] While Mr. Contreras’ wife left him for a time, she returned and continues to live with him. He has not sought any medical attention in respect of his stress, sleepless nights or depression.

[ 66 ] While it is a legitimate concern that with the passage of time witnesses might fail to remember events relevant to this case, or that witnesses might pass away, there is no specific evidence either by Mr. Contreras or by any witness that this in fact has happened in the case at bar.

[ 67 ] For all of these reasons, I have concluded that Mr. Contreras has not suffered any actual prejudice and certainly no prejudice directly related to any unreasonable delay in this case.

BALANCING CHARTER INTERESTS

[ 68 ] Generally, a determination of whether the right to be tried within a reasonable time has been denied is not by the application of a mathematical or administrative formula. Rather, that determination is made by balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or otherwise cause delay.

[ 69 ] The charges in this case are of public concern such that societal interests may be considered in determining whether or not there has been an infringement of the Applicant’s right to a speedy trial. The Supreme Court has recognized that the interests of an accused must be balanced against the interests of society in insuring that those who break the law are brought to trial. The more serious the offence, the greater the societal interest in ensuring that the trial proceeds. In deciding this Application, I have been very much aware of the balancing of these interests. The alleged facts and charges in this case are very serious. I agree with the Crown that there is strong societal interest in having these charges tried on their merits. This is even more so considering the minimal prejudice that Mr. Contreras has suffered. [16]

CONCLUSION

[ 70 ] I conclude that when all of the relevant circumstances of the present case are subjected to judicial scrutiny and analysis with the applicable legal principles, the delay in this matter is not unreasonable. The Applicant’s constitutional right to be tried within a reasonable time as guaranteed by s.11(b) has not been violated. The Applicant fails in respect of this aspect of his Application as well.

DISPOSITION

[ 71 ] Accordingly, for these Reasons, this Application is dismissed.

DiTOMASO J.

Released: November 20, 2012

[1] Affidavit of Martine Ross, Respondent’s Response and Factum Tab 3
[2] Transcripts Brief Tab 11 December 9, 2011
[3] Transcript Brief Tab 12 April 13, 2012
[4] Transcript Brief Tab 14 May 25, 2012
[5] R. v. Morin , 1992 SCC 89, [1992] S.C.J. No. 25 (S.C.C.) at paras. 27-30
[6] R. v. Morin , supra at paras. 29-30
[7] R. v. Morin , supra, para. 31
[8] R. v. Morin , supra
[9] R. v. Godin , 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.) at para. 18
[10] R. v. Morin , supra at para. 55
[11] R. v. Morin , supra at para. 76
[12] R. v. Khan , supra
[13] Applicant’s Delay Attribution Chart at para. 2 of the Applicant’s Factum, Application Record Tab 3 and Crown Delay Attribution Chart at Respondent’s Factum Tab 1 pp. 15 and 16 para. 32
[14] Regina v. Godin , 2009 SCC 26, [2009] 2 S.C.R. 3 para. 23
[15] Regina v. Godin (supra); Regina v. McAllister , [2012] O.J. No. 2171
[16] Morin , supra at para. 37