ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 157/13 (Brampton)

DATE: 2013-09-06

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DEVON MCSHANE, DYLAN MCSHANE, and SEAN BEGBIE

Applicants

Aimee Gauthier, for the Crown

Mitchell Chernovsky, for Dylan McShane

Christopher Morris for Devon McShane

Robb MacDonald for Sean Begbie

HEARD: August 16, 2013

REASONS FOR JUDGMENT

GRAY J.

[1] This is an application under s.24 (1) of the Canadian Charter of Rights and Freedoms alleging a violation of s.11 (b) of the Charter. It is alleged that there has been unreasonable delay in bringing the accused to trial, and what is sought is an order staying the proceedings.

Background

[2] While all three accused are now charged in one indictment, Sean Begbie was originally charged separately from the McShanes. The explanation given in evidence by Jason Unsworth, the officer in charge of the case, was that the police could not get hold of Mr. Begbie, and thus charged him later. He was actually charged 4 days after the McShanes were arrested.

[3] The alleged circumstances giving rise to the offences occurred in early August, 2009. It is alleged that all three accused participated in sexual assaults on the complainant. A statement by the complainant was given to the police on August 10, 2009, naming all three accused. DNA analysis was complete by June 29, 2010. Dylan McShane and Devon McShane were arrested on June 23, 2011, and Sean Begbie was arrested on June 27, 2011. The time between the circumstances giving rise to the offences, and the charging of the accused, was approximately 23 months.

[4] I pause at this point to note that all counsel acknowledge that pre-charge delay does not factor into the calculation of unreasonable delay under s.11(b) of the Charter. However, it may have an impact on the analysis of whether some of the other periods of delay, after the laying of the charges, were unreasonable.

[5] The McShanes attended in the Ontario Court of Justice on July 4, 2011 where some preliminary disclosure was provided. On July 25, 2011, they attended again, requested further disclosure, and set a date for a judicial pre-trial.

[6] Mr. Begbie attended on at least 5 occasions between August 15, 2011 and October 31, 2011 and requested disclosure. None was provided until November 15, 2011.

[7] The McShanes appeared for the scheduled pre-trial on September 22, 2011. However, disclosure had not been made apart from the initial disclosure, and accordingly the judicial pre-trial did not proceed. It was re-scheduled for October 27, 2011. Disclosure was provided just before the judicial pre-trial was to be held on October 27, 2011, and accordingly the judicial pre-trial did not proceed on that date.

[8] Mr. Begbie and the McShanes appeared together on November 7, 2011, and thereafter the matters were pursued jointly.

[9] On November 16, 2011, a judicial pre-trial was finally conducted and a two-day preliminary inquiry was scheduled for August 9, 2012 and September 5, 2012.

[10] The preliminary inquiry proceeded on August 9, 2012, but on September 5, 2012, it did not proceed because another case was scheduled for the same day in the same courtroom and the Crown gave priority to that case. Accordingly, the preliminary inquiry was rescheduled to continue on March 5, 2013 and March 11, 2013. Counsel actually attended before the preliminary inquiry judge on October 22, 2012 to see if an earlier date could be secured, but that attempt was unsuccessful.

[11] The preliminary inquiry proceeded on March 5, 2013 and March 11, 2013, and was concluded. The accused were committed for trial in Superior Court.

[12] The first attendance in Superior Court was on April 5, 2013. A judicial pre-trial occurred two weeks later on April 19, 2013, and the trial was scheduled to commence on October 15, 2013, for two weeks.

[13] The earliest trial date offered was August 6, 2013. However, because this application under s.11(b) was being brought, the court required that a proper application record be served and filed, and the application heard before the commencement of trial. Thus, while this application was heard on August 16, 2013, the trial was not scheduled to commence until October 15, 2013.

[14] As noted earlier, Officer Unsworth, the officer in charge of the case, testified before me. He acknowledged that after the completion of the DNA analysis, there was no further investigation until the charges were laid in June, 2011. He acknowledged that all material required for disclosure was available at least 15 months prior to the charges being laid. While he asserted that a complex disclosure brief was required in this case, he acknowledged that all that was required was to copy the various statements and reports, including the DNA analysis; reproduce any notes of police officers and others; organize the material and prepare a chronology and index; and place them into a binder. Any statements given by video could be reproduced on DVDs for disclosure.

[15] In addition to the material that was available in 2010, there were some subsequent emails from the complainant which were disclosed in 2012.

[16] Affidavits were filed by each accused outlining alleged prejudice arising from delay. I will outline that material later.

Submissions

[17] Counsel for the accused submit that there has been unreasonable delay in bringing the accused to trial, and a stay of proceedings should be ordered.

[18] As noted earlier, counsel for the accused acknowledge that pre-charge delay is not directly relevant. However, counsel submit that it is relevant to the issue of whether the delay up to and including the holding of a judicial pre-trial was unreasonable, because the Crown was not in a position to make disclosure. Counsel submit that in this case disclosure should have been a simple matter, because the police had ample time before the laying of the charges to prepare any disclosure package that was required. Disclosure could have, and should have, been furnished to the accused on the first appearance in court. If that had occurred, a judicial pre-trial could have been scheduled almost immediately. Thus, some of what is normally considered neutral intake should be attributed to Crown delay or institutional delay prior to November 16, 2011, when the judicial pre-trial was finally conducted.

[19] Counsel submit that nine months between the date the preliminary inquiry was scheduled, and the date it actually commenced, must be considered institutional delay.

[20] Counsel submit that the delay between September 5, 2012 and March 5, 2013, arising from the Crown giving priority to another case, must be considered either Crown delay or institutional delay.

[21] Counsel also submit that the delay between August 6, 2013, the first date made available for trial in the Superior Court and October 15, 2013, the actual scheduled trial date, must be considered institutional delay. Counsel submit that they were prepared to argue the s.11(b) application at the outset of trial, but because of the court’s requirements, it had to be schedule prior to the trial itself, and accordingly the resulting delay must be regarded as institutional delay.

[22] In the result, counsel submit that the total institutional and Crown delay is 23 months, which is well outside the guidelines prescribed in R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.), of between 14 and 18 months.

[23] Counsel submit that in addition to the usual prejudice that flows from delay, there is specific prejudice here.

[24] While counsel acknowledge the seriousness of the charges, they submit that this cannot override the constitutional rights of the accused to be brought to trial within a reasonable time.

[25] Counsel for the Crown submits that this application should be dismissed.

[26] In argument before me, Ms. Gauthier acknowledged that disclosure took somewhat longer than it should have, and there is really no valid explanation for why it took as long as it did to lay the charges. However, she submitted in the circumstances the delay in fixing a judicial pre-trial was not extraordinary, and should be considered to be part of the inherent time requirements of the case. Thus, she submits, up until the date of the holding of the judicial pre-trial, on November 16, 2011, this was simply part of the normal intake period, and does not count against the Crown.

[27] In the alternative, Ms. Gauthier very fairly concedes that if some of this time must be counted against the Crown, it would be appropriate to allocate the time equally between the Crown and the defence. Thus, in that circumstance, two months and ten days should be counted against the Crown.

[28] Ms. Gauthier does not agree that the time between the fixing of the preliminary inquiry and the date it actually commenced should count entirely as institutional delay. She submits that some portion of this period must be considered part of the inherent time requirements of the case. She submits that it would be reasonable to regard two months of this period as part of the inherent time requirements of the case.

[29] Ms. Gauthier disagrees that the time to reschedule the preliminary inquiry to March 5, 2013 should be entirely considered institutional or Crown delay. She submits that it was unlikely that the preliminary inquiry could have been completed on September 5, 2012 and it is likely that the preliminary inquiry would have had to have been rescheduled in any event. Since March 5, 2013 was the earliest date available, at least part of the time must be considered neutral. She submits that in the circumstances two months should be considered neutral.

[30] Ms. Gauthier acknowledges that the period between April 19, 2013 and August 6, 2013 being the first date offered for trial in the Superior Court, must be considered institutional delay. However, she disagrees that the period between August 6, 2013 and October 15, 2013, the actual trial date, is institutional delay. That delay was necessitated because of the accuseds’ decision to bring an application under s.11(b) of the Charter, and the court’s normal requirements as how such an application is to be processed and heard are simply part of the inherent time requirements.

[31] In total, Ms. Gauthier submits that the institutional and Crown delay is 17 months and 18 days, which is within the guidelines. Accordingly, she submits that the application should be dismissed.

Analysis

[32] The starting point for any case under s.11(b) of the Charter is R. v. Morin, supra. At para. 31, Sopinka J. for the majority of the Court, listed the factors that are to be considered in analyzing how long is too long:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay including:

(a) inherent time requirements of the case,

(b) actions of the accused,

(c) actions of the Crown,

(d) limits on institutional resources, and

(e) other reasons for delay; and

4. prejudice to the accused.

[33] It is to be noted that the seriousness of the offence is not listed as a factor to be considered. Nevertheless, it does factor into the equation as part of the balancing exercise. I will have more to say about that later.

[34] It is necessary to assess the periods of time between the institution of the charges and the date fixed for trial, and allocate them to the periods identified by Sopinka J.

[35] Initially, the Court simply looks at the entire period of delay. If it is unexceptional, no further inquiry is warranted. In this case, the entire period of delay is about 27 ½ months. This is sufficient to require further analysis.

[36] The main points of disagreement are as follows:

(a) whether some portion of the delay between the laying of the charges and the holding of the judicial pre-trial should be regarded as delay attributable to the Crown;

(b) whether the entire period between the date the preliminary inquiry was set, to the date it was held, was institutional delay;

(c) whether the entire delay between the second date fixed for the preliminary inquiry and the resumed date should be regarded as institutional or Crown delay;

(d) whether the date between the first date offered for trial in the Superior Court and the date it was actually scheduled to be heard should be regarded as institutional delay.

[37] As to the first period, I accept the Crown’s suggestion that the period between the laying of the charges and the holding of the judicial pre-trial should be divided between the Crown and the defence. The delay in holding a judicial pre-trial was primarily caused by the delay in disclosure. While delay in disclosure will not necessarily justify holding up the progress of the case, in this case it was not unreasonable to have a significant degree of disclosure in order that a meaningful pre-trial could be held. Indeed, that was suggested by one of the Justices of the Peace. On September 12, 2011, the Justice stated “well, how can you set a judicial pre-trial if you don’t have disclosure?”, and later stated “the judicial pre-trial should be meaningful so that someone can get disclosure and have enough time to review the matter and prepare for a judicial pre-trial.”

[38] As noted earlier, the pre-charge period of delay is not directly relevant, but can affect the Court’s assessment of some of the other periods of delay. As stated by Sopinka J. in Morin, supra, at para. 35, “pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself it is not counted in determining the length of the delay.”

[39] In some cases, because of the complexity of the issues and the number of documents to be disclosed, pre-charge delay will have no impact on the reasonableness of other time periods, such as the intake period: see R. v. Schertzer (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 (Ont. C.A.) at paras. 54 and 55.

[40] In this case, however, there was and is no excuse for delayed disclosure. The police had ample opportunity to prepare whatever disclosure package was required, and it should have been made available very shortly after the charges were laid.

[41] I accept the Crown’s suggestion that two months and ten days be allocated to Crown/institutional delay.

[42] With respect to the period between the date of fixing the preliminary inquiry and the date it commenced, I disagree that the entire period should be considered to be institutional delay. In my view, some portion of that period must be considered to be part of the inherent time requirements of the case.

[43] Common sense would suggest that on the date the preliminary inquiry is scheduled, it is unlikely that the parties are able to start the preliminary inquiry immediately. I expect that if the Court were to offer the next day to commence the preliminary inquiry, none of the parties would be ready. In most cases, some preparation and normal scheduling will be required.

[44] This issue was dealt with extensively by Code J. in R. v. Lahiry (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525 (Ont. S.C.J.).

[45] At paras. 26-30, Code J. referred to R. v. Morin, supra; R. v. Sharma (1992), 1992 90 (SCC), 71 C.C.C. (3d) 184 (S.C.C.); R. v. M. (N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.); R. v. Schertzer, supra; and R. v. Khan (2011), 2011 ONCA 173, 270 C.C.C. (3d) 1 (Ont. C.A.). At para. 34 Code J. stated:

“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 twelve months in the future, then systemic congestion in the Court is the cause of only two months delay. The other ten months is delay is 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.”

[46] See also R. v. Nguyen (2013), 2013 ONCA 169, 303 O.A.C. 29 (C.A.) at paras. 79-83.

[47] In R. v. Sikorski, 2013 ONSC 1714, [2013] O.J. No.1654 (S.C.J.), Nordheimer J. expressed some disagreement with this approach. Commencing at para. 87, he outlined his reasons for disagreeing with the approach of Code J. in Lahiry. At para. 98, he stated “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.”

[48] With respect, I prefer the approach of Code J. in Lahiry. First of all, as noted by Code J., his approach appears to be mandated by appellate authority. Second, as noted, it defies common sense to assume counsel and the parties would be able to commence the preliminary inquiry or the trial immediately. Some period is required for normal scheduling and preparation.

[49] In this case, the Crown suggests that two months should be allocated to the inherent time requirements of the case. I think that suggestion is reasonable.

[50] The next issue is whether the entire period from September 5, 2012 to March 5, 2013 should be allocated to institutional delay. The Crown submits that some portion of that period should be considered to be part of the inherent time requirements of the case. Counsel submits that it is unlikely that the preliminary inquiry could have been completed on September 5, 2012, and the preliminary inquiry would have had to have been rescheduled in any event.

[51] With respect, I disagree. In my view it is entirely speculative to assume that the preliminary inquiry would not have been completed on September 5, 2012. It is more likely, in my view, that the parties would have adjusted their cross-examinations in order to make sure that the preliminary inquiry was completed within the time allotted. Simply because some additional time was taken on March 11, 2013 is not dispositive. The parties had scheduled two days in March 2013 when the preliminary inquiry had to be rescheduled. Having been given an additional two days, it is not surprising that the parties used the time allotted.

[52] In my view, the entire period between September 5, 2012 and March 5, 2013 must be allocated to the Crown or to institutional delay. The only reason September 5, 2012 was not used was because of scheduling issues and the fact that the Crown gave priority to another case. The defence has no responsibility for these issues, and the Crown must accept responsibility for the ensuing delay.

[53] The last period that requires analysis is the period from the date the trial was fixed in the Superior Court to the date the trial is scheduled to commence. The parties appeared on April 19, 2013 to fix the date for trial and the first date offered was August 6, 2013. Counsel for the accused were prepared to accept that date, but because they wished to bring this application under s.11(b), the trial was actually scheduled for October 15, 2013. The total delay is 6 months.

[54] As noted earlier, the Crown argued that the period from April 19, 2013 to August 6, 2013 (the first trial date offered) is institutional delay, and the period from August 6, 2013 to October 15, 2013 (the trial date) is inherent. The defence argues that the entire period is institutional delay.

[55] I do not agree with the position of either party. In my view, there is nothing unreasonable about the Court allocating some period for dealing with an application under s.11(b) in an orderly fashion. Thus, in my view, the entire period from April 19, 2013 to October 15, 2013 must be considered to be the time that was required in order to schedule the trial. Part of that time is inherent, and part is institutional delay. As was the case in the scheduling of the preliminary inquiry, I think it is reasonable to regard two months as inherent, and the balance as institutional delay.

[56] A summary of the time periods allocated to the Crown and/or institutional delay are as follows:

(a) Intake period – 2 months 10 days

(b) Time to schedule preliminary hearing – 6 months 3 weeks

(c) Time to reschedule preliminary hearing – 6 months

(d) Time to schedule trial – 4 months

TOTAL: 19 months

[57] This places the Crown and/or institutional delay just outside the maximum guideline of 18 months discussed in Morin. It is thus a close case. As is the case in any close case, the balance will be tipped one way or the other by the factor of prejudice, and by a consideration of the seriousness of the charge. I will discuss each of these in turn.

[58] As discussed in Morin at paras. 61-64, prejudice may be inferred, or may be established by evidence. Evidence may show prejudice to a liberty interest as a result of pre-trial incarceration or restrictive bail conditions, or may demonstrate prejudice to security interests by showing evidence of ongoing stress or damage to reputation or perhaps other factors.

[59] In this case, prejudice can be inferred, and is common to all accused who suffer delay. However, that sort of prejudice is not given much weight. It was not given much weight in Morin itself, and while the guidelines were exceeded in that case, the absence of specific prejudice resulted in the Court concluding that the appellant’s rights under s.11(b) were not violated.

[60] In this case, the accused have filed affidavits outlining what they say is actual prejudice. The claimed prejudice varies from accused to accused.

[61] Dylan McShane, in his affidavit, says he has had to miss work at times in order to attend court. He says he has had to decline certain lucrative contracts because he cannot reliably undertake that he will always be available for employment due to court commitments.

[62] Paragraphs 7 and 8 of Dylan McShane’s affidavit are as follows:

7. The delay in bringing my matter to trial has caused me significant emotional, and psychological stress. These charges carry significant stigma and the possibility of a substantial penalty if I am convicted. The charges weigh on my mind and I suffer from anxiety every time I think about it. This is exacerbated by the constant delay in prosecuting this case. I feel like my life is on hold and I cannot plan for the future.

8. Since being charged, I have been plagued by feelings of worry and helplessness since I do not know what the outcome of my charges will be, and I am unsure of what will happen in my immediate future, or my family’s, should I be convicted of an offence. As a result, I am unable to make definite plans for the future. The delay in having my matters brought to trial has made the past 13 months extremely difficult for me. My physical and mental health has suffered from the stresses in my having my trial delayed.

[63] It is fair to observe that most of the claimed prejudice is similar to the inherent prejudice that could be claimed by anyone charged with a criminal offence. Furthermore, much of the claimed prejudice flows from the charge itself as opposed to the delay in having it disposed of.

[64] I would characterize the prejudice claimed by Dylan McShane as at the low end of any scale.

[65] A somewhat greater degree of prejudice is claimed by Devon McShane. Paragraphs 8, 9 and 10 of his affidavit read as follows:

8. I have experienced a great deal of emotional and psychological stress and anxiety as my case dragged through the court system. I have lived with the constant uncertainty of not knowing what will happen with my life.

9. I have been involved in a relationship with Ms. Katrina Grdasic for approximately two years. We have been living together as common-law spouses for more than a year. We have discussed marriage and would both very much like to get married but all our plans, and in fact my entire life, is on hold pending the outcome of my charges. I have even avoided becoming involved with her family members rather than face the humiliation of having to explain the allegations I am facing. As a result, even though Ms. Grdasic has supported me in the face of these allegations, the delay in my case has caused significant stress in our relationship.

10. In addition, I would like to establish my own business, doing the type of work I have done for the past seven years. I believe I have the skill and ambition to be successful. I have been unable to do so as a result of the uncertain future I am facing. In this regard, the delay in my case has been a source of stress and anxiety.

[66] In Devon McShane’s case, in addition to the type of prejudice that would be inherent and common to most accused in a criminal case, he has suffered prejudice in terms of his relationship with his intended future spouse. He has also suffered some prejudice in being able to establish his own business, although he furnishes no particulars.

[67] An even stronger degree of prejudice is asserted by Sean Begbie. His affidavit is somewhat lengthy, and I will not repeat any of it verbatim.

[68] In his affidavit, Mr. Begbie describes a change in his mood and personality over time as the charges have been delayed. He testifies to a change in his relationships with others. Specifically, he testifies that he had been dating a woman for two years, but as a result of the delay in the charges being resolved he became depressed and suffered financial issues, as a result of which the woman broke up with him in October 2012.

[69] Mr. Begbie testifies that he lost his job after the charges were laid. He was only able to find temporary work to pay his debts and cover legal expenses. He found another job, but after the employer conducted a criminal check he was laid off.

[70] Mr. Begbie testifies that he borrowed money from his father, but eventually the debts strained his relationship with his father, and in November 2012 he moved to Alberta to live with his aunt and uncle. He commenced employment in February 2013, but because of his commitments to attend in court his hours were cut back and he had too few hours to make ends meet.

[71] Mr. Begbie testifies that he has testicular cancer, and when the charges were laid he was in a fragile state mentally and physically. He testifies that he has suffered from depression since the charges were laid.

[72] I would characterize Mr. Begbie’s degree of prejudice as being at the upper end of the scale.

[73] The Crown did not see fit to cross-examine any of the deponents on their affidavits. As a result, the evidence is untested and uncontradicted. Accordingly, no matter what degree of suspicion there might ordinarily be with respect to claimed prejudice, I do not think I can ignore affidavit evidence that is untested and uncontradicted.

[74] While the Crown/institutional delay in this case is modestly outside the guidelines, I think prejudice tips the balance in favour of staying the proceedings, unless the seriousness of the charges dictates otherwise.

[75] It would be theoretically possible to hold that since the prejudice to Dylan McShane is at the low end of the scale, his prosecution should be allowed to go ahead, while the charges against Devon McShane and Sean Begbie should be stayed. I do not think that is an appropriate approach. The question is whether there is sufficient prejudice, as a whole, to justify holding that the time taken to bring this matter to trial is unreasonable, having regard to the other factors discussed in Morin. In my view, there is sufficient prejudice to justify staying the proceedings, subject only to a consideration of the seriousness of the charges, to which I will now turn.

[76] As noted earlier, the seriousness of the charges is not a factor referred to in Morin. However, it is a circumstance that may affect the outcome to some extent.

[77] On one level, it would be easy to say that the more serious the charge, the less likely the court should be to give effect to unreasonable delay. As Sopinka J. noted in Morin at para. 30 “as the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.”

[78] However, the matter is not so simple.

[79] Very serious charges have been stayed as a result of unreasonable delay: see R. v. Thomson (2009), 2009 ONCA 771, 248 C.C.C. (3d) 477 (Ont. C.A.); R. v. Steele (2012), 2012 ONCA 383, 288 C.C.C. (3d) 255 (Ont. C.A.); R. v. Godin, 2009 SCC 26; and R v. Kporwodu (2005), 2005 11389 (ON CA), 75 O.R. (3d) 190 (C.A.). The charges stayed in those cases were aggravated assault (Thomson); robbery, use of an imitation firearm, and obstruction of a peace officer (Steele); sexual assault, unlawful confinement, and threatening (Godin); and second degree murder (Kprowodu).

[80] In each of those cases, the seriousness of the offences did not affect the result.

[81] In Thomson at para. 24 the Court stated:

“Although the appellant was charged with a very serious offence involving significant bodily harm, the seriousness of the charge is but one factor to consider and will not by itself justify what is otherwise an unreasonable delay: Kporwodu, at para. 192.”

[82] In Godin, at para. 41, Cromwell J. noted the strong societal interest in having serious charges tried on their merits. However he held that the progress of the case was delayed to such a degree that the appellant’s constitutional right to be tried within a reasonable time was violated.

[83] In Steele, at para.34, Rosenberg J. A. stated that the seriousness of the offence and the interest in the trial on the merits do not outweigh the other factors.

[84] In Kprowodu, the Court dealt in some detail with the issue of the seriousness of the offence, undoubtedly because of the very serious nature of that particular charge, murder. The following paragraphs of the Court’s judgment are instructive:

[191] First, there can be no question that the trial judge was alive to the seriousness of the offence. In the extract from the reasons quoted above, the trial judge expressly adverts to the seriousness of the offence, noting that balancing is particularly difficult when “the charge is a serious one such as murder’.

[192] Second, as the trial judge noted, the seriousness of the offence is not a separately enumerated factor to be considered in and of itself. There is no separate analysis of reasonableness in light of the seriousness of the offence. Rather, the seriousness of the offence must inform both the court’s consideration of each factor and balancing exercise.

[193] In making this statement, we wish also to respond to the suggestion that in the recent cases of Qureshi, supra, Seegmiller, supra, and R. v. Kovacs-Tatar (2004) 2004 42923 (ON CA), 73 O.R (3d) 161, [2004] O.J. No. 4756, 192 C.C.C. (3d) 91 (C.A.), this court treated the seriousness of the offence as an independent factor to be pitted against the interest of an accused. We do not read those cases as suggesting that some type of separate analysis is required for more serious offences. In each case, this court followed the analytical framework established in Morin, considered the four factors relevant to delay, and engaged in the requisite balancing process.

[194] Third, while society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that the trials for such offences are held in a timely fashion.

[195] Fourth, societal interests and the interests of an accused do not automatically conflict in a s.11(b) analysis. As referred to at the beginning of these reasons, Cory J. discussed the duality of the societal interest in having trials within reasonable times in Askov, supra, at pp. 1219-20 S.C.R., p. 474 C.C.C. as follows:

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.”

[85] In a different constitutional context, the Supreme Court of Canada has made it clear that the seriousness of the charge can cut two ways; see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; and R. v. Côté, 2011 SCC 46, [2011] S.C.J. 46 at para. 53, where it is stated, “While society has a greater interest in seeing a serious offence prosecuted, it has an equivalent interest in ensuring that the judicial system is above reproach, particularly when the stakes are high for the accused person”. This notion is similar to the approach taken by the Court of Appeal in Kporwodu at para. 194 where the Court stated, to repeat, “Third, while society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that the trials for such offences are held in a timely fashion”.

[86] I conclude that there has been unreasonable delay in bringing the accused to trial, and their rights under s.11(b) of the Charter have been violated.

Disposition

[87] For the foregoing reasons the proceedings are stayed.

[88] The trial readiness hearing on October 4, 2013, and the trial dates commencing October 15, 2013 are vacated.

Gray J.

Released: September 6, 2013

COURT FILE NO.: 157/13

DATE: 2013-09-06

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

DEVON MCSHANE, DYLAN MCSHANE and SEAN BEGBIE

Applicants

REASONS FOR JUDGMENT

GRAY J.

Released: September 6, 2013