COURT FILE NO.: CRIM J(P) 1694/12 (Brampton)
DATE: 2013 10 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Carson M. Coughlin, counsel for the Crown/Respondent (on this Application only)
Respondent
- and -
WARSAME DUALE
Dean F. Embry, counsel for the Applicant/Accused
Applicant
HEARD: Section 11(b) and 24(1) Application argued at Brampton, Friday, September 13, 2013.
REASONS FOR DECISION
The Honourable Justice Herold
[1] Warsame Duale is charged with a very serious Part V Criminal Code offence, namely, invitation to sexual touching, contrary to s. 152. On September 13th, I heard his application pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms for an order staying these proceedings; the application is opposed by the Crown. At the conclusion of a full day of very thorough and helpful argument, I reserved judgment and remanded Mr. Duale to Tuesday, October 1st, at 9:00 a.m., to receive my decision and reasons for it. These are those reasons.
[2] On December 15, 2010, J.L., a person under the age of sixteen years (in fact, twelve at the time), was using a public computer in the Mississauga Library. It is alleged that on that afternoon, Warsame Duale did, for a sexual purpose, invite J.L. to touch directly with a part of his body, the body of Warsame Duale, contrary to s. 152 of the Criminal Code. Mr. Duale was investigated, provided a statement (the admissibility of which is in issue) and was arrested on December 17, 2010, the date on which the applicant started the “Askov clock”. The Crown correctly points out that the current state of the law is such that the clock should only start to run on January 13, 2011, when the formal Information was sworn, notwithstanding the fact that the applicant was arrested, interrogated, charged and released on a Promise to Appear almost a month earlier, and I have used the Crown’s starting date for the purposes of my analysis.
[3] It is unnecessary to get into the specifics of the allegation against Mr. Duale other than to say that it was one which would be particularly disturbing to a twelve year old boy and is one which society has a very legitimate interest in seeing fully and fairly prosecuted. It would appear, at least for present purposes, that there are two aspects to the defence (other than, of course, the usual presumption of innocence and the requirement that the Crown prove each and every essential ingredient of the allegations beyond a reasonable doubt) namely, identity and a question of who was the intended recipient of an invitation. Not only does society have an interest in the prosecution of this matter – having been publicly charged, Mr. Duale also has an interest in seeing it prosecuted to its conclusion which from his perspective, would be a different conclusion than that anticipated by the Crown Attorney who has carriage of this file. I pause here to note that the assigned Crown, who has had this file since its inception, was not available to argue the s. 11(b) application, the brief for which was handed to Mr. Coughlin at the eleventh hour. In support of this application for a stay of proceedings, Mr. Duale relies on the affidavit found at tab 4 of his Application Record, an identical but sworn copy of which was filed at the time of the hearing. Both the applicant and the respondent also rely on the exhibits contained in the applicant’s Application Record in connection with an application for adjournment, which was filed and granted on December 7, 2012, and in particular, the numerous exhibits attached to the affidavit of one of defence counsel’s associates. In addition, the affidavit of another associate, contained at tab 5 of the s. 11(b) Application Record, is relied upon with respect to certain dates in defence counsel’s calendar.
[4] In an application to enforce one’s rights pursuant to the Charter, the applicant bears the onus on a balance of probabilities. While the legal onus never changes, the practical reality is that when the evidence available to be scrutinized at the hearing of the application is being considered, one might well ask (as we all did during the course of submissions) what might one of the investigating officers (Constable Chris MacDonald, Badge #2883) or the officer in charge, Constable Murphy, Badge #2137, have to say about all of this (“all of this” being what will be described later, namely, a very serious, significant and egregious breach of the prosecution’s disclosure obligation). It would perhaps be both appropriate and fair at this point to reinforce my observations during the course of submissions, namely, that the disclosure obligation does not rest solely on the shoulders of the Crown Attorney with carriage of the file, nor of the Crown Attorney’s Office. It begins with the member of the prosecution team who initially investigates the allegations, all of those involved in the investigation, the officer in charge, the office of the Crown Attorney and the Crown Attorney assigned carriage of the file. In this case, it is fair to infer from all of the evidence which is available to us that the breakdown occurred at sometime prior to the material landing in the Crown’s office. It has never been suggested that the Crown Attorney who has had carriage of this file almost from the outset, either negligently or intentionally failed to disclose any relevant information once it was received by him. And in any case, it has never been suggested that the failure to disclose was intentional. Finally, it has not been ignored and will be dealt with in due course, that the disclosure obligation is to some extent bilateral – the defence cannot sit in the woods and must exercise due diligence in pursuing relevant disclosure of which it is or should be aware.
[5] On the first appearance date, January 24, 2011, the Crown Attorney elected to proceed by Indictment and in due course, the accused elected to be tried by a judge with a jury following a preliminary inquiry. The preliminary inquiry was eventually conducted by Justice M. Speyer on January 30 and 31, 2012 (during the course of which, for the purposes of the preliminary inquiry, the accused’s statement of December 17, 2011, was ruled admissible). Following the conclusion of the preliminary inquiry, Mr. Duale was committed to stand trial in the Superior Court with a judge and jury, the Indictment was filed on or about February 13, 2012, and the matter was first dealt with in this court on February 17th. In due course, a trial date was scheduled – two days of pre-trial motions during the week of December 17, 2012, and the week of February 4, 2013, for the trial itself. When these dates were scheduled by Justice Fragomeni immediately following the pre-trial on April 11th, he remanded Mr. Duale to the December 7, 2012, trial readiness court and on December 6, 2012, defence counsel prepared an application for adjournment, the Application Record being served on the Crown and filed on December 7th, which application, based on the non-disclosure issue, was unopposed and granted.
[6] Although we will, of necessity, be getting into a little more detail shortly with respect to particular attendances and their impact, if any, on the Askov clock, it would be fair to say by way of overview, based on a review of the transcripts, a review of the written submissions including the facta filed in support of this application, and counsel’s submissions on the hearing of the application, that until the first trial dates had to be aborted, there were no s. 11(b) issues stated, expressly waived, nor even apparently contemplated. All things were unfolding as they should and as all who are involved in the administration of justice in Peel Region, defence, Crown, court staff and judiciary have been trying desperately to accomplish. This case appeared to be right on track and being within the 16 – 18 month guidelines, was raising no alarm bells whatsoever. Had it proceeded on the originally scheduled trial date of February 4, 2013, my rough calculations would suggest that approximately 16½ months of the time to trial would have been caused by Crown or institutional delay to that first trial date.
[7] As alluded to earlier, Mr. Duale filed an affidavit and on his behalf counsel filed two affidavits from associates in his firm. There were no affidavits filed by the Crown Attorney with carriage of the file. I note that the applicant’s Application Record and factum were served and filed on the morning of August 14, 2013, and the Crown seized of the file served and filed his responding material, including the responding record containing his factum, on August 28, 2013, well before the hearing date. Counsel who represented the Crown’s office on the hearing of this application cross-examined Mr. Duale on his affidavit at the hearing. The main thrust of the examination had to do with allegations of prejudice, real and inferred, with emphasis on the crucial issue, namely, whether the prejudice, even to the extent that it is demonstrated, arises from the delay and not from the charge itself. In connection with this issue of prejudice, it is useful to look briefly at this time at Mr. Duale’s personal history.
[8] Warsame Duale was born on April 14, 1983. He was 27 years of age at the time of his arrest and is presently 30 years of age. He is unemployed and resides in Mississauga. He has no criminal record and had never been charged with a criminal offence prior to this incident. Mr. Duale attended the University of Toronto (I believe at the main campus) and studied finance. In 2009, he was involved in two separate and unrelated incidents, as the victim in each case. In one case, he was sexually assaulted and in the other, he was the victim of a gang gay bashing. He suffered physically, emotionally and psychologically as a result of both, and if I understand his evidence correctly, was emotionally or psychologically fragile prior to the incidents and if I am incorrect, at least undoubtedly after them.
[9] Although his sworn affidavit might, possibly unintentionally, lead one to infer that his present situation with respect to unemployment and non-attendance at university are a direct result of the present matter before the court, cross-examination clarified that. Mr. Duale began his Finance Program at the University of Toronto main campus in the fall of 2007 and completed two years which would take him to the spring of 2009. The two incidents in which he was the victim occurred in 2009, and as he recovered from the effects of one or both of them, he has neither returned to school nor sought employment. His evidence, in cross-examination, was to the effect that at or about the time that he was charged in December 2010, he was ready to go back to school or seek employment or both, but the present charge put those intentions on hold. His explanation for not returning to school or seeking employment suggests that he must have misunderstood what was said to him at the time of his interrogation on December 17, 2010 (not surprising indeed) and in particular, at page 98 of the 100 page transcript of that interrogation. From what had been said to him, he claims to have understood that if he was going to apply back to university, he would have to disclose the existence of this charge, and if he were going to seek employment, he would either have to do so or the employer would in any case find out in the course of making the usual inquiries. Whatever the reason is or may be for his failure to get his life back on track in December of 2010, it can at its highest from the defence perspective be characterized as flowing from the charge itself. The prejudice which is relevant for the purposes of a s. 11(b) application is that which flows from the delay and not from the obvious and typical embarrassment arising out of having been charged with invitation to sexual touching. As I alluded to earlier, until December 7, 2012, there was no unusual delay and none which could enure to his benefit in this aspect of the analysis.
[10] It is his evidence, however, which certainly accords with one’s common sense, that he was both dreading, and optimistically anticipating, his trial date and all of the stress which that would entail, but eventually including his exoneration as he expected it. I do not, unfortunately, have a specific recollection nor a note of his exact words when he talked about the impact of the delay (he was a less than compelling witness as a result of his inability or refusal to deal only with the question asked of him, either in chief or in cross and his insistence on going on at great length in an apparent attempt to justify his position), but both his words and his demeanor as he talked about the impact of the delay of his day of reckoning were clear and obvious. He was devastated and forced back in to the depression from which he was seeking to climb out. Although he candidly admitted that he would never take positive steps to try to end his life, he did say somewhat poignantly and compellingly that he was then and has been at other times over the course of this matter of the view that it mattered not to him whether he lived or died.
[11] I am satisfied that there has been delay (both Crown and defence agree that the new target trial date of November 12, 2013, some 34 months after the Information was sworn and a month short of 3 years from the time when he was arrested attracts careful 11(b) scrutiny), and I am satisfied that to a large extent the prejudice which he has suffered flows from the delay which has exacerbated both his fragile condition prior to December 15, 2010, and his condition after the charge was laid and prior to the adjournment which had to be sought on December 7, 2012.
[12] The adjournment was sought on December 7, 2012, as a result of material non-disclosure by the prosecution. As I indicated earlier, one of the significant issues in this trial would be the identification of the perpetrator. The prosecution, in seeking to establish identity, relies to some extent on video surveillance which places the accused in the Mississauga Library in question on the date and at the approximate time of the alleged offence, and also relies quite substantially, it would seem, on statements made by the accused in the course of his interrogation on December 17, 2010. As already indicated, there is a voluntariness issue which will be the subject matter of a voir dire prior to the commencement of trial – a similar voir dire was resolved in the Crown’s favour for the purposes of the preliminary inquiry. A third piece of potentially helpful evidence to the Crown (if not too prejudicial) was found on a computer at the Mississauga Library said to have been used by the accused. Computer #16 was seized by the police on December 16th, the day after the alleged incident and the day prior to Mr. Duale’s arrest, and it was examined (we now know) by Peel Regional Police Constable Chris MacDonald of the Technical Crimes Unit on December 22, 2010. His file was opened at 8:14 that morning and closed at 1 minute after noon with a notation “finished search”. There is a second notation later that day “burn to disk and give to OIC (Officer in Charge Murphy) for his review – case closed unless further requests come in”. The next entry is at 2:30 p.m. on May 23, 2012, “Reopen case at request of OIC. Concentrate on Facebook chats. Re-run with new IEFV 5 looking for only Facebook chats.” And a final entry at 10:44 a.m. on August 2, 2012, “begin will state – adding spread sheet modifications into there”. These notes were given to the Peel Crown Attorney sometime on or about December 6, 2012, and immediately forwarded to defence counsel, precipitating an application which was hurriedly put together, served and filed the next morning, and permitted to go unopposed (for reasons which should be obvious to all).
[13] Until a letter was sent to defence counsel by the assigned Crown by fax on October 22, 2012, in response to one sent by defence to Crown on October 19, 2012, the defence did not know:
(a) That a person such as Constable Chris MacDonald even existed;
(b) That Constable Chris MacDonald was involved with the Technical Crimes Unit of the Peel Regional Police;
(c) That Constable Chris MacDonald had performed some examination of the computer;
(d) That Constable Chris MacDonald had prepared a report;
(e) That Constable Chris MacDonald had made notes of his involvement, and
(f) That Constable Chris MacDonald had prepared a will say statement.
[14] None of this information or material had ever been disclosed by the prosecution to the defence until October 22nd, and it came in in fits and starts between October 22nd and December 6th after the mud had started to hit the fan.
[15] Obviously then, the Crown had not called (I am reluctant to say chose not to call since I have no idea what may or may not have been told to him by the investigating officer or the officer in charge) Constable MacDonald as a witness with respect to the issue of identification at the preliminary hearing, although identification was obviously in issue.
[16] As indicated earlier, the continuing obligation with respect to disclosure does not consist of a one-way street. The defence cannot lay in the weeds and pounce opportunistically with respect to something known to them to exist which they chose not to insist upon until the last minute. Similarly, if they know or ought to know, for whatever demonstrable reason, that there is or could be a piece of relevant evidence that is not yet available to them, they must make inquiries. As indicated above, at no time was the existence, the efforts, the notes, the reports or otherwise of Constable MacDonald ever disclosed to the defence until late October 2012, and thereafter. There were, however, two little hints, one of which was more apparent than the other which might have put the defence on notice.
[17] During the course of argument (indeed at the morning break), counsel located a document entitled “Region of Peel Case Management Crown Brief Index Form” which is basically a cover page for disclosure which is being provided. This document was dated January 25, 2011, the day after the first appearance in the Ontario Court and signed by the officer in charge Constable Murphy, #2137. It indicates that it was given to the defence in connection with the disclosure of something connected to the involvement of a Crown witness Donna Cardiff. That is really the operative part of the document but there is below that the following notation “additional material to follow – x – yes” and somewhat below that “computer examination – ‘Facebook live’ chats”.
[18] In connection with the pre-trial held in the Superior Court on April 11, 2012, the Crown pre-trial brief indicated that a “tech crimes report re analysis of computer equipment” was outstanding and forthcoming. That clearly indicated that the Crown seized of the file knew by then that there was relevance to this material and that it existed but suggested, probably accurately so, that it was not yet in the possession of the assigned Crown (notwithstanding what we now know to be its obviously dated nature).
[19] On October 19, 2012, defence counsel wrote to the assigned Crown advising that he was embarking upon the process of preparing his material with respect to the pre-trial motions which were then two months away, and made certain requests. Surely, one would not suggest (nor did anyone do so) that waiting until two months prior to the pre-trial motions to begin serious preparation was in any way inappropriate. The exchange of correspondence is found in the application for adjournment Application Record at tabs 2 A, B, D, E, G, H, J and K with other tabs attaching as exhibits the documents referred to therein. A fair summary of that correspondence and the enclosures clearly indicates that the prosecution team was then scrambling to make disclosure of clearly relevant, and not at all new material, to permit the then assigned Crown to attend at the trial scheduling court on December 7, 2012, with as little egg on his face as possible, to say, as he did, after hearing the defence submission to Justice Durno, that he was not opposing the request for the adjournment; he also said that he did not necessarily agree with everything that defence counsel said in support of his position, but then added somewhat surprisingly (repeated in his factum but thankfully not in the submissions of counsel on the hearing of the application) that with respect to 11(b), “I would take the position that this adjournment and any delay to result lie at the feet of defence rather than at the feet of the Crown.”
[20] As I had told counsel at the commencement of the argument, after having reviewed all of the excellent material carefully, I had two observations, namely:
(a) This was the first s. 11(b) application I have had an opportunity to consider in which the Crown had taken responsibility for zero days of delay – surely a feat which would ring the bell, and
(b) That my initial inclination was that everything following December 7, 2012, would have to be laid at the feet of the Crown.
[21] As a result of some excellent submissions and absolutely fair and appropriate concessions made by Mr. Coughlin during the course of the hearing, I knew that my initial view set out in subparagraph (b) above was incorrect, and that this application was going to require a much closer analysis than I originally anticipated.
[22] I shall now attempt to go through the analysis one is required to undertake in order to conclude (before taking into account the other factors one must consider in determining whether or not to grant the drastic remedy of a stay) whether or not the guidelines of 16 to 18 months of Crown/institutional delay have been exceeded, and if so, the appropriate remedy.
[23] As one goes through the analysis, sometimes not terribly unlike attempting to count the number of angels dancing on the head of a pin, one is often required to attribute a proportionality factor between and amongst inherent delay, institutional delay, Crown delay, defence delay, etcetera. To say that the percentages applied are sometimes arbitrary would be an understatement, notwithstanding the great effort that has been made and continues to be made in the jurisprudence to explain how and why these percentages should be fixed. The percentage which is particularly relevant for my present purposes is whether or not the assigned Crown was even remotely close to the mark on December 7, 2012, when he said that the consequences of any delay should lie entirely at the feet of the defence rather than at the feet of the Crown. In performing this exercise, I take any fault attributable to the investigating officer or the officer in charge or anyone in the chain of command prior to the involvement of the Crown Attorney’s office as being part of the Crown responsibility, and it is for that reason that I generally try to refer to the duty to disclose being on the prosecution rather than the Crown. Although I am not sure what exactly the assigned Crown meant when he made the statement he did, I am certain that he would not have meant to suggest that any fault attributable to the investigating officer and the officer in charge should be laid at the feet of the defence.
[24] The material clearly indicates that identification has been and will continue to be a significant issue. It indicates that as early as one day after the alleged offence, it was deemed appropriate, and indeed eventually useful, to examine the contents of computer #16 in connection with that issue, among others. It is clear that results potentially helpful to the prosecution case were obtained and recorded within days of the alleged incident, and there never has been nor could there be any suggestion that this information was not clearly and significantly relevant. I do not intend to repeat the litany of what was known to the prosecution but never disclosed to the defence (and quite likely never to the assigned Crown) until after the defence began preparations in earnest two months prior to the pre-trial motions. What possible fault can be laid at the feet of the defence? There are two possibilities – the remarks contained in the Crown Brief Index Form of January 25, 2011, and in the Crown brief for the Superior Court judicial pre-trial of April 11, 2012. Both of those indicated the possible existence of some documentation but both of them also clearly indicated that disclosure of them was going to follow. At what point can one reasonably be faulted for no longer relying on the assurance of an officer in charge of a criminal investigation and/or the assurance of the assigned Crown Attorney in his pre-trial brief to the court that indeed specific disclosure will follow? A cynic might suggest that there are two different answers to that two-part question, but I am prepared for the purposes of these reasons to assume that there is only one answer – at or about the time that defence counsel was preparing for the pre-trial motions in October of 2012. One might argue that the hard to find but clearly present comment on the Crown Brief Index Form of January 25, 2011, might have generated some interest prior to the preliminary hearing, and I do not ignore that possibility in assigning responsibility for the dropped disclosure ball, 90 percent to the Crown and 10 percent to the defence and that is the number that I will use, along with some other criteria that I will discuss as required in trying to determine at whose feet delays after December 7, 2012, should be laid.
[25] With these comments in mind, I will look at the helpful charts that were provided in the facta filed for the hearing. Counsel and I found it easiest to work with the chart prepared by the defence found at Appendix A, page 24, of its factum. The defence calculated that the total time which elapsed between the date of arrest, December 17, 2010, and the date of commencement of the new trial, November 12, 2013, would be 1,068 days. I agree with Crown Counsel that present case law with respect to the starting date requires us to use not when the accused was interrogated, arrested, and released on his undertaking, but rather the date when a formal Information was put before the court, namely, January 13, 2011, and I, therefore, calculate a total of 1,041 days or 34.7 months.
[26] Neither Mr. Embry for the defence, Mr. Coughlin for the Crown, nor I, attribute any delay, up to and including July 4, 2011, to either institutional or Crown responsibility. On June 16, 2011, a preliminary hearing date was scheduled for January 30, 2012. There is nothing in the material to suggest that this was other than a typical adjournment to a preliminary hearing to accommodate institutional resources, but the defence fairly concedes that counsel was unavailable prior to July 4, 2011, and calculates 210 days of institutional delay which I accept as accurate.
[27] A couple of weeks of inherent delay took place between the end of the preliminary and the first appearance in the Superior Court on February 17th (quite frankly impressively quick in Peel Region), and on February 17th a Superior Court judicial pre-trial was scheduled for April 11, 2012. The defence seeks to attribute one-half of that time to institutional delay and one-half to inherent delay. The Crown suggests all is inherent. A careful reading of the transcript suggests the defence was available to do a pre-trial much earlier on March 12th, but the court could not accommodate that date, so I look at the time from February 17 to March 12 as inherent and seeing the efforts that were made unsuccessfully to match up defence counsel’s available dates with the court’s available dates, I attribute one-half of the remaining 30 days equally to inherent and institutional and add 15 days to the institutional delay category.
[28] The pre-trial was held on April 11th, and immediately thereafter, the trial date was scheduled for December 7th. The defence concedes that of the period between April 11th and December 7th, 30 days would be required for trial preparation and 210 days should be attributed to institutional delay. There is nothing in the material nor in the submissions made which would suggest that the 210 days is anything other than institutional, and I have put it into that column.
[29] Between December 7, 2012, and January 10, 2013, the assigned Crown was scrambling to try to patch up the disclosure problem and all agree that those 34 days are attributable to the Crown. The defence concedes that 29 days between January 10th and February 8th, when it tried to get approval for the retention of an expert and finding an expert, are attributable to the defence but suggests that February 8th to March 8th should be attributable to the Crown. Crown counsel argues, a submission with which I agree, that there was no reason why the defence could not and should not have set a date as is often done at the February 8th appearance subject to the contingency that it might have to be readjusted if the expert’s availability or schedule became problematic. Bearing in mind the clock which was now running loudly, I agree that the defence failure to set a date at that time, when invited to do so, should be considered as an implied waiver, and I attribute no delay during that period to either the Crown or the institution.
[30] The next significant period of delay is between March 8, 2013, when the new trial date was set, and November 12, 2013, the new date scheduled for the trial. This was a total of 189 days. Crown counsel suggests that it is possible that an earlier date might have been secured if, when the mud hit the fan on December 7th, or when the consequences of it were more apparent on January 10th, or later on February 8th, when Justice Durno again asked if a date could be set, the defence was prepared to do so, but we simply don’t know what days, if any, might have been offered on those earlier occasions. We do know that when the trial date was finally being set, August 6, 2013, was offered but unavailable to the defence, another date in September was offered but similarly unavailable, and October 16th was offered but not available to the Crown. There are 71 days between August 6th and October 16th of which half might simply reflect the fact that experienced counsel have busy schedules and half might be laid at the feet of the defence. I, therefore, deduct 36 days from the 189 and come up with 153 days which might be considered institutional delay.
[31] For the reasons discussed earlier, I attribute 90% of that to the Crown and include the number 137 days for institutional delay.
[32] If my arithmetic is correct, I have 210, plus 15, plus 210, plus 34, plus 137, a total of 606 days of Crown or institutional delay, slightly over 20 months. This exceeds the top end of the guidelines (and I do not ignore the fact that they are guidelines) by slightly more than 2 months. I have already made deductions to reflect implied waiver – there was no expressed waiver – and I have provided some brief reasons for my finding that Mr. Daule has suffered both inferred and real or actual prejudice as a result of the delay over and above that one would expect from the charge itself being laid against him. It may be possible, and indeed it is quite likely, that the impact on Warsame Duale, because of his pre-existing fragile, emotional and/or psychological state was more significant than it might have been on another accused person, but we surely must take our accused applicant as we find him unless of course he is solely responsible for the creation, or continued existence, of that fragile state.
[33] One might be looking at these reasons and ask, “Never mind the poor accused, what about the poor complainant?”, a fair and appropriate observation. The complainant in this matter, and society in general, have a significant and justifiable interest in seeing that allegations of this sort are fairly, forcefully and efficiently prosecuted to and through a finding of guilt or innocence at trial. Although Justice Cory in Askov referred to the exquisite agony of an accused awaiting his trial date, there can be no doubt that a twelve year old boy waiting to testify at a jury trial only to be told that his day in court is being delayed is equally troubled by that delay and his genuine and legitimate interest in a forceful, fair and efficient prosecution would not have been met. Indeed, it is hard to imagine that anyone involved in a criminal case, other than of course those trying to engineer an 11(b) issue, can really feel anything other than chagrin when the day of reckoning must be delayed.
[34] Having done the best I can to assess the length of the delay, the possibility that any time periods were expressly or impliedly waived, the explanations for the delay including inherent time requirements, conduct of Crown and defence, institutional limits or other reasons, real or inferred prejudice to the accused and society’s interest in prosecuting serious allegations, I have concluded that the rights guaranteed to all persons accused of criminal offences by s. 11(b) of the Charter have been violated in this case. Although Crown counsel quite accurately points out that the remedy sought, namely, termination of proceedings without a trial on the merits is a drastic remedy appropriate in the most serious of cases, it is the one provided for by the jurisprudence. It is one which, it has been determined, is usually appropriate to redress the harm done as a result of a s. 11(b) Charter breach, and I can think of no other remedy which would, in the circumstances (or indeed, in most circumstances) of delay be more appropriate, and it is one which, in my view, should be applied in this case. Accordingly, the application for a stay of proceedings is granted.
[35] I do not wish to leave these reasons without commending both counsel who appeared on September 13th for their excellent advocacy, including in Mr. Embry’s case his written submissions, but also singling out the efforts of Mr. Coughlin on behalf of the Crown. A very short time prior to September 13th, a matter of days, he was handed what might colloquially be described as a factual bag of dirt. He was also required to base his submissions on a factum which was, even appreciating the adversarial system, less balanced than one might have hoped for. I have already referred, at the beginning of these reasons, to my initial reaction to the assigned Crown’s refusal in written submissions to accept any blame whatsoever for the delay, repeating the position he took at the time the adjournment was granted on an unopposed basis on December 7th. Mr. Coughlin very fairly, without leaving his Crown colleague hanging out to dry, distanced himself from an insupportable position and by his compelling and even-handed argument caused me to give far more anxious consideration and
analysis to this application than I had originally thought would be necessary. So I thank both of them for their invaluable assistance.
"original signed by C.N. Herold J."
___________________________
Herold J.
Released: October 1, 2013
COURT FILE NO.: CRIM J(P) 1694/12 (Brampton)
DATE: 2013 10 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
WARSAME DUALE
Applicant
REASONS FOR DECISION
Herold J.
Released: October 1, 2013