COURT FILE NO.: 09-10404
DATE: 20120203
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Brian McCallion, for the Crown
- and -
ANTONIO CARANCI
Applicant
Anthony Robbins, for the Applicant
HEARD: January 6, 2012
REASONS FOR DECISION
LAUWERS J.
[1] This is an application for a stay of proceedings under section 24 of the Canadian Charter of Rights and Freedoms on the basis that the applicant’s right to be tried within a reasonable time under section 11(b) of the Charter has been infringed. The applicant points out that a total of about 28 months will have elapsed since his arrest on November 8, 2009 and the anticipated start of the Superior Court trial on March 12, 2011. The applicant submits that nearly 25 months is Crown-attributable delay exceeding the upper limits of the applicable guidelines, and claims that he has suffered both inferred and actual prejudice as a result of the delay.
[2] For the reasons set out below the application is dismissed.
Background facts
[3] The applicant was charged on November 8, 2009 with 18 counts divided between firearms offences and bawdy house offences. The bawdy house offences were withdrawn on April 18, 2011. The applicant now faces three firearm offences: careless storage of a firearm, contrary to section 86(3) of the Criminal Code; possession of a firearm while not being the holder of a licence permitting such a possession, contrary to section 91(2) of the Code; and possession of a loaded firearm, contrary to section 95(2) of the Code. These allegations arise from the execution of a search warrant on the applicant’s residence and the seizure of the firearm from the door panel of the applicant’s vehicle. The firearm is identified as a Bryco .38 caliber semi-automatic handgun, and it was loaded with five rounds of ammunition in the magazine.
[4] Detective Constable Matthew was the officer in charge of the investigation and was the affiant on the application to obtain the warrant to search the applicant’s residence. D.C. Matthew swore an Information to Obtain a Search Warrant for the purpose of providing grounds to search the premises relying on information provided by a confidential informant. The search warrant was ordered sealed. D.C. Matthew participated in the execution of the search.
The analytical framework
[5] The analytical framework for assessing whether the delay is unreasonable under section 11(b) of the Charter is set out in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. The Morin principles are well summarized by Boswell J. in R. v. D.M., 2012 ONSC 221 at 10-12:
10 Section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") provides that every person charged with a criminal offence has the right to be tried within a reasonable time. This right serves to protect and promote a number of key individual interests. First, it serves to minimize the anxiety and stigma associated with being charged with a criminal offence. Second, it serves to reduce the restrictions on liberty that may result from pre-trial incarceration and/or restrictive bail conditions. Third, it promotes the hearing of proceedings while evidence is available and fresh. At the same time, it promotes society's interest in seeing that trials are held within a reasonable time, and in seeing that those who transgress the law are dealt with fairly and according to law: see R. v. Morin, as above, at paras. 27-28 and R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45.
11 The leading authority on s. 11(b) applications remains the Supreme Court's 1992 decision in R. v. Morin, as above. In Morin, Mr. Justice Sopinka confirmed that the primary purpose of s. 11(b) is the protection of the individual rights of the accused. That said, there are always significant societal interests in play when an accused seeks to have criminal charges stayed on the basis of delay. The remedy of a stay permanently prevents the state from prosecuting alleged criminal acts. Courts must balance the individual rights of the accused and society's interests within the factual context of each individual case, having regard to the particulars and causes of any impugned delays. A purely mathematical calculation of the time between charge and trial is not sufficient - a contextual analysis is necessary in every case.
12 In Morin, the Supreme Court provided a framework for the requisite judicial balancing. Within that framework, four factors must be considered:
(i) The length of the delay. This factor requires a general overview of the length of any delays. If the delays are prima facie unexceptional then further inquiry is not necessary. Where the delays do warrant further inquiry, the remaining three factors are to be considered;
(ii) Any waivers of time periods. Any time periods unequivocally waived by an accused are to be deducted from the overall period of delay;
(iii) The reasons for the delay, including five sub-categories:
inherent time requirements of the case;
actions of the accused;
actions of the Crown;
institutional resources;
other reasons for delay; and
(iv) Prejudice to the accused. There are two types of prejudice that factor into the 11(b) analysis. First, inferential prejudice, which arises from the delay itself. The longer the delay, the more likely it is that a court will infer prejudice. Second, prejudice, or a lack thereof, based on evidence led by the accused or the Crown.
[6] I note Sopinka J.’s instruction at paragraph 32 of Morin that none of these factors is necessarily dispositive: “the judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in light of the other factors.” The burden of proof throughout is on the accused: R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120 at 1132-33.
[7] This application turns largely on alleged delays in Crown disclosure. The chronology setting out the events in the processing of this case is set out in the appendix.
[8] The position of the applicant is set out in his factum:
The length of delay is calculated from the moment a person is charged to the end of the trial. An anticipated trial date has been set for this matter of March 12, 2012. The length of the delay from when the Information was sworn on November 8, 2009 to the anticipated start date of the Superior Court trial scheduled for March 12, 2012 is 854 days (28 months and three days). Of that delay, 215 days can be attributable to the Crown and another 536 days is properly characterized as institutional delay. The remaining 97 days could be construed as inherent or neutral. Therefore, the total amount of attributable delay for the purpose of s. 11(b) is 751 days (24 months and 21 days). It is respectfully submitted that nearly 25 months total delay is well beyond the constitutional limits for relatively straightforward charges. This is particularly egregious when the delay in this case was nearly largely attributed to the Crown in failing to respond to numerous requests for additional disclosure. Moreover, the disclosure largely related to the bawdy house offences, which the Crown elected not to proceed with nearly a year and half after the prosecution commenced.
[9] The total delay in the Ontario Court of Justice is about 21 months. The total delay in the Superior Court of Justice will be about 7 months. The Crown concedes and I agree that this overall delay warrants investigation. The Crown also concedes that the applicant did not waive his section 11 (b) rights. Under the Morin framework, this leaves the reasons for the delay and the prejudice to the applicant as matters to be assessed by the court.
[10] The case calls for a careful examination of the delays and the reasons for them, bearing in mind, however, the caution expressed by Cromwell J. in R. v. Godin , 2009 SCC 26, [2009] 2 S.C.R. 3 at para.18:
This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important not to lose sight of the forest for the trees when engaging in this detailed analysis. As Sopinka J. noted in Morin, at page 787, ‘the general approach…is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which s. 11(b) is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.’
The Reasons for the Delay
[11] In R. v. Qureshi, 2004 CanLII 40657 (ON CA), [2004] O.J. No. 4711 at para.13, Laskin J.A. provided additional structure for assessing the reasons for the delay by grouping them into five categories.
(a) Inherent time requirements: These requirements recognize that some delay is inevitable. They cover the period required to prepare and process a case assuming the availability of adequate institutional resources. The inherent time requirements of a case are neutral in the s. 11(b) reasonableness assessment. They do not count against the Crown or the accused. These time requirements include intake procedures -- for example, bail applications, retention of counsel and disclosure. Greater time is required if the case is complex or if the proceedings include both a preliminary inquiry in the Provincial Court and a trial in the Superior Court.
(b) Actions of the accused: Actions of the accused falling short of waiver must nonetheless be taken into account in deciding whether the delay is unreasonable.
(c) Actions of the Crown: Similarly, the Crown's actions may delay the trial. Even if not blameworthy, the prosecution cannot rely on its own actions to justify a delay that is otherwise unreasonable.
(d) Limits on institutional resources: Inadequate resources may cause institutional or systemic delay. This delay begins when the parties are ready for trial but the system cannot give them a speedy trial date. The Supreme Court has put forward administrative guidelines for acceptable institutional delay: eight to ten months in the Provincial Court and six to eight months in the Superior Court. These guidelines do not serve as limitation periods and may yield to other considerations. Where they are exceeded, however, the overall delay risks being labelled unreasonable.
(e) Other reasons for the delay: In deciding on a s. 11(b) application, the court must take account of all the reasons for the delay. This category catches reasons for delay that do not fit into the other four categories.
[12] The analysis recognizes that there are time requirements inherent in every case, as Laskin J.A. points out, including: “intake procedures -- for example, bail applications, retention of counsel and disclosure.” He notes that more time will be required for more complex cases or two-stage cases such as this one with a preliminary inquiry in the Ontario Court and a trial in the Superior Court. This case, with 18 charges at the outset, would be seen as somewhat complex. The bawdy house charges were eventually withdrawn, but it would be unfair to consider the case simple and retrospectively impose shorter timeframes. Indeed disclosure issues seem to have led the Crown to abandon the bawdy house charges.
[13] The nub of the applicant’s complaint is that the delay was caused by the Crown’s incomplete disclosure. The items of particular concern were the Information to Obtain a Search Warrant, the notes of the affiant, D.C. Matthew in support of the search warrant, and the faxed copy of the search warrant itself.
The allocation of responsibility for delay
[14] For convenience, I have divided the chronology into eight periods. The first period starts November 8, 2009 when the Information was sworn. On December 14, 2009 defence counsel sent a letter to the Crown requesting: “the notes of all police involved in this investigation, in particular…D.C. Matthew…” On January 12, 2010 defence counsel sent a letter reiterating request for disclosure. On February 3, 2010, defence counsel wrote the Crown requesting: “the notes of all police involved.” The letter also noted: “Further, Justice West advised on today’s date that a letter be written to your attention saying that we require the information to obtain the search warrant as soon as possible in order to move forward with this case.” The defence submits that only the time up to December 14, 2009 is intake time and the rest is attributable to Crown delay.
[15] Given the complexity of the case at that stage, I find that a reasonable end to the intake period is February 24, 2010. In making this determination, I concur with West J.’s observation at the judicial pre-trial conference on February 3, 2010 that three more weeks would be “more than sufficient time” for the Crown to get the material to the defence. In my view all of this time should be classified as intake time and therefore as inherent time. The total time is about three months and 21 days.
[16] The second period is between February 24, 2010 and April 1, 2010 while the Crown was working on disclosure. This is 33 days that I would attribute to Crown delay.
[17] The third period is between the April 1, 2010 appearance and the April 19, 2010 judicial pre-trial conference. Despite the continuing disclosure issue the time out to the judicial pre-trial conference was 19 days and is best assessed as inherent delay. See R. v. D.M., supra, per Boswell J. at paras 44-46.
[18] On April 13, 2010, defence counsel wrote to the Crown advising that “we are still missing disclosure on this matter, in particular…the notes of the following officers…Matthew #1148 (affiant).” This contradicts the claim in the Crown’s factum that there was no mention in defence counsel’s letter of April 13, 2010 that the affiant’s notes were missing.
[19] The Crown’s factum states that it was at the judicial pre-trial conference before Blouin J. on April 19, 2010 that Crown counsel first learned that the affiant’s notes were missing from the disclosure. The factum asserts that: “This was the first time that the Crown had been notified that this item was outstanding as the Crown had understood the notes were disclosed on February 22 and 24, 2010. The matter was adjourned to May 11, 2010.”
[20] The fourth period is between April 19, 2010 and May 21, 2010, when the Crown was required to comply with disclosure requests.
[21] On April 26, 2010, the Crown wrote to defence counsel advising that he had reviewed the CDs disclosed to the defence on February 22 and 24, 2010: “The notes of all officers, documents, and photos referred to in point numbers 1, 3 and 5 in your correspondence can be found on those CDs.”
[22] On April 28, 2010, defence counsel wrote:
We have looked through all of our CD/DVD disclosure and we do not have the CDs for which you indicated were given to counsel on February 22 and 24, 2010 and included the notes of the officers, documents and photos referred to in numbers 1, 3 and 5 of our correspondence, as noted below:
- The notes of the following officers…Matthew #1148 (affiant)
[23] The letter went on to say: “The CD/DVDs noted as received on February 24th, 2010 are Mr. Caranci’s statement and surveillance video/photos only. They do not include any officers’ notes or written disclosure whatsoever. We therefore we would very much appreciate a copy of the CD/DVDs that include all officers’ notes.”
[24] The Crown factum asserts that after receiving the letter of April 28, 2010, “instead of engaging in a futile dispute with defence counsel, the Crown responded to defence counsel on May 3, 2010 and made efforts to facilitate duplicate disclosure.”
[25] The matter was further adjourned on May 11, 2010 to May 21, 2010 because the duplicate disclosure was not yet available. Disclosure occurred on May 21, 2010 when defence counsel attended at the Crown’s office and signed for the CD, which should have included the affiant’s notes.
[26] The Crown responds in its factum:
Defence counsel personally signed an undertaking when he received disclosure in the form of a CD on May 21, 2010. The Crown submits that the officer’s notes referred to by defence counsel, including the affiant’s notes were on that CD.
The Respondent submits the Applicant likely lost or misplaced the disclosure. Mr. Robbins moved his office from 481 University Avenue, Suite 510, Toronto to 36 Lombard St., Suite 100, Toronto sometime between April 28, 2010 and February 11, 2011.
[27] This time is attributable to the Crown because of the ongoing disclosure deficiencies and comprises 33 days, especially given the Crown’s implied concession set out at para. 32 below.
[28] The fifth period is between May 21, 2010 and the scheduled preliminary inquiry on March 28, 2011. This was a period of 10 months and seven days.
[29] The Crown notes that earlier dates were available to the court, but defence counsel was unavailable for the weeks of March 14-18 and March 21-25 due to the spring break.
[30] The Crown and defence counsel met by chance in early March, 2011. The Crown’s factum notes that: “Defence counsel did not advise the Crown that he was missing the affiant’s notes.” There was a discussion about whether the Crown would consent to the cross-examination of the affiant and that consent was conveyed by letter dated March 7, 2011.
[31] The Crown’s factum states:
On Sunday March 27, 2011 at approximately 6:00 p.m., defence counsel phoned Crown counsel at home. The three-day preliminary hearing was scheduled to start the next day. Defence counsel advised that he did not have the officers’ notes. Crown counsel was astonished by this statement given the diligent efforts made by the Crown, the fact that 10 months had passed since the setting of the preliminary hearing, and that defence counsel had failed to bring this to the attention of the Crown earlier. The Crown submits that the notes had been disclosed not once, but twice in early 2010.
[32] This was put on the record by Crown counsel at the outset of the preliminary hearing to commence March 28, 2011 before West J. Mr. Robbins, who sought an adjournment, then noted:
And I think one of the reasons for that misunderstanding, Mr. McCallion will correct me if I’m wrong, is that we thought that the police notes that were missing would be on one of the discs and they’re not. What happened instead is I’ve got – given duplicate discs of what I already had.
Mr. McCallion did not correct Mr. Robbins’ statement to the court. Mr. McCallion advised the court that: “I likely would have been asking for an adjournment in any event to enable an officer to attend to give evidence, the seizing officer, the officer who receives the gun.” He added that: “his unavailability didn’t come to my attention until Thursday of last week.”
[33] Counsel did not provide the court with an evidentiary basis to establish when they were first ready to proceed with a three-day preliminary inquiry. It is reasonable to conclude that some preparation time would have been necessary. Since institutional delay only begins when counsel are ready for the hearing but the court is unable to accommodate them, in my view two months of this period are inherent and were necessary for counsel to prepare for the preliminary hearing. The balance of eight months and seven days is institutional time.
[34] The sixth period is between March 28, 2011, and August 9, 2011 when the preliminary inquiry finally commenced. The period is four months and 14 days. This was obviously an effort to speed things up since the original time out to the preliminary inquiry was more than 10 months.
[35] The transcript reflects that the defence would have been available for the preliminary inquiry to begin as early as April 4 and 5, 2011, but that the Crown would not have been able to provide the missing disclosure to the defence in time. As the defence points out in its reply factum:
If the notes of the officers had already been disclosed as alleged in the Crown’s response why would the Crown be unable to provide the disclosure before April 4, 2011? Surely if the notes of the police were in possession of the Crown in the format of a CD this would have been copied and provided to the defence immediately, and the preliminary inquiry would have been scheduled for April 4th and 5th, 2011 rather than August 9th and 10th, 2011.
[36] The Crown’ factum asserts:
On April 17, 2011 defence counsel and the Crown spoke via telephone. Crown counsel was at home and spoke to defence counsel via cell phone. During this conversation, Defence counsel requested the Crown’s consent to have a trial in the Ontario Court of Justice instead of a preliminary hearing. The Crown consented to this.
[37] In early to mid-July, 2011, defence counsel contacted Crown counsel requesting a copy of the faxed copy of the information to obtain that was received from the affiant by the Office of the Justice of the Peace. As it turns out, however, that: “the Office of the Justice of the Peace did not have possession of the document defence counsel sought. Defence counsel was advised on July 14, 2011.”
[38] There were abortive efforts to have an earlier trial. The Crown’s factum asserts:
On the morning of August 9, 2011 Crown counsel was in courtroom 106, and DC Matthew was in attendance. Defence counsel astonished Crown counsel, mere minutes before the entrance of Justice Bourque, by stating that he would have a preliminary hearing and that he would not make any concession about [firearm] possession. It was prejudicial to the Crown as DC Truong had not been notified. Crown counsel, while under significant distress, was able to secure DC Truong’s attendance on short notice.
[39] The preliminary inquiry then proceeded. The Crown asserts that the defence’s failure to proceed to trial that day should reasonably result in the attribution of all the Superior Court time to the defence.
[40] As I noted, defence counsel did not advise the Crown that it was unable to proceed with the preliminary inquiry on March 28, 2011 due to disclosure issues until the night before the scheduled hearing. I could assess this as defence delay on the basis that the defence’s late notice that it still lacked disclosure caused the first preliminary inquiry to abort and therefore caused the additional delay: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 at para. 37. That said, it would also be possible to classify this time period of four months and 14 days as Crown delay since the preliminary hearing on March 28, 2011 would not have proceeded in any event due to the absence of a critical Crown witness. Ultimately, neither side was ready to proceed with the scheduled preliminary inquiry and it had to be adjourned. An adjournment necessary to complete a scheduled preliminary inquiry could be assessed as part of the inherent time sequence of the case. I return to this below.
[41] Looking at the evidence I am able to draw the following conclusions. First, the applicant did dutifully make timely requests for disclosure from the Crown that were sufficiently particular. Second, the Crown responded to those requests and believed that it had answered them. Third, when it became clear that there was still some missing disclosure, the Crown responded reasonably quickly in providing the disclosure.
[42] I am not inclined to find that either the Crown or the defence acted inappropriately or strategically in the disclosure process. Even the defence called it a “misunderstanding” in making submissions at the March 28, 2011 preliminary inquiry. That said the Crown’s overall performance in providing timely disclosure was not exemplary, nor was the “last-minute” conduct of the defence.
[43] The seventh period relates to the process in the Superior Court of Justice between August 17, 2011 and November 20, 2011. In my view this three-month time period relates to intake before the Superior Court and is therefore inherent time in a two-stage proceeding: Morin, at para. 43.
[44] The eighth period is between the date of the last judicial pre-trial and the trial date on March 12, 2012. This is institutional delay of three months and 22 days.
[45] I now total the amounts in each category, setting aside for the moment the delay of four months and 14 days because of the need to adjourn the scheduled preliminary inquiry.
| Inherent delay | Institutional Delay | Crown Delay | Defence Delay |
|---|---|---|---|
| 9 months 11 days | 12 months | 2 months | 0 |
[46] The administrative guidelines for tolerable systemic delays set in Morin were 8-10 months in the Ontario Court of Justice and 6-8 months in the Superior Court, for a total in a two-stage proceeding of 14-18 months. Taking together the institutional delay and the Crown delay here, the total is 14 months. If the four months and 14-day delay of the preliminary inquiry were to be entirely attributed to the Crown (which I would not find to be unfair in the circumstances) then the total attributable delay would be 18.5 months. Even if I were to add as institutional time the two months relating to the time out to the first preliminary inquiry that I called inherent time for preparation for the third period, the total would be 20.5 months. This is modestly above the total guidelines set by Morin for a two-stage process. I note that the guidelines set in Morin are not limitation periods or ceilings, but must be considered in the context of the case as a whole.
[47] The prejudice to the accused must be weighed in because its presence or absence affects the level of tolerance for attributable delay.
Prejudice
[48] I agree with the accused that: “Prejudice can be established through evidence – actual prejudice – or inferred from the length of delay itself.” [emphasis by defence]. See Morin, at para. 61. In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 per Cromwell J. at para. 30:
30 Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence.
[49] The degree of prejudice is important as Laskin J.A. observed in R. v. Qureshi, 2004 CanLII 40657 (ON CA), [2004] O.J. No. 4711 at para. 41.
[50] The Crown argues that the prejudice must be the result of the delay and not just the fact of the charge, as observed by Wilson J. in R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588 at page 624, para 71:
[T]he impairment or prejudice we are concerned with under s. 11(b) is the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged. The prejudice arising from the fact of being charged with a criminal offence is suffered even where the accused is tried within a reasonable time. It is, so to speak, inherent in the system itself.
[51] The applicant raises a number of specific complaints about delay and actual prejudice that were set out in his Affidavit and were explored in cross-examination. Generally the Crown takes the position that the applicant’s distress is more about the fact that charges were laid and not so much with the delay in the trial. I disagree in part because the delay made some things worse for the applicant.
[52] First, Mr. Caranci refers to the bawdy house charges and notes his distress at the “significant media attention,” in particular the reference in “one of the Brampton papers” that he was a “pimp.” In my view this prejudice has to do with the fact of the bawdy house charges and not with any delay in their prosecution. The prejudice to Mr. Caranci’s reputation was in the media reporting at the time of the charge.
[53] Second, the applicant raises a number of complaints about his bail conditions. In R. v. Pusic, (1996), 1996 CanLII 8215 (ON SC), 30 O.R. (3d) 692,[1996] O.J. No. 3329 (Ont. Ct. (Gen. Div.)), Hill J. noted at para. 169 that: “Section 11(b) of the Charter is also designed to minimize the exposure of an accused person to restrictions on his/her liberty whether in terms of pre-trial incarceration or the effect of judicial interim release conditions.”
[54] The bail conditions were relatively strict at the beginning, amounting to house arrest, which affected the applicant’s ability to earn an income. These conditions were varied after two months on January 8, 2010 to allow him to work. The work hours were varied on May 14, 2010 to allow him to work from 6:00 a.m. to 9:30 p.m. The house arrest conditions were finally deleted on March 30, 2011. This confinement went on for about 17 months and, he deposes, put great stress in his family.
[55] In my view, there is some prejudice relating to the delay. The variations in the bail conditions have largely relieved that stress and did so within the time that the case could have gotten to trial. The Crown seems to have routinely consented to the variations, so it is not clear to me why the applicant did not move earlier for a variation. I am therefore unable to conclude that the delay of the trial is a material component of this complaint.
[56] Third, I accept that there was prejudice in the delay that led to the bawdy house offences not being dropped until April 18, 2011. This is significant because the proceeds of the applicant’s sale of the business that was alleged to be the bawdy house were frozen until then, causing financial distress to the applicant and his family.
[57] Fourth, I accept that the marital stresses experienced by the applicant were in part due to the delay in resolving the case, in part due to the close living conditions over that period of time, in part due to financial distress, and were also in part due to the inability of the accused and his wife to move on to have a family while uncertainty persists about the applicant’s future.
[58] Fifth, the applicant complains about restrictions on his travel. These have come about, as the Crown points out, as a result of his being charged with criminal offences. The applicant admitted in cross-examination that these restrictions were not particularly burdensome.
[59] Finally, the applicant complains about personal stress, anxiety, and sleeplessness. In my view, it is fair to draw the inference that his distress has to do both with the fact of the charges and also with the fact that the charges have been hanging over his head for some period of time.
[60] I note that the applicant makes no allegation that the delay has in any way prejudiced his fair trial as would occur, for example, by the loss of evidence that naturally happens with the flow of time as memories fade and witnesses die. The delay in this case, however, has not resulted in any such prejudice.
[61] I must balance the prejudice suffered by the applicant against both the degree of delay and the seriousness of the charges. I do not find the degree of prejudice to be significant. The delay in this case was only modestly above the total guidelines set by Morin for a two-stage process. The remaining charges are serious and a stay of proceedings would cause considerable prejudice to society’s interest. On balance, I find that the applicant has not persuaded me that the prejudice to him in this case is of sufficient weight to warrant a stay under section 11(b) of the Charter. The application is dismissed.
P.D. Lauwers J.
RELEASED: February 3, 2012
Appendix
Table 1: Ontario Court of Justice
| Dates | Delay | Crown's Version of Event | Defence Version of Events |
|---|---|---|---|
| November 8, 2009 | 4 days | Delay between date information sworn and date Applicant released on surety recognizance. | Information sworn, first appearance, remanded for show cause. |
| November 12, 2009 | 20 days | Delay between show cause hearing and first appearance. | Applicant released on $300,000 surety recognizance after show cause hearing. |
| December 2, 2009 | 5 days | Matter remanded to December 7; new information to be laid. | No disclosure provided; Crown indicated that a new information would be laid. |
| December 7, 2009 | 1 month | Further disclosure provided December 7, 2009. | Matter remanded to January 6, 2010 for defence to review further disclosure and to have Crown pre-trial. Initial disclosure provided. Counsel retained. Remanded for CPT; Counsel to make request to Crown for outstanding items of disclosure. Counsel sent first letter December 14, 2009 requesting items of outstanding disclosure. |
| January 6, 2010 | 28 days | Delay requested by Crown to address outstanding disclosure. | Counsel brought a motion to unseal the search warrant, which was consented to; Significant outstanding disclosure yet to be provided by the Crown. Counsel sent second letter January 12, 2010 requesting the items of outstanding disclosure. |
| February 3, 2010 | 21 days | Adjournment, defence is missing officer notes and Information to Obtain. | Information to obtain the search warrant and other items of disclosure still not available. Counsel sent third letter February 3, 2010 requesting the items of outstanding disclosure. |
| February 24, 2010 | 22 days | Disclosure provided, but Information to Obtain is outstanding. | Transcript not available when factum written. |
| March 18, 2010 | 11 days | Disclosure provided. Crown surprised to hear Information to Obtain has not been received, and will look into it. | Further DVD disclosure provided but not search warrant disclosure. |
| April 1, 2010 | 18 days | Delay between April 1, 2010 appearance and Judicial pre-trial. Information to Obtain provided to counsel on April 1, 2010. | Information to obtain the search warrant provided to Counsel; JPT scheduled. Sent fourth letter April 13, 2010 to Crown requesting the items of outstanding disclosure. |
| April 19, 2010 | 22 days | The disclosure sought by defence has already been disclosed to counsel on February 24, 2010. Crown confirms this in a letter dated April 26, 2010. Counsel responds on April 28, 2010 that he does not have the CD disclosed on February 24, 2010. On May 3, Crown agreed to provide a second copy, but was not available for May 11. 2011. | JPT held; significant disclosure outstanding. Fifth letter sent April 28, 2010 requesting the items of outstanding disclosure. |
| May 11, 2010 | 10 days | Second copy of CD is provided on May 21, 2010. | Outstanding disclosure still not available. |
| May 21, 2010 | 10 months 7 days | Delay between May 21, 2010 appearance to first preliminary hearing date. Earlier dates were available to the court, but defence counsel was unavailable for two weeks due to the spring break; weeks of March 14-18 and March 21-25. Counsel calls Crown the night before the preliminary hearing and advises disclosure is outstanding. Defence has not completed preparation for trial until March 28, 2011. | Preliminary Inquiry scheduled for three days; Outstanding disclosure still not available. Sixth letter sent February 11, 2011 to Crown requesting the items of outstanding disclosure. |
| March 28, 2011 | 4 months 14 days | Delay between first preliminary hearing dates and second preliminary hearing dates. Delay because Det. Truong unavailable and because defence not able to proceed with preliminary hearing. | Incomplete substantial disclosure provided to Counsel; Adjournment of Preliminary Inquiry required due to outstanding disclosure and officer unavailability. |
| April 18, 2011 | Bawdyhouse charges dropped | ||
| August 9, 2011 | As a result of prior conversations with counsel, the Crown understands the Applicant has re-elected to trial. Two Charter motions before the court. Minutes before court begins, Counsel advises the Crown that he will not be re-electing. | Re-scheduled Preliminary Inquiry Dates. |
Table 2: Superior Court of Justice
| Dates | Delay | Crown Version of Event | Defence Version of Events |
|---|---|---|---|
| August 17, 2011 | 29 days | Delay from date indictment prepared to date scheduled for judicial pre-trial | Indictment prepared |
| September 15, 2011 | 5 days | Delay to hold continuation of judicial pre-trial. Crown will not consent to re-election in the Ontario Court of Justice. | Judicial Pre-trial held by not completed, adjourned on consent |
| September 20, 2011 | 2 months | Date for trial set on September 20, 2011. Delay of two months for counsel to prepare for trial | Judicial Pre-trial continued, earliest trial date set for March 12, 2012 (date for s. 11(b) application scheduled for January 6, 2012) |
| November 20, 2011 | 3 months 22 days | Delay from date both counsel prepared for trial to scheduled trial date | Estimated date for trial |