COURT FILE NO.: 7-388/12

DATE: 20130402

ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

B E T W E E N:

HER MAJESTY THE QUEEN

L. Spencer, for the respondent

Respondent

- and -

PATRICK SIKORSKI and DANIEL GRIFFITHS

J. Greenspan & J. Thompson, for the applicant, Patrick Sikorski

D. Humphrey, for the applicant, Daniel Griffiths

Applicants

HEARD: March 19, 2013

Nordheimer J.:

[1] Mr. Sikorski and Mr. Griffiths seek a stay of the charges against them on the basis that there has been an unreasonable delay in bringing this matter to trial such that it offends their right to a timely trial under s. 11(b) of the Canadian Charter of Rights and Freedoms. Accordingly, it is necessary to review the chronology of events in this proceeding.

[2] The applicants face one count of sexual assault, one count of administering a stupefying drug or noxious substance for the purpose of committing a sexual assault and one count of committing a sexual assault to which the other was also a party. These charges arise out of allegations that the applicants together had non-consensual sex with the complainant. The sexual assault is alleged to have taken place on December 5, 2009. Mr. Sikorski was charged on December 7, 2009. He was released on a surety bail the next day. Mr. Griffiths was charged on December 16, 2009. He also was released on a surety bail the next day.

[3] The applicants made their first appearance in the Ontario Court of Justice on January 7, 2010 at the College Park courthouse. Disclosure was not available. The matter was adjourned to January 29, 2010 because defence counsel were told that the prosecution should be at the Old City Hall courthouse. On January 29, 2010, the matter was adjourned to February 26, 2010. Disclosure was not available. On February 26, 2010, counsel were advised that the prosecution should, in fact, be at the College Park courthouse. Disclosure was not available. The matter was adjourned to March 11, 2010.

[4] On March 11, 2010, initial disclosure was provided. The matter was adjourned to April 1, 2010. Subsequently, counsel wrote to the Crown Attorney’s office requesting further disclosure including outstanding toxicology reports.

[5] On April 1, 2010, Crown counsel was prepared to set a date for a judicial pre-trial until defence counsel pointed out the outstanding disclosure, notably the toxicology reports. It was agreed to adjourn the matter again. Crown counsel asked for some time to obtain the additional disclosure. The matter was adjourned to May 6, 2010. There was also some discussion at this time about the applicants providing consent DNA samples. Consent DNA samples were not ultimately forthcoming from either accused.

[6] On April 21, 2010, Mr. Sikorski brought a bail review to loosen certain geographic restrictions that had been placed upon him and to permit him to be able to reside at his own residence. The Crown opposed the application. The decision on the bail review application was reserved. In addition, on that day, further disclosure was given including a toxicology report.

[7] On May 6, 2010, Mr. Sikorski’s bail review was granted. Also on May 6, there was a further appearance at the College Park courthouse. Crown counsel wanted to set a date for a pre-trial but defence counsel objected because of the outstanding requests for further disclosure. The matter was adjourned to June 3, 2010.

[8] On June 3, 2010, a disclosure pre-trial was set for June 28, 2010. Further disclosure was provided on June 3 but other disclosure remained outstanding. The matter was adjourned to July 8, 2010.

[9] The disclosure pre-trial proceeded as scheduled. On July 8, 2010, a judicial pre-trial was set for August 30, 2010. Crown counsel promised that further disclosure would be available prior to that date.

[10] On August 12, 2010, Mr. Griffiths brought a bail review seeking a loosening of the conditions originally imposed on him. While Crown counsel opposed the application, the court granted it and, among other things, the house arrest condition was relaxed to a curfew.

[11] On the morning of August 30, 2010, further disclosure was made including surveillance videos and a toxicology report. Some small amount of disclosure was still outstanding. Defence counsel were advised that the police still intended to pursue DNA warrants for the applicants. At the judicial pre-trial, it was determined that a preliminary hearing should be scheduled for five days. The matter was put over to June 6-10, 2011 for a preliminary hearing.

[12] Very shortly after the dates were set for the preliminary hearing, lead counsel for Mr. Sikorski realized that he was not, in fact, available for the June dates. Counsel immediately notified Crown counsel and brought an application to set new dates. As a consequence, the preliminary hearing was re-scheduled to August 22-26, 2011. On November 18, 2010, these preliminary hearing dates were confirmed.

[13] On June 1, 2011, DNA warrants were issued. They were complied with shortly thereafter. While the defence complains about the time that was taken in pursuing the DNA warrants, there is nothing in the record that demonstrates that the issue of the DNA warrants played any role in the overall progress of the case.

[14] On July 8 and August 9, 2011, additional disclosure was provided. Thereafter, defence counsel requested some additional disclosure.

[15] On August 21, 2011, in preparation for the preliminary hearing, the complainant was interviewed by the police and Crown counsel. She provided different information at this time regarding which of the accused had sexually assaulted her first. As a result, the police decided to interview K.T., a friend of the complainant who had accompanied her to the police when she made her original complaint back in December 2009.

[16] On August 22, 2011, counsel attended for the preliminary hearing. Crown counsel advised defence counsel of the interview with the complainant the previous day and the interview with K.T. and that disclosure of these interviews would need to be made. Disclosure of these interviews was provided to defence counsel later in the day. The preliminary hearing commenced in the afternoon with the evidence of a forensic officer. The hearing was then adjourned to the next day.

[17] It had been the original plan that on the next day, August 23, Crown counsel would call K.T. as a witness. She was to be called out of order because she was moving the next day to the United States. K.T. was present at court that day but, after further consideration, Crown counsel decided not to call K.T. as a witness. K.T. was advised that she could leave. Defence counsel were not immediately told of these decisions, however.

[18] When Crown counsel did advise defence counsel that she did not intend to call K.T. as a witness, defence counsel said that they wanted to hear from K.T. By this point, however, K.T. had left the courthouse and could not be quickly located. Defence counsel sought and obtained a subpoena from the preliminary hearing judge for K.T. but she could not be located. It turned out that K.T. had, in fact, left for the United States that same day.

[19] Subsequent to these events, the defence went to considerable efforts to serve a subpoena on K.T. but all of those efforts failed. K.T. was in the United States and refused to return to give evidence. After much back and forth over many weeks, K.T. eventually gave an affidavit to defence counsel that, as I understand it, essentially confirmed that her police statement was accurate. I should note that, for whatever reason, K.T. had not given her statement to the police under oath. The defence complains that Crown counsel did not assist in their efforts to locate K.T. I will deal with that issue later.

[20] The preliminary hearing continued with the evidence of the complainant. On August 25, 2011, disclosure regarding the DNA findings was made. On August 26, 2011, it became apparent that the preliminary hearing was not going to conclude that day as originally scheduled. Eventually, it was agreed that the preliminary hearing would continue on November 17, 2011 and on three non-consecutive dates thereafter.

[21] On October 19, 2011, Mr. Sikorski brought a second bail review. This time he sought a variation to his existing conditions to permit him to go on a trip to Africa with his father and for permission to allow him to use a firearm while on that trip. While Crown counsel opposed the application, it was granted.

[22] On November 8, 2011, further disclosure was made in the form of forensic and toxicology reports. This toxicology report was materially different in content than had been the case with the earlier toxicology reports. This disclosure led to a request for further disclosure of material underlying the reports. The contents of the report also lead to the defence advising that they would now need to retain their own toxicology expert.

[23] On November 17, 2011, the preliminary hearing continued. Certain evidence was heard but the defence advised that they could not proceed with the cross-examination of the toxicologist because of the recent disclosure that they needed to review with their own expert.

[24] On November 24, 2011, further disclosure relating to the toxicology report was made.

[25] On November 28, 2011, the preliminary hearing continued with further evidence from the complainant. The issue regarding whether K.T. would be heard from was still outstanding. The complainant’s evidence continued on November 30, 2011 and was completed on December 5, 2011. The toxicologist had still not been heard so a further date for the preliminary hearing was needed. It was agreed that the preliminary hearing would continue on December 23, 2011.

[26] On December 23, 2011, the preliminary hearing continued with the evidence of the toxicologist. The preliminary hearing was still not complete, however, because of the outstanding issue regarding K.T.

[27] On that same day, Mr. Griffiths sought a further loosening of the conditions of his release. In this instance, Crown counsel consented to a variation that included, among other things, a removal of the curfew condition.

[28] On January 16, 2012, the matter returned before the preliminary hearing judge for an update regarding K.T. On February 2, 2012, the preliminary hearing continued for the purpose of hearing from the father of K.T. whom the defence had subpoenaed in an effort to obtain contact information for K.T. On March 8, 2012, the matter returned before the preliminary hearing judge again for an update regarding K.T.

[29] On March 30, 2012, the preliminary hearing continued. Defence counsel had, by this time, received the affidavit from K.T. As it appeared that the affidavit was as much as the defence was going to be able to obtain from K.T., given that she was still out of the jurisdiction, counsel proceeded with their submissions on committal. The decision on committal was reserved.

[30] On May 17, 2012, the applicants were committed to trial on all charges. I should mention at this juncture that originally there had been two complainants. However, Crown counsel advised fairly early on in the preliminary hearing process that she would not be pursuing the charges relating to the other complainant. The applicants were therefore formally discharged on the charges relating to that complainant.

[31] The matter was adjourned to June 27, 2012 in this court. On that date, a judicial pre-trial was set for July 20, 2012. On July 20, 2012, the pre-trial was held and a two week trial was fixed for March 2013. While counsel were available for a trial in October 2012, dates in March 2013 were the earliest that the court could provide for that length of trial with accused who were out of custody. While March 4, 2013 was available to start the trial, counsel for Mr. Griffiths was not available that week or the following week. Consequently, March 18, 2013 was set as the trial date.

[32] On December 14, 2012, Mr. Sikorski brought his third bail review. Mr. Sikorski sought a variation to permit him to travel to Mexico for one week. While Crown counsel once again opposed the application, it was granted on that day.

[33] On December 28, 2012, the defence brought a third party records application regarding counselling records of the complainant. The records were delivered to the court on January 31, 2013 when they were released to counsel for the complainant for review. Those records were the subject of a separate application that was heard on the trial date, March 18, 2013.

[34] As of March 18, 2013, thirty-nine months and eleven days had passed since Mr. Sikorski was charged and thirty-nine months and two days had passed since Mr. Griffiths was charged.

A. Analysis

[35] With that recitation of the chronology leading up to this trial, I now turn to my analysis of the issues raised by the application.

[36] The factors to be considered in determining whether an accused person’s s. 11(b) rights have been infringed are set out in a number of cases but they may all be traced back to the decision in R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120. The four factors are (1) the length of the delay; (2) whether the accused has waived any time periods; (3) the reasons for the delay and (4) the issue of prejudice to the accused person.

[37] I will deal with each of those factors.

1. The length of the delay

[38] As I have just noted, the total time from the date of the charges to the current trial date is slightly more than thirty-nine months. Such a period of time is of sufficient length to warrant scrutiny by this court as constituting a possible infringement of the accused’s s. 11(b) rights under the Charter. The Crown does not dispute that this is the case.

[39] Before turning to the allocation of periods of time involved in this case, it may be helpful to first divide the time spent between the two levels of court. The total time between the date of the charges to the committal for trial in the Ontario Court of Justice is approximately twenty-nine months and the total time between the committal for trial and the trial itself in this court is approximately ten months.

2. Waiver of time periods

[40] It is agreed that there are no instances where the applicants can be said to have waived any periods of time.

3. Reasons for the delay

[41] This factor is broken down into five sub-categories.

(a) the inherent time requirements of the case

[42] As was observed in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 every case has its own inherent time requirements. As Sopinka J. said, at p. 792:

Whatever one wishes to call these requirements, they consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc. All of these activities may or may not be necessary in a particular case but each takes some amount of time. As the number and complexity of these activities increase, so does the amount of delay that is reasonable. Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay.

[43] The applicants had counsel from the outset of the charges being laid. In each instance, bail hearings were held within one day of the charges and each applicant was released on a surety bail. Retainer and bail issues therefore proceeded as quickly as could be reasonably expected. Disclosure, on the other hand, was a different matter.

[44] The applicants contend that this is not a complicated case. The Crown contends that it is. While the fairest characterization falls in between those two ends of the spectrum, the case falls closer to the complicated end of that spectrum than it is does to the simple end. While it is not the most complex case that could arise, there is nonetheless a measure of complexity involved given the circumstances that underlie the offences. At the forefront of those complexities is the issue of expert evidence on the subject of toxicology – a reality that the defence must acknowledge given their subsequent decision to retain their own toxicology expert and the emphasis that the defence continually put on the disclosure of the toxicology reports.

[45] This was not a straight forward sexual assault case where the complainant says that the accused had sex with her/him without consent and the accused either denies that the sexual activity occurred or says that it occurred with consent. Here it is alleged that the accused engaged in some form of joint plan to “drug” the complainant and then, together, engaged in sexual activity with her while she was unable to resist. As a consequence, there was an obvious need for scientific testing to be undertaken.

[46] Scientific evidence always complicates any proceeding. As was the case here, the Crown often relies on the experts at the Centre for Forensic Sciences for scientific analysis. It is well known that the CFS has many demands placed upon it and, thus, it cannot be expected to produce results and reports with lightning speed. The time that is normally required to obtain such results and reports are, within reason, part of the inherent time requirements of the case. There is nothing that I see in the progress of this case that suggests that there was any inordinate delay in the obtaining and disclosure of that information, with one exception.

[47] The applicants contend that the Crown was delinquent in its approach to the scientific testing. In particular, the applicants say that the Crown delayed in having some items tested for a considerable period of time and that contributed to the delay in getting the preliminary hearing underway. While the record does establish that there was subsequent testing of items undertaken at the Crown’s request, there is no information regarding the reasons for that subsequent testing that would permit me to determine the cause of that additional testing or the reasonableness of the time frame in which it was conducted.

[48] I accept, however, that the disclosure of a further toxicology report in November 2011, almost two years after the charges had been laid, is unreasonable. If the Crown decides to conduct further scientific testing, and the results of that testing leads to delay in the proceeding, then the Crown must bear responsibility for that delay unless the Crown leads evidence that some entirely unexpected event occurred that required the additional scientific testing. In this case, the Crown delivered a new and significantly different toxicology report on November 8, 2011 that resulted in the preliminary hearing not being able to be completed in November as had been expected. As a consequence, an additional date of December 23, 2011 had to be added to complete the evidence. The Crown bears responsibility for that delay.

[49] In addition, disclosure in this case has not been a simple matter. The initial disclosure included twelve DVDs containing surveillance videos and other items and one CD with over 1,000 pages of notes. This is a considerable amount of disclosure. Indeed, one of the defence counsel, in a letter to Crown counsel, referred to this initial disclosure as “voluminous”.

[50] After the initial “voluminous” disclosure was made, counsel for Mr. Sikorski wrote to the Crown’s office requesting additional disclosure including toxicology reports, all media (photographs, videos, etc.) seized, any and all statements for eleven named individuals, police notes for thirty-eight police officers, forensic reports, records of arrest and CPIC records. While it would not be surprising, in light of the nature of this case, that some further disclosure would occur over a period of months, the breadth of the above request by defence counsel only serves to reinforce the reality that disclosure was going to be an ongoing issue.[^1] Yet, I am unable to see anything in the record that suggests that the Crown was being dilatory in its disclosure obligations save and except for the late toxicology report to which I have already made mention.

[51] Also on this point, it is recognized that the holding of a judicial pre-trial (or pre-hearing conference) is a necessary and desirable aspect of the proceedings and that the time required to schedule, prepare for and conduct a pre-trial is part of the inherent time requirements of the case – see R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 (C.A.) at para. 54. The approximately two months between July and August 2010 that it took to schedule and hold the judicial pre-trial is therefore part of the inherent time requirements of the case.

[52] I also do not consider a period of slightly more than three months (December 7/16, 2009 to March 11, 2010) for the intake period in the Ontario Court of Justice and two months (May 17, 2012 to July 20, 2012) for the intake period in the Superior Court of Justice to be unreasonable in the circumstances of this case.

(b) actions of the accused

[53] There are certain instances where the defence bears responsibility for some of the delay. One is for the period from May 6, 2010 to July 8, 2010. Crown counsel wanted to set a date for a pre-trial on May 6. The defence objected because of outstanding disclosure issues, notably the lack of any toxicology reports. The pre-trial date was eventually set on July 8 for August 30, 2010, when the disclosure issues were resolved.

[54] It is well-established that the defence cannot insist on having each and every piece of disclosure that they might desire before agreeing to set dates for a preliminary hearing or for a trial. This point was made in R. v. Kovacs-Tatar (2006), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161 (C.A.) where the court said, at para. 47:

Also, because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The defence was not forfeiting its “Stinchcombe rights” by agreeing to set a trial date. Counsel for the appellant did not act reasonably in insisting that he receive the expert report before setting a trial date.

[55] In my view, the defence, knowing the delay that there would be in getting a date for the preliminary hearing, ought not to have insisted on holding off setting a date for a pre-trial (which is a necessary first step to setting dates for a preliminary hearing) because of the outstanding disclosure issues. Consequently, I conclude that the defence bears the responsibility for that two month delay.

[56] The defence also bears responsibility for the two month delay between June and August 2011 for the commencement of the preliminary hearing because of defence counsel’s schedule.

[57] The defence also bears responsibility for the two week delay in setting the trial date from March 4 to March 18, 2013 because one of the defence counsel was not available on the earlier date.

[58] In my view, the defence also bears some measure of responsibility for the delay in the completion of the preliminary hearing in two respects. First, the defence agreed that five days would be sufficient for the preliminary hearing when the original dates were set. The defence cross-examined the complainant for four of those five days. Given the length of that cross-examination, the preliminary hearing was never going to be completed in five days and it was unrealistic to have set it for that time. It must be taken that counsel are aware of the problems with scheduling in the Ontario Court of Justice given the demands on that court’s limited resources. In particular, counsel must be aware of the practical reality that, if a preliminary hearing is not completed within its allocated time, any additional time required for the continuation of the preliminary hearing is likely to be some considerable time in the future. This reality means that counsel must be especially careful in setting the amount of time for a preliminary hearing, and then must proceed with the hearing with that allocated time clearly in mind and adjust the conduct of the preliminary hearing with that knowledge. The fact that that did not occur in this case lead to further days being needed to complete the preliminary hearing and resulted in the delay between August 26 and December 5, 2011 when the evidence was completed but for the toxicology expert. The defence is responsible for that three month delay.

[59] Second, there was a further delay between December 23, 2011 and the completion of the preliminary hearing with submissions on March 30, 2012. This delay was entirely to do with the issue of K.T. as a witness. The issue arose from the decision of Crown counsel not to call K.T. as a witness and then releasing her, all without informing defence counsel. But the issue also arose from the insistence by the defence that they wished to call K.T. as a witness at the preliminary hearing. Presumably this decision arose from the defence wish to, in essence, have a discovery of what K.T. might say notwithstanding that they had the videotaped statement that she had given to the police. While discovery is a recognized consequence of a preliminary hearing, it is not the primary purpose of a preliminary hearing which is to determine whether there is sufficient evidence to commit an accused person to trial. If defence counsel prolong a preliminary hearing for the sole purpose of discovery, they cannot then visit any consequent delay on the prosecution for the purposes of s. 11(b). This conclusion is consistent with the point that was made in Morin where Sopinka J. said, at pp. 793-794:

I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

[60] The three month delay in completing the preliminary hearing involving K.T. originated with actions of the prosecution but was exacerbated through actions of the defence. I agree that there was no obligation on the Crown to assist in locating K.T. since the Crown did not intend to call her as a witness although co-operation on these types of matters is always to be hoped for and encouraged. As a consequence, K.T. became a defence witness and it became the defence’s responsibility to locate and subpoena her. Nevertheless, the problems that the defence encountered with locating K.T. began with the actions of the Crown in releasing her without first telling the defence. The Crown is not therefore exempt from the cause of the delay. In the end result, I consider the fair conclusion on this issue to be that the Crown and defence should equally bear responsibility for that delay. Consequently, I attribute one and one-half months of the delay to the defence and an equal amount to the Crown.

(c) actions of the Crown

[61] For the reasons I have just given, the Crown bears responsibility for one and one-half months of the delay in completing the preliminary hearing.

[62] I have also found the Crown responsible for the one month delay between November 17, 2011 and December 23, 2011 in the completion of the preliminary hearing because of the delay in the disclosure of the latest toxicology report.

[63] There are no other instances where I can conclude that the Crown was responsible for any of the delay in this case.

(d) limits on institutional resources

[64] There are two aspects of the delay that fall under this factor.

[65] First is the fact that the earliest dates for the preliminary hearing that the Ontario Court of Justice could offer were nine months away from the time that the date was set.

[66] Second is the fact that the earliest trial date that this court could offer after the case had been pre-tried was eight months away.

[67] I would note that both of these time periods are within the guidelines (although just so) that were suggested in Morin, where Sopinka J. said, at pp. 798-799:

In Askov, Cory J., after reviewing comparative statistics suggested that a period in the range of six to eight months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this court to suggest a period of institutional delay of between eight and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of six to eight months that was suggested in Askov.

[68] It is at this point that I will address the suggestion that arises from the decision in R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.) that the guidelines set out in Morin were only intended to apply to simple straightforward cases and that in more complex cases, such as the one here, they should either not be applied or they should be adjusted upwards. The particular reference in Lahiry appears at para. 160 where Code J. said:

The Supreme Court of Canada was setting standards for short, efficient, high-volume summary trials in Morin’s Case. The four cases under appeal do not fit this description. There is a good argument that if different standards are to be imposed today, then they must take into account the fact that these trials are no longer short and simple ones like Morin’s Case.

[69] With respect, I do not read anything in the Supreme Court of Canada’s decision in Morin that suggests that the court intended to so limit the guidelines that were being set out. Certainly there is nothing in the words where the guidelines are discussed, a portion of which I have set out above, that incorporates such a limitation or that differentiates between one type of case or another. The suggestion that there is such a narrowing of the application of the guidelines would also appear to be inconsistent with the reference, near the outset of Sopinka J.’s reasons, that the court was addressing this issue in light of the impact that the court’s decision in R. v. Askov 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 had had including the fact that since that decision over 47,000 charges had been stayed or withdrawn in Ontario and that some of those charges involved individuals who were charged “with very serious crimes”.

[70] That said, I recognize that the guidelines are just that, guidelines not limitation periods. I also recognize that the guidelines may require adjustment for “local conditions” and “changing circumstances”. There is, however, no evidence before me that any unanticipated or unusual events have occurred in recent times in the Toronto region that would justify any such adjustment, and certainly not an upward adjustment. I conclude therefore that the guidelines from Morin are the appropriate guidelines to be applied in this case.

(e) other reasons for delay

[71] I consider the two months between March and May of 2010 that were spent obtaining additional disclosure for the defence to be part of the inherent time requirements of the case, as were the two months between early July and late August of 2010 to prepare for and obtain the date for a judicial pre-trial. Similarly, the one and one-half months spent by the preliminary hearing judge between March and May of 2012 to deliver his reasons on committal is also part of the inherent time requirements of the case.

4. Prejudice to the applicants

[72] There are two aspects to this factor. One is actual prejudice and the other is inferred prejudice. Both are equally important considerations. In my view, prejudice can be inferred in this case given the time that has passed. Over three years for a matter such as this to get from arrest to trial is excessive but, unfortunately, not unusual – at least not in the Toronto region.

[73] Indeed, it appears to be the norm in the Toronto region for cases where relatively serious offences are involved (i.e. the vast majority of cases in this court) to take more than three years to get to trial. The fact that that is the norm in this region ought to be of great concern when one contrasts that time with the guidelines in Morin that, at their outer limit, total eighteen months. It is difficult to believe that almost every case that reaches this court requires necessary delay of an amount equal to or greater than the acceptable institutional delay set out in Morin.

[74] It also seems to have been forgotten that the Supreme Court of Canada in Morin alluded to the fact that in regions where the case-load has become known and predictable, the time allowed for delay in the guidelines might be seen as being overly generous. Specifically Sopinka J. said, at p. 797:

On the other hand, when the case load has been constant over a substantial period of time the delay envisaged by the guideline may be regarded as excessive.

[75] Rather than being considered as excessive, however, at least in the Toronto region, it appears that this degree of delay in prosecuting serious criminal charges has become accepted as the norm and is apparently considered entirely tolerable under any s. 11(b) analysis.[^2]

[76] The other aspect of prejudice is actual prejudice. Both of the applicants have filed affidavits recounting the effects that the charges have had on them both personally and professionally. As noted in Morin at p. 786, actual prejudice can arise in three different ways: (i) prejudice to the liberty interests of the accused that arise from pre-trial incarceration or restrictive bail conditions; (ii) prejudice to the accused’s security interests as a result of ongoing stress or damage to reputation as a result of “overlong exposure” to criminal prosecution and (iii) prejudice to the accused’s ability to make full answer and defence.

[77] The affidavits of the applicants demonstrate actual prejudice to both their liberty interests and their security interests. In terms of their liberty interests, both applicants were initially subject to house arrest. That restriction was lessened to a curfew for both applicants but the curfew itself imposed restrictions on the liberty of the applicants. I would note that the effect of some of these restrictions was likely greater for the applicants given their respective ages than would be the case for someone older.[^3] There were limitations on their ability to move around Toronto and to travel. There were also restrictions on their ability to enter premises where alcohol was served. Put simply, both of the applicants were denied the ability to undertake a variety of activities that all other members of the public take for granted. While restrictions are a necessary element of judicial interim release in order to ensure the protection of the public, the impact on the individual who is subject to those restrictions should never be taken for granted or treated dismissively in the delay analysis.

[78] The applicants also complain, in this regard, that they had to bring bail reviews in order to loosen the restrictions that were placed upon them and that, in the three instances where Mr. Sikorski did so, and in one of the two instances where Mr. Griffiths did so, the Crown opposed these bail variations. While the Crown is not under any obligation to consent to any bail variation, the fact that they oppose a bail variation that is ultimately granted does, in my view, somewhat exacerbate the prejudice arising from these events. Not only does it increase the anxiety for the accused person but it also increases the financial cost to them in having to take that step. That reality is an additional element that ought fairly to be considered in the prejudice analysis.

[79] In terms of their security interests, both applicants have had these charges hanging over them for more than three years. There is no suggestion that the applicants have been anything but desirous of an expeditious process for the resolution of these charges. They have both attested to the effects that these charges have had on them, their families, their friends and their fellow workers. The nature of the effects recounted by the applicants in their affidavits is precisely the type of impact that s. 11(b) is designed to protect against. As Sopinka J. observed in Morin, at p. 786:

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings.

[80] These effects have been exacerbated by the length of time that the charges have remained outstanding without resolution. Members of the public may understandably wonder why a person who is truly innocent of criminal charges would still be under the cloud of those charges many, many months after the events. They may come to believe that the accused is intentionally delaying his or her trial because he or she is in fact guilty of the charges – a belief that is not restricted just to members of the public. Some participants in the justice system seem inclined to that same belief.[^4] For similar reasons, as time passes, family and friends may become less receptive to, and believing of, the continued protestations of innocence by persons accused of a crime.

[81] The Crown says that the effects, of which the applicants complain, arise from the fact of being charged and do not constitute prejudice for the purpose of the s. 11(b) analysis. In my view, that contention puts too narrow a focus on the prejudice analysis. It is true that an accused person will suffer prejudice from being charged regardless of whether the trial takes place in a timely fashion or not. It is also true that the infliction of that initial inherent prejudice is not the form of prejudice with which the s. 11(b) analysis is generally concerned. However, if that prejudice is exacerbated by a failure to proceed to trial promptly, then that prejudice does factor into the s. 11(b) analysis. As Wilson J. said in R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588 at p. 624:

The prejudice arising from the fact of being charged with a criminal offence is suffered even where the accused is tried within a reasonable time. It is, so to speak, inherent in the system itself. I agree with Lamer J., however, that that prejudice must be kept to a minimum by a speedy disposition of the charges against the accused. If this is not done, then the degree of prejudice will exceed that which is the inevitable concomitant of the system and be directly attributable to the delay under s. 11(b).

[82] I am therefore satisfied that there is both inferred and actual prejudice to the applicants arising from the delay in this case.

B. Calculation of the delay

[83] As I set out above, the total time from the date of the charges to the current trial date is approximately thirty-nine and one-quarter months – twenty-nine and one-quarter months in the Ontario Court of Justice and ten months in the Superior Court of Justice. The Court of Appeal has made it clear that all of that time must be allocated among the various causes of delay. My allocation of that time is as follows:

Ontario Court of Justice

December 7/16, 2009 – March 11, 2010

3 months

Intake period - neutral

March 11, 2010 – May 6, 2010

2 months

Inherent time requirements - neutral

May 6, 2010 – July 8, 2010

2 months

Actions of the defence

July 8, 2010 – August 30, 2010

2 months

Inherent time requirements - neutral

August 30, 2010 – June 6, 2011

9 months

Institutional delay

June 6, 2011 – August 22, 2011

2.5 months

Actions of the defence

August 22, 2011 – August 26, 2011

0.25 months

Inherent time requirements - neutral

August 26, 2011 – December 5, 2011

3 months

Actions of the defence

December 5, 2011 – December 23, 2011

1 month

Actions of the Crown

December 23, 2011 – March 30, 2012

1.5 months

1.5 months

Actions of the defence

Actions of the Crown

March 30, 2012 – May 17, 2012

1.5 months

Inherent time requirements - neutral

Superior Court of Justice

May 17, 2012 – July 20, 2012

2 months

Intake period - neutral

July 20, 2012 – March 4, 2013

7.5 months

Institutional delay

March 4, 2013 – March 18, 2013

0.5 months

Actions of the defence

[84] I take the opportunity at this point to observe that there is some confusion in the s. 11(b) case law as to the proper time period to which the guidelines apply. Some cases apply the guidelines to the total time between arrest and trial and others apply them only to the period where the parties are ready to set dates and those dates are actually set. Some cases appear to blend the two. While the confusion is understandable given the language used in many of the cases, it appears that the correct approach is to take the total period of time between arrest and trial, deduct from that period the time for which the defence is responsible, further deduct the intake periods and the inherent time requirements of the case and then compare the remaining time period with the guidelines to determine its reasonableness. I take this to be the proper approach based on my reading of the Supreme Court of Canada’s most recent discussion of the subject in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3.

[85] In this case, I contrast the total time in the guidelines in Morin for a two-stage proceeding of fourteen to eighteen months and compare it to the total time that it has taken this case to get to trial. That contrast demonstrates that this case has taken more than twice the period set out in the guidelines. However, as Cromwell J. said in Godin, at para. 5:

It is clear that these guidelines were substantially exceeded in this case. That, on its own, does not make the delay unreasonable.

[86] Rather, as I have said, one has to deduct from the total period of delay those portions of the delay that are attributable to matters that are either neutral in the s. 11(b) analysis or for which the defence is responsible. Employing this approach, and with reference to the allocations I have set out above, the neutral time periods constitute almost 11 months, delays caused by the defence total 9.5 months and the institutional delay is equal to 19 months, which is just one month above the outside limit of the Morin guidelines.

[87] I should mention one other matter regarding the allocation of time that I have made. It may be suggested that I have failed to properly take into account the availability of defence counsel in my analysis of institutional delay. This issue arises, not entirely but principally, from the decision in Lahiry where Code J. said, at para. 34:

Finally there is no place for fictions when seeking to prove Charter violations. It is rarely true that counsel is immediately available for trial, when setting a date. Whenever counsel take on a new case, they complete various preliminary steps during the intake period. Once they have taken these steps and are ready to set a date for trial, they need to set aside sufficient time in their calendars to prepare the new case for trial and to then conduct the trial. If the case is lengthy and complex, or if counsel are very busy, it may be some considerable period of time before counsel are ready for trial. To use a simple hypothetical, if counsel has no time in his/her calendar to prepare a new case for trial and to then try it until ten months in the future, and the earliest date that the court has available for the trial is 12 months in the future, then systemic congestion in the court is the cause of only two months of delay. The other ten months is delay that the accused needs, for entirely beneficial reasons, in order to allow his/her counsel of choice to prepare the case for trial and to accommodate it in an otherwise busy calendar. It is good and necessary delay that would have occurred in any event, even if the court had earlier available dates. It is a fiction to characterize this kind of useful delay as unwarranted or unreasonable or prejudicial.

[88] I confess to having some difficulty with this approach to the issue of institutional delay for two reasons.[^5] The first reason is that it invokes a form of “chicken and egg” analysis. Delays in the court system wind up being excused on the basis that counsel would not be available in any event for earlier dates, if the courts had them. However, counsel may well be unavailable because they know that the courts cannot offer timely dates. This approach also seems to penalize defence counsel for not being available at any given point in time that the court might be able to accommodate a preliminary hearing or a trial. Placing such a burden on defence counsel has been recognized as being unfair and unreasonable in the context of a proper s. 11(b) analysis. As Cromwell J. observed in Godin, at para. 23:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

[89] If counsel are aware that in a region like Toronto, for example, they cannot expect to get a trial date in the Superior Court of Justice any earlier than nine to twelve months from committal, then when they are organizing their schedules they will presumably take that fact into account. They will presumably take a similar approach with their knowledge of the available times in the Ontario Court of Justice. Put simply, counsel are not going to refrain from scheduling other matters into those periods (considering all of the consequences including, obviously, financial ones) in order just to gain a theoretical (and costly) advantage in the s. 11(b) analysis. Practically speaking, they are going to schedule other matters into those time periods because of their certain knowledge that dates for preliminary hearings or for trials are not available during those time periods.

[90] As a consequence of this reality, when a client approaches counsel to be retained, I assume that that counsel will match his or her availability against their knowledge of when the two most significant events (the preliminary hearing and the trial) will likely occur. If counsel is not going to be free at the times when those events will likely fall, I assume counsel discusses that reality with the client. The client can then make a decision whether to retain other counsel with earlier availability or proceed to retain the first counsel with knowledge that some delay will result and about which they will not later be able to complain.

[91] Put another way, if both the Ontario Court of Justice and the Superior Court of Justice in the Toronto region were routinely in a position to offer preliminary hearing dates and trial dates within six months (or ideally within an even shorter period) of arrest and committal, then I expect that counsel would schedule themselves, including deciding which retainers to accept and which to decline, with that knowledge in mind. Certainly, in that scenario, there would be a much greater justification to attribute any delay past those points to the actions of the accused than it is to do so now when the institutions are not able to meet those earlier time frames regardless of counsel’s availability. In effect, the current approach penalizes defence counsel for not being in that state of perpetual availability that Godin (and some prior cases) relieved them from.

[92] The other reason that the Lahiry form of analysis is troublesome is that it serves to mask the problem with the current availability of dates in both courts. The fact is that trial dates are not generally available in this court for nine to twelve months after the case has been judicially pre-tried and is ready for trial. I understand that there are similar, if not greater, delays in the Ontario Court of Justice. These delays are, of course, directly the result of the level of resources that are directed to both courts.

[93] The Supreme Court of Canada addressed the concerns that arise from this situation in both Askov and Morin. Those decisions reflect the reality that the justice system is not entitled either to a first claim on public funds or to an unlimited claim. As Cory J. said in Askov at p. 1224:

Wise political decisions will be required with regard to the allocation of scarce funds. Due deference will have to be given to those political decisions as the provisions of courtroom facilities and Crown Attorneys must, for example, be balanced against the provision of health care and highways. Yet solutions must be found as indeed they have been in many jurisdictions outside Ontario.

[94] That said, the justice system is entitled to at least the same priority and attention that governments give to other very important public needs.[^6] There is a strong public interest in a properly functioning justice system. A justice system that fails to deal in a timely fashion with persons who are charged with serious criminal offences will undermine the public’s confidence in the justice system that will, in turn, affect the public’s own sense of security. Again this consequence was addressed in Askov, where Cory J. said, at p. 1221:

From a wider point of view, it is fair to say that all crime disturbs the community and that serious crime alarms the community. All members of the community are thus entitled to see that the justice system works fairly, efficiently and with reasonable dispatch. The very reasonable concern and alarm of the community which naturally arises from acts of crime cannot be assuaged until the trial has taken place. The trial not only resolves the guilt or innocence of the individual, but acts as a reassurance to the community that serious crimes are investigated and that those implicated are brought to trial and dealt with according to the law.

[95] As with any public institution, the justice system must be accountable to the public for its performance (although not for the popularity of its decisions). As I have said, one effect of the Lahiry form of analysis is that it, in essence, deflects a portion, often a significant portion, of the cause for delays away from the courts as a public institution onto the shoulders of defence counsel. The result is that the public is provided with a distorted picture of the causes of delay. This distortion, in turn, means that the public cannot properly evaluate the timeliness of the court system as a public institution funded by the taxpayers and direct proper criticism, if criticism is warranted, to the true source of the problem. Public criticism is, of course, an invaluable tool in shaping government action and government priorities. The importance of public criticism was also commented on in Askov, where Cory J. said, at pp. 1225-1226:

Where inordinate delays do occur, it is those who are responsible for the lack of facilities who should bear the public criticism that is bound to arise as a result of the staying of proceedings which must be the inevitable consequence of unreasonable delays. Members of the community will not and should not condone or accept a situation where those alleged to have committed serious crimes are never brought to trial solely as a result of unduly long delays. It is a serious consequence with potentially dangerous overtones for the community. It is right and proper that there be criticism of the situation when it occurs.

[96] I recognize that this disagreement over the proper approach to the allocation of delay may be more principled than practical since I accept that, in the end result, the availability of counsel must nonetheless be considered in determining the reasonableness of the period of delay. If an accused person retains a particular counsel who is very busy and who, consequently, is unable to take up early dates (assuming such dates are available) then that accused person cannot, in fairness, subsequently complain about the delays that result.

[97] Nevertheless, I believe that the principle is an important one. Indeed, I would suggest that if the true availability of dates within the court system is not clearly identified and exposed, and given its proper place among the different causes of delay, then the consideration of the effect of institutional delay under the s. 11(b) analysis risks becoming meaningless. All institutional delay becomes obscured by other considerations. The illumination of the causes for delay never shines on failings within the justice system to provide timely dates. Those delays become an accepted fact of life, a result that Lamer J. warned against in R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 935:

It is imperative, however, that in recognizing the need for such a criterion we do not simply legitimize current and future delays resulting from inadequate institutional resources. For the criterion of institutional resources, more than any other, threatens to become a source of justification for prolonged and unacceptable delay. There must, therefore, be some limit to which inadequate resources can be used to excuse delay and impair the interests of the individual.

[98] It seems to me to be preferable, therefore, to clearly delineate the full period of time for which the courts are unable to provide dates for preliminary hearings or for trials and to characterize that delay in the s. 11(b) analysis for what it is, institutional delay. It may, at a later stage of the analysis, be entirely proper to consider defence counsel’s availability in determining whether the total period of delay is reasonable but the two considerations should, to the degree possible, be kept separate and distinct.

C. Balancing

[99] Finally, the problems that delay causes for the accused person must be balanced against the community’s interest in seeing that criminal charges are disposed of in a timely manner. The fact that there must be a balancing between these competing objectives means that there can be no hard and fast rule as to when delay passes from reasonable delay to unreasonable delay. As the Court of Appeal observed in R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.) at para 26:

The determination of what constitutes a ‘reasonable’ time for trial under s. 11(b) of the Charter is fact driven and case specific.

[100] It is accepted that the community’s interest in seeing that persons are properly tried on any criminal charge increases as the seriousness of the charge increases. I recognize that the charges in this case are serious but, then again, almost all charges that this court deals with are serious ones. Further, the balancing aspect of the s. 11(b) analysis recognizes that criminal offences involve differing degrees of seriousness. Notwithstanding that these are serious charges, they are not the most serious charges under the Criminal Code.

[101] That said, the period of delay in this case beyond that for which either the defence is responsible or that involved the inherent time requirements of the case, and thus may be considered unreasonable, is only one month beyond the outer limits of the Morin guidelines. In my view, notwithstanding the prejudice that the accused have suffered as a consequence of the overall delay, that relatively short period of unreasonable delay is greatly outweighed by the societal interest in having these fairly serious charges determined on their merits.

[102] As a consequence, I have concluded that the applicants’ rights under s. 11(b) of

the Charter have not been infringed. The application is dismissed.

NORDHEIMER J.

Released: April 2, 2013

COURT FILE NO.: 7-388/12

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

- and -

PATRICK SIKORSKI

and

DANIEL GRIFFITHS

Applicants

REASONS FOR DECISION

NORDHEIMER J.

RELEASED:

[^1]: By way of example, I note that three discs of disclosure were delivered by the Crown on August 9, 2011.

[^2]: On that point, I asked a law clerk to review all of the s. 11(b) cases in the Court of Appeal over the past five years. That analysis found that in only twenty percent (8 out of 38 cases) were stays granted. In the cases where stays were denied, the average period of delay was 38 months.

[^3]: Mr. Sikorski was twenty-four when he was arrested. He is now twenty-seven. Mr. Griffiths was twenty-six when he was arrested. He is now thirty.

[^4]: see, for example, the references in R. v. Askov at pp. 1221-1222.

[^5]: I am aware that the decision in Lahiry is referred to in R. v. Tran (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177 (Ont. C.A.) at para. 32 but the decision in Tran does not, in my view, address the analytical issue that I am raising here.

[^6]: Indeed, a higher claim to public funds might be advanced since the obligation to properly fund the justice system is a constitutional one, unlike the funding of other programs – a distinction that was noted in Morin at p. 795.