Her Majesty the Queen v. Andrea Krywucky and Herschel Segal, 2013 ONSC 1112

COURT FILE NO.: 11144

DATE: 2013 03 01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

Mr. Paul Bailey, for the Public

Prosecution Service

-and-

ANDREA KRYWUCKY

Mr. Geoff Snow, for the Defendant

Krywucky

-and-

HERSCHEL SEGAL

Applicants

Mr. Richard Posner, for the Defendant

Segal

HEARD: January 2, 3, 4, 7 & 9, 2013

RULING ON APPLICATION PURSUANT TO SECTIONS 7, 8 11(b) & 24 OF THE CHARTER

A.J. GOODMAN, J.

[1] This is an application brought by the defendants for a stay of proceedings by virtue of breaches of ss. 7, 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms. The defendants also seek to exclude certain evidence under s. 24(2) as a result of a breach of their s. 8 Charter rights.

[2] Specifically, the defendants submit that their s. 7 rights were violated by the actions of a principal police witness and his failure to disclose a conflict of interest with counsel. Further, the defendants argue that their s. 11(b) rights have been infringed due to the inordinate delay in proceeding with this trial. Finally, the defendants submit that their s. 8 Charter rights were violated by the warrantless search of their residence.

[3] At the outset of the hearing, it was agreed by all parties that the evidence related to all of the alleged Charter breaches would be presented at the same time. It was also agreed by the parties that the Crown would call the majority of witnesses for these applications.

The Evidence

[4] The first witness was James Edward Dean.[^1] Mr. Dean is a lawyer in London, having been recently called to the Bar. His practice is primarily focussed on criminal defence litigation. Mr. Dean is a former police officer with the London City Police with many years of service in a variety of general and specialized positions. He was employed by the London Police Service in a uniform capacity on July 1, 2009. During this same period, and while employed full time as a police officer, Mr. Dean was attending the Faculty of Law at Western University and had completed the second year of his studies.

[5] On July 1, 2009 at approximately 2:04 a.m., Officer Dean was on duty and was dispatched to attend a potential break and enter in progress at 47 Genevieve Street in London. This initial call was followed up with an update advising that a female was yelling ‘leave me alone, leave me alone’, in conjunction with the sound of glass breaking. This call transmuted into a priority domestic violence situation in progress and Officer Dean was dispatched to the scene with lights and siren.

[6] In these types of domestic violence calls, Officer Dean testified that foremost in his mind is the safety of the victim.

[7] Officer Dean testified that other police officers, including Sergeant (Sgt.) Dwyer, Constables Boom and Letourneau, were also en route. Officer Dean recalled that he arrived at the scene within four minutes of receiving the radio dispatch. He noticed that he and Sgt. Dwyer arrived simultaneously at the Genevieve Street address. Officer Dean’s cruiser was parked behind Sgt. Dwyer’s. He testified he did not see Officers Boom or Letourneau at that time.

[8] Upon his arrival, Officer Dean saw an individual outside the residence who was previously known to him as the co-defendant, Mr. Segal. Officer Dean testified that he had an encounter with Mr. Segal and Ms. Krywucky about a year prior to this incident. He testified that he knew, or reasonably suspected, that Mr. Segal had associates in an outlaw biker organization and was involved in the illicit drug business. Officer Dean testified that he had knowledge of both individuals, the Genevieve street address and the adjacent pathway area.

[9] Upon approaching the driveway, Officer Dean was met by Mr. Segal and a conversation followed.[^2] Sgt. Dwyer was also present. According to Officer Dean, Mr. Segal advised them that he had been locked out and had broken a window in order to gain entry. While Mr. Segal was offering an explanation with respect to the incident, Officer Dean’s concern focussed on the safety of the individual inside the house. In recalling the dispatch update about a woman screaming ‘leaving me alone’, in Officer Dean’s opinion, Mr. Segal’s explanation was inconsistent with the information he had received. Officer Dean testified that he did not accept Mr. Segal’s explanation, and he felt Mr. Segal was evasive as to the whereabouts of the female.

[10] During this conversation, Officer Dean testified that he saw someone on the porch near the front door of the house. That individual went abruptly into the house through the front door. Officer Dean asked Mr. Segal if anyone else was there, and Mr. Segal replied ‘it didn’t matter’. Officer Dean testified that when he first arrived at the house, he did not believe that there was anyone on the porch.

[11] Officer Dean had concerns that the female was not in the immediate area and had concerns for her safety. As he had no reliable information, Officer Dean believed that it was prudent and necessary to check for her whereabouts in the house.

[12] Officer Dean left Mr. Segal and Sgt. Dwyer and walked up to the glass storm front door. He could not see anyone in the residence. Officer Dean opened the door and, just prior to crossing the threshold of the residence, he saw a streak of blood on the door, two inches long, which appeared to be fresh. He recalled that Mr. Segal had no visible injuries.

[13] Officer Dean then saw two males in the kitchen area, immediately ahead of him. He asked where the female was and one of them responded that she had left. Although the two males in the kitchen were initially seated, during the exchange they stood up. Officer Dean then saw a third male coming from the bathroom area. None of them seem to know the whereabouts of the female. Officer Dean testified that he was only about eight feet into the residence, which was approximately four feet from the foyer. He maintained that he still had concerns that Ms. Krywucky could be injured or worse.

[14] Officer Dean advised that upon entering the house he detected a strong odour of fresh vegetating marijuana. He was able to recognize the distinct odour from his experience as a former drug investigator. He testified that the drugs were not his primary concern at that time and he decided that he was going to have the house cleared. He explained the difference between “clearing a house” and “searching a house”.

[15] Officer Dean testified that Constable Boom also entered the house and kept an eye on the three men. Officer Dean went back onto the porch and saw Sgt. Dwyer outside with Mr. Segal. He instructed Sgt. Dwyer about what needed to be done and Sgt. Dwyer assisted him. In fact, it was Sgt. Dwyer who went in and cleared the house.

[16] No female was located in the house. Officer Dean obtained a cell phone number and attempted to call Ms. Krywucky, to no avail. Officer Dean testified that neither he nor Sgt. Dwyer did anything inconsistent with the “clearing” of a residence.

[17] Officer Dean was asked about the various police transmissions made with respect to this call which were played during the course of his testimony.

[18] Turning to the issue regarding the September 22, 2010 preliminary inquiry, Officer Dean had been called as a witness by the prosecution. During his testimony, Officer Dean stated that he had retained counsel for an unrelated police services matter. He did not reveal that his counsel was Mr. Glen Donald, who was also counsel for Ms. Krywucky, one of the accused at the preliminary inquiry.

[19] Officer Dean explained that certain questions were posed to him about his unrelated police hearing, including if he had retained counsel, but he was never asked the name of his counsel. He never volunteered to the preliminary hearing justice that his counsel was Mr. Glen Donald, the very same individual who was cross-examining him during the course of the preliminary inquiry. Officer Dean stated, ‘I answered the questions put to me directly. If I had been asked the name of my lawyer, I would have told Mr. Posner”. He testified that he answered honestly to all questions put to him.

[20] Officer Dean testified that he was not trying to conceal the fact that Mr. Donald was his counsel in an unrelated police services matter. Officer Dean acknowledged that Mr. Donald was known to him for many years. Mr. Donald is an experienced and competent counsel and Officer Dean felt that if there was any issue at the preliminary hearing, Mr. Donald would have raised it with the Crown. Officer Dean testified he had no direct dealings with Ms. Krywucky other than being the officer in charge of the case. He did not take a statement from her. He did not expect that Mr. Donald would go easy on him during his testimony at the preliminary hearing.

[21] In cross-examination, Officer Dean testified that he did not have any concerns about any conflict of interest at the preliminary hearing. He admitted that, prior to his appearance in the Superior Court, he was aware of the applicants' motions and he went over the Charter claims, albeit briefly with the federal Crown, Ms. Johnson. He added that he did review the application materials per se, but merely discussed the issues with Crown counsel in a general fashion.

[22] Officer Dean reiterated that he was not concerned about a conflict as he had no direct dealings with Ms. Krywucky. He was asked whether, if he had indeed had direct dealings with Ms. Krywucky, that fact would have changed his opinion about mentioning that his counsel was also counsel for Ms. Krywucky. His response was that he could not speculate.

[23] Mr. Dean acknowledged that he had extensive experience as a police officer. He was a proficient warrant writer, involved in hundreds of search warrants, acted in an undercover capacity, researched and reviewed case law and was now a lawyer practicing in criminal law. He claimed that he was full, frank and fair, and agreed that those attributes were a fundamental requirement with respect to being the affiant for hundreds of search warrants.

[24] Mr. Dean was referred to his current web-site which detailed inter alia his proficiency and experience as a police officer and criminal defence counsel. He maintained that as an officer it was his duty to be upfront with the Crown, and to be fair and candid with Crown counsel. He acknowledged being aware of the concept of a conflict of interest.

[25] Mr. Dean agreed that the various charges before the court are serious. He knew the charges were serious at the time he spoke to and retained Mr. Mr. Donald in March of 2010 and they remained serious in nature when he testified at the preliminary inquiry on September 22, 2010.

[26] Mr. Dean testified that the first time he became aware that Mr. Donald was acting for Ms. Krywucky was when he entered the witness box on September 22, 2010. He described his reaction upon seeing Mr. Donald as neither surprising nor shocking. He did not discuss the case with Mr. Donald at any time prior to or following September 22. He had no opportunity to speak to Mr. Donald on the day of the first preliminary hearing and he did not discuss any trial strategy with Mr. Donald. He did not have the opportunity to speak with Crown counsel prior to his testimony.

[27] He was asked if he knew of any of the potential array of issues that might be canvassed at the preliminary hearing. Officer Dean acknowledged that there could be a range of issues, as with any drug case, including a potential attack on the warrant, Charter arguments arising from the police search of the home, as well as right to counsel issues. He did not know if the September 22, 2010 hearing was a preliminary inquiry or a trial.

[28] Officer Dean agreed that an accused has the right to effective counsel without divided loyalties. When asked how Mr. Donald could attack his credibility and his evidence at the preliminary hearing while being a client, Officer Dean’s response was, “by doing his job”.

[29] When asked if he told anyone about Mr. Donald’s status, Mr. Dean testified that he spoke to Mr. Dykstra right after his evidence was completed at the preliminary inquiry. He testified that he made Mr. Dykstra aware that Mr. Donald was his lawyer and asked if there was an issue. According to Mr. Dean, Mr. Dykstra’s response was he did not want to discuss it at the time. He never made any inquires with Mr. Donald on September 22.

[30] Mr. Dean testified that he again followed up with Mr. Dykstra in an email about one week later. In response to Mr. Dean’s inquiry, Mr. Dykstra simply asked who his counsel was. Apparently, Mr. Dykstra wanted the information in writing.

[31] Mr. Dean was extensively questioned regarding the search and seizure at the residence and the nature of the 911 call. He was asked questions about the police recordings made regarding the call and the various communications between officers and dispatch. He acknowledged that he advised other officers about Mr. Segal’s known associates. He also acknowledged hearing his own voice and made several corrections to the transcript provided to the court.

[32] Mr. Dean emphasized that in his opinion Mr. Segal was not being truthful to him by telling him that there was no one else in the house. He denied overhearing any conversation between Sgt. Dwyer and Mr. Segal. He never asked Mr. Segal how or if the female left the house. He did not call out for Ms. Krywucky upon entering the house. He reaffirmed his belief that the situation was imminent, given that four minutes elapsed from his dispatch to his arrival at the scene.

[33] He was asked about the Information to obtain (“ITO”) and his role as the affiant. He acknowledged that he did not put any information in the ITO with respect to his prior knowledge of Mr. Segal. He added that the information about Mr. Segal was not used to form the basis to enter the residence. He believed he was full, frank and fair with respect to the information he provided to the issuing justice.

[34] The next witness was Constable John Boom. He is a six-year member of the London Police Service. He was on duty on July 1, 2009. He was called to 49 Genevieve Crescent at 2:01 a.m. It was an urgent code one, break and enter and domestic violence situation. He arrived at the scene at 2:03 a.m. Sgt. Dwyer and Officer Dean were already on scene. He noted that both Dean and Dwyer were speaking to an individual, later identified to him as Mr. Segal. He believed that Officer Dean entered the residence first with him along side. Constable Boom did not see any blood on the door of the residence and he did not see any injuries on Mr. Segal. He indicated he that was aware that there was going to be a ‘clearing’ of the house.

[35] Officer Boom testified that he could not recall any odours upon entering the residence. He does not recall if Officer Dean told him that Mr. Segal had outlaw biker connections. When asked if it was Officer Dean who instructed the entry into the residence, he disagreed with that statement and said that Sgt. Dwyer instructed the officers. He vividly recalls Sgt. Dwyer telling him what to do. Officer Boom does not recall Officer Dean asking Mr. Segal who the fellow on the porch was.

[36] Constable Rick Letourneau, a 15-year member of the London Police Service testified. He was in uniform and present at the scene on July 1, 2009. He arrived within one or two minutes of the 2:04 a.m. break and enter call in progress. When he pulled up, Sgt. Dwyer and Officer Dean were standing beside a male in the area engaged in a conversation with this individual later identified as Mr. Segal. Sgt. Dwyer then asked Constable Letourneau to remain outside with Mr. Segal while he, Constables Dean and Boom left the area.

[37] The next witness was Sergeant Stephen Mark Dwyer. Sgt. Dwyer is a 30-year member of the London Police Service. He was on duty in a supervisory capacity on July 1, 2009. At 2:01 a.m. he received information about a break and enter and a domestic call. He arrived at the Genevieve street location on an urgent basis. He parked on the street to the west of the house as there were already police cars in the driveway. He testified that Constable Letourneau arrived at the same time and that Officer Dean arrived a moment or two later.

[38] Sgt. Dwyer testified that, while walking up the driveway, Mr. Segal was alone outside with Officer Letourneau. Sgt. Dwyer spoke to Mr. Segal in the driveway and Mr. Segal made a comment. Sgt. Dwyer observed Officer Dean first in front of the house and then going inside the residence. Sgt. Dwyer eventually entered the house and spoke to Officer Dean and asked if the female was located. Officer Dean said he had not cleared the house and, in considering the nature of the call, Sgt. Dwyer decided that the house would have to be cleared.

[39] Sgt. Dwyer stepped inside the front door and was met by several individuals who had congregated in the foyer. He proceeded to the galley kitchen, dining room, and then to the den, where he observed a safe, a set of digital scales, and drug paraphernalia that was caked with a powdery substance which to him appeared to be cocaine. He also found a small box of 1” x 1” baggies, which appeared to be consistent with drug packaging. He went down the hallway into two bedrooms and into a washroom. He then went downstairs to the basement area. In the basement he observed what appeared to be a marijuana grow operation.

[40] Sgt. Dwyer testified that he was not searching the house for drugs but merely clearing the house looking for the female. He testified that he was in and out in five minutes and he did not locate the female. He claimed that all of his observations of drugs or drug paraphernalia were in plain view. He testified that no one directed him to clear the residence and that he alone made the decision that the residence had to be cleared.

[41] In cross-examination, Sgt. Dwyer indicated that he was not aware that Mr. Segal was a known associate of outlaw bikers or involved in illicit marijuana grow-operations. He stated that he did not see any fresh blood in the house or on the front door. He testified that he had no discussions with Officer Dean at the time he spoke with Mr. Segal in the driveway.

[42] Sgt. Dwyer testified that Mr. Segal was cooperative and polite to all officers and at no time did he feel that Mr. Segal was attempting to mislead him. He testified that he had learned that the female occupant had left and that, if he knew exactly where she was, he would not have gone into the house. However, he testified that he had no independent information and had to clear the residence. He did not call out for the female upon entering the house. He did not hear Officer Dean call out for Ms. Krywucky. He admitted that he did not have permission to enter the residence.

[43] Sgt. Dwyer testified that, upon his entry into the house, he could smell vegetating marijuana. He denied seeing any filtration system in the basement. He testified that he did not go into the furnace room and does not recall the bathroom in the basement. He added that if there was a bathroom, he would have cleared it. He did not know details about the furnace room, bathroom or the area where the washer and dryer was situated.

[44] Mr. Marten Dykstra testified for the Crown. Mr. Dykstra has been counsel for the Public Prosecution Service since April 2010, and is posted to London. He has been a lawyer since October 2002.

[45] At the preliminary hearing, Mr. Dykstra represented the federal Crown and, for a variety of reasons, the September 22, 2010 preliminary hearing was not completed and was adjourned. Just prior to the December 7, 2010 recommencement of the hearing, Mr. Dykstra testified that while reviewing the transcripts he wondered if perhaps Mr. Donald might be counsel for Mr. Dean. He had no indication that this was indeed the case, but had merely considered that possibility.

[46] On December 2, 2010, in the afternoon, some five days prior to the recommencement of the preliminary hearing, Mr. Dykstra sent an inquiry email to Officer Dean. He testified that he had no awareness that Mr. Donald was representing Officer Dean at any time prior to his sending the email. It was not until Mr. Donald approached him coincidentally on December 3, 2010 in the London courthouse, and advised that he received an email from Officer Dean (which was the email from Mr. Dykstra forwarded on), that Mr. Dykstra became aware from Mr. Donald that he was counsel for Officer Dean. As a result of this disclosure, Mr. Dykstra was surprised. He advised Mr. Donald that perhaps he ought to speak with senior counsel. He understood that Mr. Donald did in fact follow-up with his suggestion because later that same day Mr. Dykstra was informed by Mr. Donald that counsel would be getting off the record.

[47] Mr. Dykstra specifically denied Officer Dean approaching him on September 22 and advising him that he was being represented by Mr. Donald. He stated that if Mr. Dean had told him that Mr. Donald represented him, he would have reacted to the revelation in the same manner on September 22 as he did on December 3, 2010.

[48] Mr. Dykstra agreed with defence counsel that Officer Dean was an important witness in the prosecution of Ms. Krywucky and Mr. Segal. With respect to the McNeil-line-of-questioning, Mr. Dykstra testified that he was not concerned about it at the time. He admitted that the credibility of Officer Dean was very important, however, in his view, none of the McNeil inquiries with respect to Officer Dean triggered any credibility issues.

[49] Mr. Dykstra testified that he clearly believed that there was a conflict with Mr. Donald being retained by Mr. Dean and cross-examining him, as well as representing Ms. Krywucky at the preliminary hearing. According to Mr. Dykstra, he recalled that after speaking to Mr. Donald, Mr. Donald did the right thing and got off the record. Mr. Dykstra also advised that he called Mr. Posner’s office once he was made aware of the conflict.

[50] Certain admissions and agreements of fact were entered by the parties.

[51] The applicants called Constable Jeff Ordronneau, a 12-year member of the London Police Service. In July 2009, he was a Detective Constable with the guns and drugs unit of the London Police Service. He was involved in the execution of the search warrant at 47 Genevieve on July 1, 2009, including the taking of photographs at the scene. He testified that he did not recall any visible blood at the residence or in the doorway area. He took photographs of the grow operation and seized certain items. He also noticed a broken window at the rear of the property that had been smashed out.

[52] Officer Ordronneau testified that, in his experience, a charcoal filter is frequently used in a grow operation to mask the smell of the vegetating marijuana. Officer Ordronneau could not recall if he could smell any marijuana upon his entry and it was only after he descended down the stairs to the basement that he could confirm smelling vegetating marijuana. When asked whether, while entering the house, he could smell marijuana, the officer testified he could not recall if he could smell it at either door. Officer Ordronneau clarified that he had hay fever in July and that may have affected him.

[53] On consent, an email dated January 7, 2013 from Mr. Donald was entered into evidence.

Section 7

Submissions of the parties

[54] On behalf of both applicants, Mr. Posner argues that there is a s. 7 Charter breach and an abuse of process. Mr. Posner submits that Officer Dean did not bring to the Crown’s attention the real conflict of interest of having his own counsel act for Ms. Krywucky at the preliminary inquiry. Mr. Posner submits that Mr. Dykstra was correct in that there was a problem with Mr. Donald representing Ms. Krywucky and, at the same time, cross-examining his own client, Mr. Dean, the principal officer in the case.

[55] Mr. Posner submits that there is a fundamental breach of the right of disclosure and Officer Dean breached his obligations and duties at a foundational level as a police officer. Mr. Dean, by his own admission, agreed that police officers must be upfront with the Crown, and this was not the case here in addressing the appearance of a conflict of interest.

[56] Mr. Posner acknowledges that while there is no redress against Mr. Donald through this application, there is a remedy under s. 7 for the deliberate inaction or omission by Officer Dean. Mr. Posner argues that in this case the situation is exacerbated in that Officer Dean, (a 20 year veteran and seasoned police officer, an accomplished warrant writer and law student at that time), ought to have adverted to the issue and should have raised it to the Crown at the first opportunity. Even without Mr. Dean’s enhanced education and experience, this situation would have alerted any police officer to have at least sought direction from the Crown. It is submitted that Officer Dean’s failure to disclose, and thus the Crown’s concurrent non-disclosure, was a serious breach of the Crown’s obligations,.

[57] In assessing the evidence, Mr. Posner submits that Mr. Dean was inconsistent, evasive, and, at times, obfuscating in giving his evidence. Mr. Posner submits that this court ought to be concerned about Officer Dean’s testimony to the effect, that after the preliminary hearing, he approached Mr. Dykstra and divulged that Mr. Donald was his lawyer and Mr. Dykstra shut him down. This was a shocking assertion and was contrary to the information known to all parties leading up to the time of this application. Officer Dean further exacerbated his evidence by stating that he had a clear recollection of the conversation. Mr. Posner submits that these assertions are fiction and Mr. Dean misled the court.

[58] Mr. Posner submits that there is a constitutional right to have an effective lawyer who has not fallen under divided loyalties. As Ms. Krywucky’s rights were affected by her former counsel in conjunction with a state actor, there should be significant consequences.

[59] Mr. Posner acknowledges that the relief sought, a stay of proceedings, can only be based on circumstances arising in the clearest of cases.

[60] Mr. Bailey on behalf of the Public Prosecution Service submits that there was no conduct by the police which could justify a finding that an abuse of process had occurred; that Constable Dean testified truthfully at preliminary inquiry; answered all questions put to him in a professional manner; was unaware of any conflict of interest which Mr. Donald may have had; and did not “conceal” the fact that Mr. Donald was his counsel on an unrelated matter. Constable Dean had no conflict of interest and did not perceive any conflict of interest. In any event, Mr. Bailey submits that Officer Dean had no duty to report any perception of a possible conflict of interest on the part of the defence counsel, Mr. Donald.

[61] Mr. Bailey argues that there is no evidence that Constable Dean somehow benefitted by not being vigorously cross-examined by Mr. Donald during the preliminary hearing. With respect to Mr. Posner’s remark – which categorizes Crown counsel as Officer Dean’s ally – Mr. Bailey submits that it is entirely misguided and fails to take account of the Applicant’s own admission that Crown counsel had no knowledge of Mr. Donald’s relationship with Officer Dean.

[62] Mr. Bailey submits that Mr. Donald had an ethical duty to disclose that he had a conflict of interest. Secondarily, and building upon the alleged unethical behaviour of Mr. Donald and his failure to self report when the occasion called for it, it was not up to Officer Dean to have recognized Mr. Donald’s alleged unethical conduct and have communicated it to the court. Based on this premise, Mr. Bailey argues that it was Mr. Donald and not Officer Dean who subverted justice, if it was indeed subverted. Mr. Bailey submits that there is no evidence that Constable Dean should have concluded that there was a conflict of interest and that he had a duty to report it.

[63] Mr. Bailey submits that it is Mr. Donald who acted inappropriately and not Officer Dean, thus any consequences arising from Mr. Donald’s improper conduct should not fall on the Crown. Ms. Krywucky’s proper recourse is to the Law Society, to which she has already addressed her complaint.

[64] Mr. Bailey argues that even if there were some blameworthy conduct ascribed to Officer Dean’s actions, and by extension to the Crown, this situation does not warrant a stay of proceedings as it does not arise in the clearest of cases.

Analysis

[65] In cross-examination, Mr. Dean was thoroughly questioned by Mr. Posner with respect to his knowledge related to the conflict of interest issue. Mr. Dean reaffirmed on more than one occasion that on September 22 he spoke to Mr. Dykstra and asked him if there was an issue with respect to Mr. Donald, notwithstanding that he testified that he did not feel that there was any concern. He testified that a week or several weeks after the preliminary hearing, he received an email from Mr. Dykstra. Officer Dean took it as a confirmation of the identity of his lawyer. In fact, this email was dated December 2, 2010.

[66] Mr. Dean was adamant that Mr. Dykstra shut him down after he revealed that his counsel, Mr. Donald, was the same as counsel for Ms. Krywucky at the preliminary hearing. His clear recollection is that that conversation took place outside the doors of the courtroom. Mr. Dean was challenged on inconsistencies between his testimony at the preliminary hearing,[^3] and his evidence before this court. In the transcript Mr. Dean made no mention about a meeting with Mr. Dykstra and specifically denied speaking with Mr. Dykstra on September 22, 2010.

[67] In re-examination, Crown counsel attempted to rehabilitate Mr. Dean. It came to a point where Mr. Dean was evasive in responding to Crown counsel. At times, the Crown asked questions in re-examination to which counsel properly objected. I got the sense that Crown counsel was exasperated by his own witness, and resorted to posing questions in a suggestive manner in order to salvage some of this witness’ credibility or reduce the impact of the various inconsistencies. Crown counsel failed.

[68] Mr. Dean reiterated that he told the truth on September 6, 2011 and is telling the truth in court before me. However, I view with scepticism all of Mr. Dean’s recollection of the events. For example, with respect to his alleged disclosure to the conflict to Mr. Dykstra on September 22, at one point in re-examination, Mr. Dean testified that “[it] may not have occurred after the preliminary hearing”, “not necessarily on September 22”. Throughout his re-examination, Mr. Dean was still confused and non-responsive with respect to when or if he actually told Mr. Dykstra about Mr. Donald on September 22 or on any other date. He was vacillating with respect to the timing of the email from Mr. Dykstra. By the end of the re-examination, Mr. Dean conceded that his evidence at the preliminary hearing was correct and that, in effect, what he testified to before me about what he claimed he told Mr. Dykstra on September 22 was incorrect.

[69] It is clear that Mr. Dean was effectively impeached by counsel. His demeanour demonstrated to me that he was very uncomfortable and his responses in cross-examination were internally inconsistent. I was left with a sense that his testimony did not make sense, and that he had switched his story several times. Not only had he been evasive with defence counsel, but also with the Crown. This suggests to me that he was trying to cover up for something that had occurred. I do not find Mr. Dean’s evidence to be credible or trustworthy.

[70] I contrast Mr. Dean’s evidence to that of Mr. Dykstra. When Mr. Dykstra found out, on December 3, that Mr. Donald was counsel for Mr. Dean, Mr. Dykstra exclaimed, in the most candid manner, ‘dude, you have a problem!’. Clearly, this suggests that Mr. Dykstra was surprised and indeed concerned upon learning this information. I am satisfied that December 3, 2010 was the first time that Mr. Dykstra became aware of the issue.

[71] Mr. Posner refers to R. v. Jewitt[^4] in support of his position, referring to the concept of a deliberate concealment of a conflict of interest and the officer’s deliberate falsehoods at the preliminary hearing and before me. The thrust of the applicant’s position is that Constable Dean’s concealment of the conflict of interest and its aftermath constituted an abuse of process warranting a stay of proceedings under s. 24(1) of the Charter.

[72] An evaluation of this position requires scrutiny of the nature and gravity of Officer Dean’s conduct, as well as its impact on the applicants and the integrity of the justice system. This must begin with an appreciation of Officer Dean’s role in the overall context of the investigation and the prosecution.

[73] I am satisfied that Officer Dean is the central witness for the prosecution’s case. It was Officer Dean who made the decision to enter the applicants’ home without a warrant. According to Officer Dean, the claim of exigent circumstances upon which the warrantless entry was based was his alone, (although that decision is disputed by Sgt. Dwyer and other police witnesses). Officer Dean was the affiant of the search warrant for the applicants’ home that was obtained as a result of the police observations made during the clearing or search of the residence.

[74] It is clear that Mr. Donald’s impugned conduct is not before me and he is not a party to these proceedings. I have not heard any evidence or submissions on behalf of Mr. Donald. By virtue of his professional obligations, I am perplexed that Mr. Donald did not disclose the conflict in a timely manner. I understand that Mr. Donald was the subject of a proceeding under the auspicious of the Law Society of Upper Canada. I agree with counsel that there is no remedy available to the applicants in these proceedings resulting from Mr. Donald’s conduct.

[75] However, Officer Dean is another matter. As a police officer, he was under an obligation to uphold the values of the justice system. As Hill J. wrote in R. v. Cook, 2010 ONSC 5016 at para. 29:

Police officers, as officials discharging public duties, occupy a special position of trust in the community…” [A] heavy trust and responsibility is placed in the hands of those holding public office or employ” …Individuals working in the justice system “owe a duty to the public to uphold the values of that system”… with the administration of justice “depend[ant] on the fidelity and honesty of the police.” (citations omitted)

[76] I agree with Mr. Posner that, had Mr. Donald disclosed the conflict to Ms. Krywucky on the morning of the preliminary inquiry, she would have promptly discharged him. The question remains why did Officer Dean not report this conflict matter to Mr. Dykstra in a timely manner? Mr. Posner argues that he was protecting his own interests or those of Mr. Donald. While I do not have evidence in support of that proposition, it is one inference that can be drawn.

[77] In response, Mr. Bailey maintains that Mr. Dean had no such obligation to disclose. With respect, I must disagree. Even on Mr. Dean’s own evidence it is clear to me that he was wrestling with this dilemma. For example, he claimed that he did not see any conflict issue arising, yet initially claimed that he informed Mr. Dykstra right after his testimony was completed on September 22, 2010. This suggests that at the very minimum he adverted to this issue.

[78] I find that Mr. Dean was aware that there were viable Charter and legal issues arising from the police activity at the Genevieve home arising from the events of July 1, 2009. He also knew that Mr. Posner might properly mount an attack on his conduct in entering the applicants’ home without a warrant. Mr. Posner argues that Mr. Dean could count on the fact that Mr. Donald would not attack his integrity or credibility and that Mr. Donald’s cross-examination of Officer Dean suggested that the officer had conducted himself professionally and appropriately. I would not go so far as to say that Mr. Dean had two allies in the courtroom – and I find that counsel may be overstating the case. However, it is clear to me that the conflict or the appearance of conflict was readily apparent and negatively affected Ms. Krywucky’s rights.

[79] I agree with Mr. Posner that Ms. Krywucky was entitled to competent and effective counsel. What she received instead was a lawyer with divided loyalties. Mr. Dean ought to have known that remaining quiet about the conflict of interest meant that the interests of Ms. Krywucky and the justice system were being placed in some jeopardy.

[80] The question remains whether this situation gives rise to a breach of s. 7 of the Charter.

[81] Mr. Posner submits that Mr. Dean’s misconduct caused seriously prejudice to the administration of justice. His silence at the preliminary inquiry was tantamount to a lie by omission and his testimony at the second preliminary inquiry that he did not believe there was any conflict of interest defied credulity.

[82] At no time do I find any demonstration of misconduct on the part of the federal prosecutor. Quite the contrary, it is my view that throughout the entirety of the proceedings Mr. Dykstra acted entirely appropriately and conducted himself in the highest regard of the profession.

[83] However, I am satisfied that Mr. Dean breached his disclosure and professional obligations to the Crown and to the court, and further compounded the matter by providing questionable testimony with respect to the events following his testimony on September 22, 2010. At its highest, this case involves either misleading testimony or a wanton omission by a police officer at the relevant time to advise Crown counsel about a real conflict of interest of counsel.

[84] While I am in no fashion condoning Officer Dean’s conduct, which must be visited upon the Crown, I would not go as far as the applicant to suggest that Mr. Dean’s perfidy and the related harm has caused irreparable prejudice to the administration of justice.

[85] I am persuaded that Mr. Dean ought to have considered this situation to the extent that his professional obligations warranted disclosure to the Crown. The duty of the police to disclose to the Crown the fruits of the investigation is now well recognized in the appellate jurisprudence.[^5] In this case, I would add that this obligation extends to the disclosure of a potential conflict of interest of counsel, specifically in a situation where the officer is being cross-examined by his own counsel as a police witness in any criminal proceeding.[^6]

[86] Based on the well-established principles of disclosure and the police officer’s disregard of this fundamental obligation, I find that Ms. Krywucky has established that her rights under s. 7 of the Charter have been breached.

[87] As such, I have been asked to remedy this breach by imposing a stay of proceedings pursuant to s. 24(1) of the Charter. The question remains, having found a breach of s. 7 of the Charter, is the appropriate remedy a stay of proceedings or is some other relief warranted in the circumstances of this case?

[88] It is clear that any remedy for a Charter breach must be appropriate and just. In arriving at an efficacious remedy, I must balance the rights of society with the Applicant’s individual rights. I must take into account the objective of the remedy and whether or not the disposition being proposed remedies the damage done to the Charter protected right. In other words, the remedy must not be disproportionate to the alleged wrong.

[89] The test for granting a stay of proceedings by reason of an abuse of process is that set out in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1 at para. 82:

[A] stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

[90] One recent pronouncement on the issue of abuse of process is the case of R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, a decision of the Supreme Court. In her reasons for judgment, Charron J. succinctly reviewed the development of the law since R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 concerning abuse of process and affirmed the following principles:

1. Although abuse of process is now treated as a Charter remedy, and as such carries with it the balance of probabilities burden, the court must still determine the appropriate remedy under s. 24(1) of the Charter and the “clearest of cases” burden still applies to justify the remedy of a judicial stay of proceedings.

2. The test for an abuse of process is whether compelling the accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency or where the proceedings are oppressive or vexatious.

3. Prosecutorial misconduct can give rise to an abuse of process but is not essential to establish that an abuse has occurred.

4. In cases where there is no prosecutorial misconduct, prejudice to the accused’s interests, although relevant, is not determinative.

5. If there is a finding of abuse of process, the prosecution is set aside not on the merits but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. There must be an essential balancing of interests by the court such that the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases.

6. A stay of proceedings will only be appropriate when the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome and no other remedy is reasonably capable of removing that prejudice.

[91] There is no dispute between the parties that a stay of proceedings for abusive prosecutorial or police conduct has been imposed by various courts, albeit in rare circumstances. As L’Heureux-Dube observed in O’Connor, at para. 73:

In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

[92] In discussing the applicability of a stay of proceedings in cases where there is an abuse of process established on the evidence, I refer to one of the leading decisions of the Supreme Court, R. v. Regan, at paras. 53-57:

A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: "that ultimate remedy"….It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: "the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the 'clearest of cases’.

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice

…[T]he first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system. Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: "[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings". When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive".

Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay.

Finally, however, this court in Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, instructed that there may still be cases where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. In such cases, a third criterion is considered. This is the stage where a traditional balancing of interests is done: "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits". In these cases, "an egregious act of misconduct could [never] be overtaken by some passing public concern [although] ... a compelling societal interest in having a full hearing could tip the scales in favour of proceeding". (citations omitted)

[93] In advancing his position for a stay, several cases were provided by Mr. Posner for my consideration including R. v. Salmon, 2011 ONSC 3654, 85 C.R. (6th) 397. In that case, Gray J. ordered a stay of proceedings where police provided grossly misleading testimony and fabricated evidence. Justice Gray held, at paras. 191-192:

It would be difficult to say that Mr. Salmon’s right to a fair trial has been affected here. Indeed, in some ways, his case is improved as a result of the police conduct. The credibility of a number of the police witnesses is severely impacted adversely, if not in tatters.

In cases that fall under the residual category, as this one does, the interest is not in protecting an accused’s fair trial rights, rather it is in protecting the integrity of the justice system. It is not so much that Mr. Salmon has been shabbily or badly treated. Rather, the state actors, the police, have been prepared to fabricate a case, in part, in order to secure a conviction.

[94] Later, the court held, at para. 193:

It would be difficult to conceive of conduct that would more distinctly shock the conscience of the community than the fabrication of evidence by the police. If it occurs, I cannot conceive of any remedy short of a stay of proceedings that would suffice.

[95] Justice Gray’s remarks are instructive. However, with respect, I do not reach the same conclusion with respect to the appropriate remedy based on the facts in the case before me.

[96] Officer Dean was no ordinary witness for the prosecution as he was, at all relevant times, a police officer. Generally, the jurisprudence directs that a police officer’s actions resulting in a Charter breach must be visited upon the Crown. I see no difference in this case whether it is the police conduct of an investigation or testimony as a witness in a proceeding.

[97] This case gives rise to a unique and distinct species of police misconduct that warrants consideration of the appropriate intervention or remedy by this court.

[98] It is trite law that the granting of a stay of proceedings should be reserved for the unusual case in which the infringement of an accused’s Charter rights has clearly prejudiced him or her in presenting his or her defence or in obtaining a fair hearing. As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system. However, there are situations where an accused may not be afforded the remedy of a stay even though his or her Charter application may have been entirely successful.

[99] In other words, the jurisprudence provides a clear direction to trial judges; a stay of proceedings is reserved for ‘those clearest of cases’. In my view, this is not one of those cases. Mr. Dean is a witness who was, and will continue to be, seriously challenged during cross-examination should the matter continue on to trial. The substantive evidence in this case including the events surrounding the search and the contents of the ITO has not been altered or fabricated by Officer’s Dean’s conduct at the preliminary hearing. No doubt, the ultimate credibility and reliability of this principal witness will be the subject of argument. However, Officer Dean’s conduct or testimony in relation to the conflict of counsel does not touch upon the substantive issues in this case nor does it come close to the very dire situation that faced Gray J. in Salmon, namely the fabrication of evidence and grossly misleading testimony. It cannot be said in this case that Officer Dean’s evidence or testimony is an affront to decency and fair play.

[100] Aside from protracting the proceedings, there was no suggestion that the applicants are not able to challenge the Crown’s case. I do not find that there was a systemic disregard for Ms. Krywucky’s rights. Quite the contrary, Crown counsel acted entirely appropriately in this case. Any challenge to the police officer’s actions will be addressed through all means available to counsel at trial. I am persuaded that the prejudice caused by the actions of the police will not be perpetuated through the conduct of the trial, or further tarnish the justice system.

[101] A stay of proceedings does not merely redress a past wrong. It aims to prevent the continuation or condonnation of a wrong that, if left alone, will continue to negatively impact on the administration of justice and the community as a whole.

[102] On balance, I do not find that the conduct of the police or the Crown would make the trial unfair or further tarnish the justice system. The applicants have not satisfied me on their onus that the administration of justice continues to suffer prejudice to the extent requiring the cessation of the proceedings. I am not satisfied that the applicants have demonstrated that they would be severely prejudiced by Officer Dean’s actions and that the administration of justice would fall into disrepute, warranting the drastic remedy sought. Therefore, the application for a stay of proceedings pursuant to s.24(1) of the Charter is denied.

[103] While I have not granted a stay pursuant to s. 24(1) of the Charter, that does not end my inquiry. In my view, the issues giving rise to the complaint under s. 7 play a role in my assessment of the s. 11(b) delay application, which I will now address.

Section 11(b)

[104] The applicants were arrested on July 1, 2009. Ms. Krywucky was released on an undertaking and Mr. Segal was released on a recognizance on July 3, 2009. Charges were laid on July 2, 2009 and the matter was adjourned to July 31, 2009. The Crown provided initial disclosure on July 31, 2009 and August 21, 2009. On October 2, 2009, Mr. Posner replaced Mr. Hardy as counsel of record for Mr. Segal. The matter was then adjourned to October 16, 2009 in order for counsel to review the disclosure.

[105] On October 8 and 9, 2009, counsel for Mr. Segal requested missing police notes, a record of the 911 call related to the incident, and recordings of the interviews of the two accused and the three civilian witnesses.

[106] The applicants continued to request this disclosure on the next five court appearances: namely, October 16, 2009, November 6, 2009; November 20, 2009; December 11, 2009; and January 15, 2010. On that last date, the applicants received all outstanding disclosure and their matter was adjourned to February 19, 2010 in order to conduct a resolution meeting and a judicial pre-trial.

[107] The matter was then adjourned to March 5, 2010 to set a date for a preliminary hearing, and then put over again to March 19, 2010, since counsel for Ms. Krywucky was unable to set a date on March 5. A one-day preliminary hearing was set for September 22, 2010.

[108] The preliminary inquiry did not conclude on September 22, 2010, and was adjourned to December 7, 2010. On that day, Mr. Donald brought an application to be removed from the record. The accompanying affidavit, sworn by his administrative assistant, referred to a “conflict that is subject to solicitor and client privilege”, which required Mr. Donald to step down. Not contained within those materials was the fact that Mr. Donald was counsel for Officer Dean.

[109] On December 7, 2010, the preliminary hearing could not continue because Mr. Donald had been removed from the record and Ms. Krywucky was required to retain new counsel. The matter was adjourned to December 17, 2010 in order to set a date for the continuation of the preliminary inquiry.

[110] On December 17, the preliminary hearing was set to continue on May 18, 2011. On the scheduled return date, Ms. Krywucky wished to proceed on her own without counsel. Justice Skowronski heard submissions from the Crown and Mr. Segal’s counsel regarding the impact of the conflict of interest on the proceedings. After a discussion with Crown counsel and defence counsel in chambers, Skowronski J. decided that it would be unfair for Ms. Krywucky to cross-examine Officer Dean on her own. Justice Skowronski then disqualified himself from hearing any further evidence at the preliminary hearing, and ordered that a new preliminary hearing be scheduled. In adjourning the proceedings to June 3, 2010, Skowronski J. stated:

So the first order of business is – and I know you’re both intent on proceeding as quickly as possible because this matter’s gone on for some time, but it would be totally unfair for this young lady [Ms. Krywucky] to proceed on her own as a lawyer. She’s not a lawyer and there are issues here that are bigger than her experience would allow her to cross-examine on.

So having said that, I’m not going to proceed today and frankly, I’m going to disqualify myself from hearing this. What I’ve heard so far from Crown counsel and defence on the record this morning is troubling, and the fact that there was not disclosed by the witness – and in fairness, was not asked but still he was before the court with, at that point as I understand, what I’ve been told, his lawyer representing the co-accused, meaning Officer Dean’s lawyer being Mr. Donald, who represented him at a hearing in October, some weeks after we had our preliminary inquiry on September 22nd. If nothing else, just the optics of that, just the way that looks is bad, just so you know.

…We’ll have to give Ms. Krywucky time to get a lawyer…so that’ll take some time...We should say on the record, 11(b) is obviously not being waived by the defence in this case.

[111] Ms. Krywucky responded to Skowronski J.’s comments.

Ms. Krywucky: …this is just – it’s terrible, people shouldn’t be treated this way…No one should be treated this way, especially coming from Officer Dean and coming from Glen Donald, they all know how everything works… and to neglect to tell me or any of us what they were doing is wrong. They full well knew what they were doing when they were doing it… and it’s caused a lot of people damage. And now my life has been put on hold for another year. How long is this going to take? It’s been two years.

The Court: I understand.

Ms. Krywucky: And his as well. You know, it’s our lives together… you know we’re – and I’m tired, it should be done, but I appreciate your time.

[112] Ms. Krywucky was unable to retain new counsel by June 3, 2011, so the preliminary hearing was adjourned to September 6, 2011 in front of Ebbs J. In the interim, Mr. Moffat assumed carriage of the Crown’s case.

[113] On August 12, 2011 Mr. Posner sent a letter to Mr. Moffat of the Public Prosecution Service advising, inter alia “that the defence would seek to call Mr. Donald and Mr. Dykstra as witnesses at the preliminary inquiry. Please let me know if you are able to make them available or whether I should place them under subpoena”.

[114] Having not received a reply, a follow-up letter was sent on August 30, 2011 from Mr. Posner to the Public Prosecution Service. Ms. Johnson, on behalf of the federal Crown, replied on August 31, 2011. In her letter, she indicated that Mr. Dykstra would not be made available as a witness and that the Crown would seek to quash any subpoena compelling his attendance.

[115] After reviewing Ms. Johnson’s letter, Mr. Posner subpoenaed only Mr. Donald, and did so on September 2, 2012, two days after Ms. Johnson’s response. Upon being served, Mr. Donald filed a motion to quash his subpoena in the Superior Court and he was not called to testify on September 6 due to the outstanding motion. After extensive submissions by all parties to the court, the preliminary inquiry was adjourned.

[116] On October 19, 2011, counsel for Mr. Donald formally filed a motion to quash the subpoena in the Superior Court of Justice. The matter was spoken to on October 28, 2011 in the Ontario Court of Justice. It was agreed that the November 18, 2011 continuation date for the preliminary hearing could not proceed until the motion to quash had been decided. On November 8, 2011, the motion proceeded before Gorman J., but it did not conclude. The court directed counsel for Mr. Segal to secure a transcript of the proceedings before the justice of the peace who issued the subpoena for Mr. Donald. As a result, the preliminary hearing was adjourned to January 13, 2012.

[117] On January 13, 2012, the preliminary hearing did not proceed because the motion to quash had not yet been decided. The preliminary inquiry date was adjourned to March 28, 2012. This continuation date was later adjourned to April 19, 2012, yet in the interim, Mr. Donald had agreed to attend and answer questions at an examination for discovery. He was deposed on April 13, 2012.

[118] Having finally secured the evidence of Mr. Donald, the applicants consented to their committal for trial on April 19, 2012. During these proceedings Ebbs J. chose to comment on his own availability in this matter. In responding to counsel’s comment about getting the matter set for trial as soon as possible, His Honour stated: “Quite a history to it. A lot of it is attributable to my own precarious circumstances but I apologize to those, Mr. Segal and – have a real interest in things other than my health, so thank you for your patience”.

[119] The matter was put over to May 15, 2012 in the Superior Court assignment court. On that day, a judicial pre-trial was set for June 19, 2012 and the matter was adjourned to the July 10 assignment court. On July 10, 2012, a trial date was set for three to four days, starting on January 14, 2013, and pre-trial motions were scheduled for five days starting on September 17, 2012.

[120] On August 28, 2012 a request for an adjournment was filed by the applicants. The matter was addressed at the September 11, 2012 assignment court. Due to the unavailability of transcripts, and inadequate time for the Crown to reply to the applications, the dates for the September 2012 pre-trial motions were subsequently adjourned to December 31, 2012 and the trial dates were revised to commence on March 11, 2013.

Legal Principles

[121] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Section 11(b) is designed to protect the rights of accused persons and also the interest of society in the fair and expeditious resolution of criminal proceedings.

[122] In R .v Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771, Sopinka J. held that the primary purpose of s. 11(b) of the Charter is to protect three rights:

1. the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings;

2. the right to liberty, which is protected by seeking to minimize exposure to restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and

3. the right to a fair trial.

[123] It is trite law that the burden of proof is on the defendant to establish that he or she has not been tried within a reasonable time.[^7]

[124] In determining whether there has been a breach of s. 11(b) and whether the period of delay is unreasonable, the court must consider:

a) the length of the delay;

b) whether there has been any waiver of the time periods by the accused;

c) the reasons for the delay including:

i. The inherent time requirements of the case;

ii. The actions of the accused;

iii. The actions of the Crown;

iv. Limits on institutional resources;

v. Any other reasons for the delay; and

d) prejudice to the accused.[^8]

[125] Once the four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests s. 11(b) seeks to protect, the explanation for the delay, and the prejudice to the accused.

[126] Both counsel acknowledge and adopt the principles as outlined by Code J. in the case of R. v. Lahiry et al (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.). I adopt Code J.’s very comprehensive analysis and review of the legal principles in cases involving undue delay. As Code J. stated at paras. 5-8:

The first factor, concerning the length of overall delay, is simply a mechanism for weeding out frivolous applications. It is referred to as “the triggering mechanism or threshold determination of the excessiveness of the delay". It is only necessary to go on and consider the other three factors if the overall period of delay "is of sufficient length to raise an issue as to its reasonableness". See: R. v. Askov, at p. 466, R. v. Morin, at p. 14.

The second factor, waiver of time periods, can be either express or implied but it "must be clear and unequivocal" and made with “full knowledge of the rights the procedure was enacted to protect”. When counsel expressly states, on the record, that s. 11(b) is waived for the period of an adjournment, there is little difficulty in applying this factor. However, a waiver can also be implied, for example, from consent to a period of delay where “a choice has been made between available options” and “the actions of the accused amounted to an agreement to the delay” rather than “mere acquiescence in the inevitable”. Once a waiver has been found, that period of delay is simply removed from the s. 11(b) analysis and the overall delay is shortened: see R. v. Askov, at pp. 481-2 and 494-5; R. v. Morin, at pp. 13-15.

The third factor, reasons for delay, can be the most important and also the most difficult of the four factors in some cases. It does not involve findings of fault, as there can be good or necessary reasons for delay. This factor simply requires an objective analysis of each period of delay, in order to determine its cause. The five traditional causes are: the inherent time requirements of the case; any actions of the defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes, such as judicial delays. Careful analysis of the transcripts of each date where the proceedings were delayed is critically important to this factor. Having objectively determined the cause of each period of delay, based on the transcripts and any other relevant evidence, this factor then assigns a weight to that period. Some delays are said to "weigh against the Crown", some delays are said to "weigh against the defence", and some delays are said to be "neutral". Needless to say, delays caused by the accused's own actions "will justify" an otherwise unreasonable period of delay because the accused invariably seeks some benefit from such delays, such as additional time to prepare, to retain counsel, to bring some collateral proceedings, or to try to resolve the case. On the other hand, delays caused by the Crown or by inadequate resources "cannot be relied upon ... to explain away delay that is otherwise unreasonable". Finally, delay due to the inherent requirements of the case "is neutral and does not count against the Crown or the accused". See: R. v. Askov, at pp. 477-481 and 483; R. v. Morin, at pp. 16-23; R. v. MacDougall (1998), 1998 CanLII 763 (SCC), 128 C.C.C. (3d) 483 at p. 500 (S.C.C.).

The fourth factor is prejudice to those interests of the accused that s. 11(b) seeks to protect, namely, liberty, security of the person, and fair trial. Prejudice to one or more of these interests can be inferred, without extrinsic evidence, from "a very long and unreasonable delay", in other words, from delay that is "substantially longer than can be justified on any acceptable basis". In a case where the period of unjustified delay is "closer to the line", the accused may lead evidence of actual prejudice to one or more of the protected interests, in order to show "that there has been unusual prejudice by reason of special circumstances". See: R. v. Askov, at pp. 474 and 482-4; R. v. Morin, at 23-4; R. v. Smith, at p. 111.

[127] One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights to security of the person, liberty and a fair trial. An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights. It is the Crown’s duty to bring an accused to trial in a timely manner.

[128] After this inquiry takes place, the court must undertake a balancing of the protected interests. No one factor is determinative and the court must balance the interests the provision is designed to protect against the factors that led to the delay. Whether there has been an unreasonable delay under s. 11(b) is not merely a function of assessing the passage of time. There is no mathematical formula applicable to all cases. The availability of a remedy will depend on the circumstances of each case.

[129] I note the very eloquent comments of Cromwell J. in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18:

The legal framework for the appeal was set out by the court in Morin, at pp. 786-89. 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. 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, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

[130] As the Ontario Court of Appeal held in R. v. Tran (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 48:

Judges should be cautious about engaging in a minute analysis of the normal vicissitudes of a trial for the purpose of allocating delay to the Crown or to the defence on s. 11(b) Charter applications - for example, the need to pause to consider unforeseen developments during the trial, the customary requirement to juggle the line-up and availability of witnesses, insignificant administrative glitches or early adjournments. Except in rare cases where unreasonable delay arising from such issues can readily be attributed to one side or the other or to the court system, I would think that delays arising from these sorts of factors during the normal evolution of a trial would be part of the inherent time requirements of the case.

Position of the parties

[131] In order to effectively analyze the history of the proceedings, Mr. Posner submits that there are nine distinct periods that this court ought to examine in the circumstances of this case.

[132] Mr. Posner argues that the applicants’ s. 11(b) rights have been breached as there is 20 months of Crown and 14 months of institutional delay for a total of 34 months.

[133] In support of his position, Mr. Posner submits that much of the delay resulted from Mr. Dean’s conduct and the subsequent delay arising from Ms. Krywucky having to change counsel coupled with Mr. Donald’s application to quash the subpoena. Mr. Posner submits that it was incumbent on applicant’s counsel to investigate the scope of the apparent abuse of process as a result of discovering the conflict of interest of counsel. For example, had Mr. Donald divulged confidential information received from Ms. Krywucky? Was the Crown aware of the conflict of interest or wilfully blind to it? What was Mr. Dean’s role in dealing with Mr. Donald? Was it limited only to matters touching upon the unrelated police hearing? It is submitted that only Messrs. Donald, Dean and Dykstra had knowledge of these matters. Mr. Posner argues that it was appropriate for the defence to explore this area. However, this resulted in prolonging the proceedings and the applicants neither condoned nor supported the delay in securing Mr. Donald’s evidence

[134] Mr. Bailey submits that any delay in this case falls under the Morin guidelines and he disagrees with the applicant’s assertions or quantifications of institutional or Crown delay.

[135] Mr. Bailey submits that the lion’s share of any delay was primarily due to the actions of Mr. Donald and secondarily due to the lateness of defence counsel in issuing a subpoena for Mr. Donald. Mr. Bailey argues that there was no unreasonable delay because the majority of the delay in this case was attributable to the actions of former defence counsel, and to the failure of defence counsel to subpoena Mr. Donald in a timely manner.

[136] Mr. Bailey also submits that it was entirely foreseeable that complications would arise when defence counsel are subpoenaed. Complications arise due to solicitor client privilege and those issues require consultation, interlocutory applications and, on occasion, the involvement of the Law Society. Such complications cannot be addressed when a subpoena for defence counsel is sought a scant four days prior to the date scheduled for the testimony of that counsel.

[137] The result of not dealing with the issuance of a subpoena to Mr. Donald in a timely way was that the preliminary inquiry was not completed within the time allotted in September of 2011, and was not completed until April 19, 2012. All other delays were not due to any state conduct or institutional factors. Mr. Bailey submits that no violation of the applicants’ rights under s. 11(b) of the Charter occurred.

Analysis

[138] It is now well known that the framework for s. 11(b) motions requires the court to analyze four distinct factors: the overall length of delay from the laying of charges until the trial concludes; waiver of any individual time periods; the reasons for the various periods of delay; and prejudice to the particular interests of the accused protected by s. 11(b).

[139] Institutional delay is the period of time that commences when parties are ready for trial but the system cannot accommodate them. The impact of institutional delay on the reasonableness of the delay as a whole must be assessed in light of the government’s constitutional obligation to allocate sufficient resources to prevent unreasonable delay. A guideline with respect to institutional delay in the Provincial Court is in the range of 8 to 10 months and an additional period of 6 to 8 months after committal for trial was effectively endorsed in Morin.

[140] In calculating this particular cause of delay, institutional delay only "starts to run when the parties are ready for trial but the system cannot accommodate them". This point was amplified in Lahiry. In other words, a court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were reasonably available. Common sense dictates that counsel require time to clear their schedules and adequately prepare for the hearing.

[141] The record before me suggests that counsel provided some of their available dates to the court. While the record is not complete, counsel advised the court that they had earlier dates available, and they did place comments on the record supplemented by an affidavit filed before me. I find that there is some evidence (not challenged by the Crown) as to what counsels’ schedules were at the relevant times. It may be difficult, but not impossible, to determine and allocate exactly how much delay occurred between the setting of the dates for the various proceedings, up to the date of the trial.

[142] The nub of this application is whether the delay that arose from the conflict of interest and Officer’s Dean’s actions are attributable to the Crown.

The application of the legal principles to the facts of this case.

The Length of the Delay

[143] In this case, the total period of delay from the laying of the charge to the completion of trial is approximately 44½ months. On this record, the overall period of delay of 44½ months is sufficient to raise the issue of reasonableness and warrants further inquiry.

Waiver of the Delay

[144] The parties agree that there were no waivers by the applicants.

Reasons for the Delay

[145] In considering this factor, I adopt the nine periods as addressed by both counsel.[^9]

[146] The first period is July 2, 2009 to March 19, 2010 date. That is the date from the swearing of the information to the setting of the date for the first preliminary hearing.

[147] The defence concedes that this period, approximately eight and a half months, is the normal intake period (except for the latter two month period, described below). Generally, this period allows for first appearance, disclosure, and securing of counsel and other necessary activities related to a criminal prosecution. Mr. Posner became counsel of record for Mr. Segal on October 2, 2009. He had reviewed disclosure and sent out requests for additional disclosure one week later. A resolution meeting and a judicial pre-trial were held between January 15 and March 19, 2010.

[148] The applicants did not receive all outstanding disclosure until January 15, 2010; just over three months after the original request had been made. The Crown concedes that two months of delay from this period should be attributed to the Crown for the late disclosure as the applicants were not in a position to proceed with a resolution meeting and a judicial pre-trial until they received full disclosure. The 911 call was of particular importance to the applicants’ case – it was the triggering event of the investigation.

The first few months of the proceedings ought to be allocated as a neutral intake period. However, as both parties concede that there was a delay in providing certain disclosure to the defence in a timely manner, I agree that there was a period of delayed disclosure and two months are attributable to the Crown.

[149] The second period of time is March 19, 2010 until the setting of the first preliminary hearing date of September 22, 2010. That period equals six months.

[150] In Tran the Court of Appeal held inter alia that defence counsel should put on the record their first available dates to conduct the judicial pre-trial and the preliminary inquiry or trial, as the case may be. If counsel does not do this, it may be impossible to determine how the delay should be allocated, especially where there is more than one counsel involved. It should not be assumed that counsel can clear their calendars and co-ordinate their schedules so as to be ready within a few months of the judicial pre-trial. Further, the time necessary for counsel to prepare for the preliminary inquiry or trial must be taken into consideration as part of the inherent time requirements of the case.[^10]

[151] In this case, the first date offered that was available to all parties was September 22, 2010. Counsel provided their schedule to the court and, on consent, Mr. Donald’s schedule, as reasonably known to him at the time, was entered as an exhibit. Both lawyers indicated that they had certain available dates commencing in April or May 2010.[^11] I note that the issues for the preliminary hearing were not complex when the preliminary hearing was set for September 22, 2012. I accept that, for defence purposes, the preliminary hearing in this matter was a discovery process, and did not require the same intense preparation as for trial. Additionally, there was no outstanding disclosure at the time the preliminary hearing was set.

[152] I am prepared to accept, however, that a portion of this period is institutional delay in the Ontario Court of Justice. I have made some allowance for the freeing of calendars and preparation by counsel. For this segment, I conclude that the institutional delay in the Ontario Court of Justice is approximately five months.

[153] The third period is from September 22 to December 7, 2010; the period between the first preliminary hearing and the recommencement of the hearing. The parties agree that the September 22, 2010 preliminary hearing could not be completed on the first date due to the lack of time available to the court to complete the matter. In the absence of a finding of any form of tactical manoeuvring by the defence, in my opinion, the delay during this period arose from the court being unable to accommodate the parties from their estimate of the time required to complete the preliminary hearing. The failure to offer any additional dates between September 22, 2010 and December 7, 2010 – a period of almost two and a half months - is unreasonable. Accordingly, that time-frame must be attributed to institutional delay.

[154] The next period, period four, is from December 7, 2010 to May 18, 2011. The preliminary hearing was aborted due to Mr. Donald having to remove himself from the record. This is a period of five and a half months.

[155] For some of the reasons mentioned earlier in my analysis for the s. 7 Charter application, I find that this delay was as a direct result of the conduct, or rather the omission, of Officer Dean in failing to disclose that his own counsel was also counsel of record for Ms. Krywucky at the preliminary inquiry. To be clear, I cannot sanction the Crown for Mr. Donald’s apparent lack of insight. However, as I have already concluded, Officer Dean, as state actor at the material time, had a positive obligation to at least raise the conflict issue with the federal Crown on September 22, 2010. His inaction and failure to disclose was directly related and contributed to the delay which flowed from the events of December 7, 2010, including a violation of Ms. Krywucky’s s.7 Charter rights.

[156] While running the risk of repetition, in no manner do I fault the prosecutor, Mr. Dykstra. However, the actions of Officer Dean as a police officer must be visited upon the Crown. Therefore, it is my view that this five and a half month period of delay is attributable to the Crown.

[157] The fifth period is from May 18, 2011 to September 6, 2011. On May 18, the preliminary inquiry was aborted by Skowronski J. who, on that date, recused himself. Justice Skowronski’s views about Mr. Donald and Officer Dean’s actions and his reasons for his recusal are firmly placed on the record. I agree with the learned justice’s opinion and with the situation he found himself in on May 18, 2011. In part, his Honour’s recusal appears to have percolated from the initial failure of Officer Dean to divulge that his counsel and Ms. Krywucky’s counsel were one and the same. Ms. Krywucky had to retain counsel as she was not in a position to reasonably defend herself on these very serious charges. For the reasons already discussed, I find that this period of time is directly linked to Officer Dean, and by extension, the Crown. Therefore, three and a half months of delay is attributable to the actions of the Crown.

[158] Period six is from September 6, 2011 to April 19, 2012, a period of seven and a half months. This is the most controversial and disputed period between the parties. The preliminary hearing was set to recommence on September 22, 2011. However, a bit of history leading up to the recommencement of the preliminary hearing is required.

[159] In order to determine the extent of a possible s.7 breach arising from the situation at the first preliminary hearing, Mr. Posner attempted to subpoena Mr. Donald and Mr. Dykstra. I have already outlined the details arising from the exchange of correspondence between counsel.

[160] Mr. Donald chose to challenge the issuance of subpoena in the Superior Court, which necessitated an adjournment on September 6.

[161] The matter returned to court on September 6 before Ebbs. J. I note the comments by the learned Justice at the preliminary hearing once he was apprised of the situation. He opined that due to the late service of the subpoena upon Mr. Donald, any delay would not fall at the feet of the Crown.

[162] However, with respect, I must disagree with the learned judge’s opinion. In the transcript of September 6, there is a lengthy debate about whether the applicants could call Mr. Donald during the course of the preliminary inquiry. Mr. Moffatt for the Crown opposed the applicants’ request, advising that it did not go to the issue of committal, and cited case law in support of his position. He argued that the applicant, at least Ms. Krywucky, had knowledge of this problem since the May 2010 preliminary inquiry date and ought to have acted in a timely manner to address these concerns.

[163] Nowhere in the transcript is it mentioned that defence counsel sent a letter on August 12, requesting to have Mr. Donald and Mr. Dykstra attend as witnesses in order that counsel could fully canvass the issues. Ms. Johnson’s response was that Mr. Dykstra’s involvement did not go to the issue of committal and he would not be made available. It is clear to me that Mr. Posner’s letter was sent out in advance of the recommencement of the hearing alerting the Crown as to defence counsel’s position. Had this matter been acquiesced to, or at least considered by the Crown in a timely manner, it is likely that, while the preliminary inquiry may not have been aborted, the subsequent delay may not have been as protracted.

[164] I find that the defence acted expeditiously to advise the Crown of their intention, notwithstanding that Mr. Donald chose to challenge the issuance of the subpoena. I note the letter from Mr. Posner of August 12, 2011 to Mr. Moffatt did not elicit a timely response.

[165] It is true that the evidence sought by the applicants from Mr. Donald and Mr. Dykstra did not go strictly to the issue of committal. However, it is my view that the very nature of a preliminary inquiry facilitates some discovery. While this right to examine is not an open ended right, and has been somewhat curtailed by the revisions to part XVIII of the Criminal Code, the conflict of interest question was a very live and pressing issue. I accept that, in the circumstances of this case, the applicants were entitled to explore, albeit in a limited manner, the factors giving rise to a potential s. 7 breach, including whether information had been improperly transmitted from the officer to Mr. Donald, subject, of course, to the rules of privilege. I am persuaded that the defence was entitled to build an application and, to a limited extent, be permitted to examine the witnesses to establish a foundation. I need not address to what extent this examination would entail, suffice it to state that in my view, the door was left ajar to permit a limited examination in the circumstances of this case.

[166] That being said, I am not prepared to have Mr. Donald’s actions fall entirely onto the shoulders of the Crown. For reasons, not known to the court, Mr. Donald chose to challenge the subpoena by application to the Superior Court. Mr. Dean was entitled to and did not waive any privilege. Inevitably, such a challenge took time. The matter was eventually resolved when Mr. Donald agreed to attend an out-of-court examination and provided evidence on the record. I note that this discovery process incurred additional costs for Ms. Krywucky.

[167] I do not find anything in the record to support the notion that Mr. Donald’s application in the Superior Court of Justice was a ploy to gain time or delay the proceedings.

[168] Following the discovery on April 19, 2012, defence counsel waived the preliminary hearing. There is nothing in the record to suggest that defence counsel did anything to conduct themselves in a manner to delay or thwart the proceedings.

[169] I have reviewed the September 6, 2011 transcript of proceedings. Although there is a nexus to the actions of Officer Dean, I am prepared to infer that there were limited judicial resources available and, based on Ebbs J.’s brief comments, I accept that he was not readily available prior to the eventual return date.[^12] Therefore I find that half of this entire period or three and a half months is due to institutional delay with the balance being considered as delay attributable to the defence.

[170] Period seven is from April 19, 2012 to July 10, 2012. After the applicants waived the preliminary inquiry, the matter was committed to the Superior Court. It appears to me that all counsel and the court made significant efforts on that day to ensure the earliest possible dates. The period of time between April 19, the conclusion of the second preliminary hearing, and July 10, when trial was set, can properly be allocated as the second intake period and is neutral time.

[171] Period eight is from July 10, 2012 to January 14, 2013. This period involves the six months from the assignment court to the setting of the trial date. The trial was set down for the week of January 14, 2013, and pre-trial motions were scheduled for the week of September 17, 2012, which was the first date offered by the trial coordinator in conjunction with counsel’s availability.

[172] In Morin, Sopinka J. allocated about one month as time for counsel to prepare for trial after setting the trial date, based on the fact that counsel had sought the earliest date for trial. Again in referring to Lahiry and Morin, a court must consider that counsel may not be available at the drop of a hat to conduct a trial and any institutional delay must be considered from that perspective. Based on the evidence before me as to the reasonable availability of counsel,[^13] I am prepared to attribute four months of institutional delay for this period.

[173] The final period is from January 2013 to March 11, 2013, which is the effective date of the trial, a period of two months. While the Crown argues that this period was due to the defence seeking an adjournment, the application filed on August 28, 2012 stipulated that this was a joint application to adjourn the pre-trial dates. I find that the defence moved expeditiously to order the transcripts by letter dated July 31, 2012. For reasons beyond the applicants’ control they did not have all of the transcripts in a timely manner. In a letter dated August 23, 2012, Mr. Posner advised Ms. Johnson that the relevant transcripts were received on August 22, 2012 and that they would be in a position to perfect the application by August 27, 2012. However, Ms. Johnson appropriately conceded that the Crown’s office would not have adequate time to respond in advance of the September 17 application date.

[174] In order to salvage some of the scheduled dates, the pre-trial motions were advanced to December 31, 2012 with the trial set to continue in March 2013. I find that the defence acted expeditiously and did everything reasonably possible within their mandate to move the matter along. In my view, this two month period is attributable to institutional delay.[^14]

[175] Therefore, I conclude that there is 11 months of delay due to the actions of the Crown and 17 months of institutional delay for a total period of 28 months. Included in this period is the failure of police (and, by extension- the Crown) to disclose the conflict of counsel in the particular circumstances of this case, having already determined that this was a breach of Ms. Krywucky’s s. 7 Charter rights. In dealing with this latter point, it would be similarly appropriate to classify the s. 7 Charter issue under the heading of “any other reasons for the delay”. In any event, this entire period of delay is beyond the recognized guidelines.

[176] In my view, balancing all the factors, the institutional or Crown delay in this case was unreasonable. Having found this period of delay exceeds the reasonable guidelines to trial, it is necessary to turn to the issue of prejudice.

Prejudice

[177] The onus is on the accused to establish prejudice, although in some circumstances prejudice may be inferred from the length of the delay.

[178] As the Supreme Court of Canada said in R. v. Godin, at paras. 31 and 34:

The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn." Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward.

[179] Prejudice can be considered from several perspectives: (i) the liberty interest - that is, the prejudicial effect of delay on the liberty of the person accused of a crime; (ii) the fair trial interest - the prejudicial effect of delay on the ability of the accused person to obtain a fair trial; and (iii) the security of the person interest - the prejudicial effect of delay on individual security. It is reasonable to infer that delay will have some impact on the ability of the accused person to obtain a fair trial, since memory diminishes over time. It may also be reasonable to infer some impact on the security interest, due to the anxiety produced by having criminal proceedings outstanding for an extended period of time.

[180] The relevant prejudice is the prejudice arising from the delay in disposing of the charges, not the prejudice that arises from the fact of being charged. The Court of Appeal has stated, however, that the significance of actual prejudice is diminished where the delay exceeds the established guidelines.[^15]

Prejudice Affecting Ms. Krywucky

[181] In her affidavit, Ms. Krywucky claimed that she and Mr. Segal lived together as domestic partners for approximately seven years. For several months, she was not allowed to associate with him because of Court ordered conditions of release. When the matter had to be rescheduled for a second preliminary hearing, she felt that she was starting the proceedings from day one and there appeared to be no end in sight. This caused her significant stress and anxiety.

[182] She claimed that Mr. Segal was noticeably more stressed with their case and this led to arguments. On or about October 25, 2011, they ended their relationship because of the constant arguing related to this matter. She was required to move out of their residence. In late February 2012, they reconciled.

[183] She retained Mr. Donald to represent her in relation to these proceedings. She paid him a retainer fee, and a portion of his full fees. She was surprised with Mr. Donald’s application to be removed from the record. As the matter progressed, counsel was required to make additional court appearances, more than what had been initially anticipated. This resulted in significant and additional costs.

[184] On July 3, 2009, an article in the London Free Press indicated that she had been arrested and charged with these offences. At one point towards the end of her employment, her employer made disparaging remarks to her with respect to this matter as a result of reading the London Free Press.

[185] The applicants were also not able to travel due to Mr. Segal’s court-imposed curfew; however that restriction was eventually lifted.

[186] Mr. Segal did not provide any evidence with respect to the issue of prejudice.

[187] In Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 at pp. 919-920 , the court adopted the following description of what is meant by the phrase "security of the person" in the context of s. 11(b):

It encompasses protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation”. These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of delay.

[188] Ms. Krywucky speaks to some specific prejudice related to the consequences of the delay. Mr. Segal does not provide any evidence of prejudice, although there is some reference to his liberty or security interests from Ms. Krywucky. However, I do not find that the applicants’ liberty interests were impaired to any great extent as a result of the bail conditions. Some of the stress or anxiety to which Ms. Krywucky refers is attributable to being subjected to criminal proceedings and these charges.

[189] I agree with the submissions of the Crown, that some of the evidence that the applicants have put forward is consistent with what any accused person would experience. The negative effects of being charged with a criminal offence are not a factor to be considered in this analysis.[^16]

[190] However, the Crown did not call evidence to rebut the applicant’s affidavit evidence nor did counsel seek to cross-examine the affiant. I am satisfied that the applicants suffered some moderate degree of actual prejudice in respect of their fair trial and their security interests, the individual interests that s. 11(b) is designed to protect. The prejudice here goes beyond the mere passage of time. It is at this juncture that I import some of the considerations that I have addressed in the s.7 application. This includes, but is not limited to, Ms. Krywucky having to retain new counsel, starting afresh at considerable cost and inconvenience, addressing the non-disclosure issue and being forced to attend court on numerous occasions to adjourn the proceedings as a result of Mr. Donald’s application. Again, while I recognize that Mr. Donald has a contributing role to play in this scenario, it is my view that the Crown must be held accountable for part of this dynamic flowing from Officer Dean and the events of December 7, 2010. All of these considerations have not been lost on me.

[191] While prejudice is not automatically presumed, I am also satisfied that the 28 month delay in trying Mr. Segal and Ms. Krywucky, by itself, is sufficiently long to infer prejudice.[^17]

The balancing of factors

[192] In balancing the factors, it is necessary to balance the interests of the accused with the societal interests in having a trial proceed on the merits, bearing in mind the total length and the causes of the delay.

[193] As McLauchlin J. held in her concurring judgment in Morin at p. 810:

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

[194] In conducting the balancing process, it is appropriate to consider the public interest, along with the accused’s interest in a single trial where both persons are jointly charged with an offence. In prosecuting co-accused, both the interests of the defendants and the Crown can result in some delay, as this case has demonstrated. The needs of one party or his or her counsel may slow down the progress of the proceeding, thereby affecting the other party’s interests. It is a case of one important principle (the trial of co-accused) impacting another important principle (the right to trial within a reasonable time).

[195] In cases involving grow operations and the production and distribution of illicit and harmful drugs, I have considered the impact of this type of activity on the community. Thus, I am mindful of the societal interests protected by s. 11(b) in ensuring that alleged offenders are brought to trial and dealt with according to law. Indeed, in Morin, at p.787, Sopinka J. stated: "As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.”

[196] The societal interest in having trials heard on the merits juxtaposed with the principles of having trials conducted within a reasonable timeframe was considered by Cory J. in Askov, at p.1219-1220:

First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Secondly, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest.

[197] I am required to consider the seriousness of the offence and balance that factor with the other considerations. However, I do not raise the seriousness of these offences to any greater level than is required and indeed must balance my analysis of the reasonableness of all of the factors. I agree that society has a heightened interest in seeing that serious offences are tried, such as we find in this case. The corollary to that point is that there is a corresponding obligation on the Crown to ensure that trials for such serious offences are held in a timely manner.

[198] I am reminded that in Askov, Cory J. cautions that “there is a societal interest in preventing an accused from using the guarantee [s. 11(b)] as a mean of escaping trial”.[^18]

[199] No doubt there are cases in which accused persons attempt to delay their trials. This is not one of those cases. Here, the applicants' interests were not served by delay but by having the charges against them resolved expeditiously. I am persuaded that the applicants did not acquit themselves to defeat the very important societal interests in having trials heard on the merits.

[200] The primary purpose of the right to a trial within a reasonable time is to protect the defendant's right to fundamental justice. There is also a societal interest in a speedy trial that is just and fair. The applicants, who are presumed to be innocent, have been denied an opportunity of demonstrating their innocence for an extended period of 28 months in what can be described as a relatively straight-forward drug case with an uncomplicated s. 8 Charter challenge.

[201] I conclude that the time limits prescribed in Morin have been exceeded in this unusual case. I concede that my determination in this case involves a close call with respect to the balancing of interests that I must undertake. However, that balance tips in favour of the applicants. Therefore, on my assessment of all of the relevant considerations, I find that the applicants’ have established that their s. 11(b) rights to be tried without reasonable delay have been breached and they are entitled to a remedy.

Conclusion

[202] I find that Ms. Krywucky has established a breach of her s. 7 Charter rights. However, notwithstanding my finding, this case does not give rise to those ‘clearest of cases’ warranting the relief of a stay of proceedings.

[203] With respect to the s. 11(b) delay application, I have assessed this case based on the relevant jurisprudence and legal principles. I conclude that in this case there was an overall delay of 28 months premised on a period of 11 months of delay caused by the actions of the Crown and 17 months attributable to institutional delay.

[204] I am satisfied that this period of unreasonable delay gives rise to inferred prejudice. I also accept that the applicants suffered moderate prejudice to their security and fair trial interests.

[205] I find that the applicants have established, on a balance of probabilities, that their s. 11(b) rights have been breached. After a balancing of all of the factors, I conclude that a stay of proceedings is the appropriate remedy.

[206] Given my ruling with respect to the s. 11(b) delay, it is not necessary for me to address the s. 8 Charter application. However, I reserve the right to render judgement and provide reasons for my decision should it become necessary to do so.

[207] The charges against Ms. Krywucky and Mr. Segal are therefore stayed.

“A. J. Goodman J.”

A.J. GOODMAN J.

Released: March 1, 2013

[^1]: In these reasons, I may refer to this witness as ‘officer, constable or Mister’ based on his position or role at the relevant time. [^2]: While there was no basis to raise an issue of voluntariness arising from the statements made by Mr. Segal in the driveway, counsel formally waived any requirements for a voir dire. [^3]: Transcript of proceedings - September 6, 2011, p. 107. [^4]: 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, 21 C.C.C. (3d) 7 [^5]: See R. v. Jack (1992), 1992 CanLII 2764 (MB CA), 70 C.C.C. (3d) 67 (Man C.A.) at p. 94; R v. T. (L.A.) (1993), 1993 CanLII 3382 (ON CA), 14 O.R. (3d) 378 (C.A.) at p. 382; R. v. Gagné (1998), 1998 CanLII 12526 (QC CA), 131 C.C.C. (3d) 444 (Que C.A.) at p. 455; and Driskell v. Dangerfield, 2008 MBCA 60 at para. 17. [^6]: At no time was it suggested by counsel that the disclosure of counsel’s name would give rise to any breach of solicitor-client privilege. I agree. [^7]: See R. v. Conway 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289. [^8]: See Morin at pp. 787-788; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449; R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120, 52 C.C.C. (3d) 97. [^9]: For the sake of some simplicity, I have lumped the five subheadings under this category [^10]: Lahiry, at paras. 25-37. Justice Code noted particularly at para. 26, that systemic or institutional delay only starts to run when the parties are ready for trial but the system cannot accommodate them. [^11]: I refer to counsel’s letter of March 16, 2010 and Mr. Donald’s email. This evidence was not challenged by the Crown. [^12]: There was reference made by Mr. Snow to the fact that Ebbs J. was ill for an extended period. However, counsel concedes that the applicants do not place heavy reliance on this factor. [^13]: I refer to the affidavit of Mr. Gross-Stern dated January 1, 2013. [^14]: Even if I were to ascribe this period as neutral or attributed to the defence, in the overall assessment of delay, this two month period is not determinative of my finding. [^15]: See R. v. Brace (2010), 2010 ONCA 689, 104 O.R. (3d) 32 (C.A.) at para. 21. [^16]: See R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161 (C.A.) at para. 33. [^17]: See Morin at p. R. v. Satkunananthan (2001), 2001 CanLII 24061 (ON CA), 152 C.C.C. (3d) 321 at paras. 57-58 (Ont. C.A.) R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 at para. 14 (Ont. C.A.) and R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 at para. 18 (Ont. C.A.). [^18]: Askov at p. 1227.