R. v. Tyrell, 2013 ONSC 6518

COURT FILE NO.: CR-13-50000518-0000
DATE: 2013-07-29

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

R. Krueger, for the Respondent, Her Majesty the Queen

• and -

LEVAR TYRELL

Applicant

J. Erickson for the Applicant, Levar Tyrell

HEARD: July 22 to 25, 2013

Thorburn J.

R U L I N G

Application to Dismiss for Delay Pursuant to Section 11(b) of the Charter

I. OVERVIEW

[1] The Applicant, Levar Tyrell and his co-accused Omar Grizzle are charged with possession of two loaded prohibited firearms.

[2] Tyrell’s claims the 38 ½ month delay to bring this matter to trial is unreasonable for the following reasons: i) the case as against him is relatively straightforward and uncomplicated: he was found in an apartment when police executed a search warrant and seized two identical loaded firearms; ii) the Crown disclosure is a mere 1 ½ inches thick as it pertains to Tyrell; iii) the Crown knew or ought to have known that the case as against Tyrell was simple and straightforward and therefore severed his case from the others; and iv) the Crown decision to proceed against Tyrell alone resulted in lengthy and unacceptable delay in bringing this matter to trial.

[3] Tyrell seeks an order staying the prosecution on the basis that there has been a breach of his right to be tried within a reasonable time.

II. HISTORY OF THE CASE

Investigation and Arrests

[4] Project Corral was a lengthy police investigation which began in August 2009. The investigation involved hundreds of hours of police surveillance, tens of thousands of wiretap interceptions of private communications and other evidence. The subjects of this investigation were alleged members of three street gangs called the Five Points Generals, the Falstaff Crips and the Shower Posse, each of which the Crown alleges is a criminal organization. Tyrell’s co-accused in this proceeding, Omar Grizzle, was a target of that investigation.

[5] 78 people were arrested pursuant to this investigation after the execution of many search warrants on May 4, 2010.

[6] One of the residences searched was 2005 Eglinton Avenue West Apartment 309 in the City of Toronto. Omar Grizzle, the intended target of the investigation, was alleged to be a member of the Five Points Generals and wanted in relation to an armed robbery.

[7] When police executed the search warrant at 2005 Eglinton Avenue West Apt 309 at approximately 5 am, five people were found inside:

(a) Omar Grizzle was asleep on a sofa in the living room;

(b) Tonishia MacPhee had been sleeping in the master bedroom; and

(c) MacPhee’s two children (ages 19 months and 2 months) were asleep in the second bedroom; and

(d) Tyrell told police Tonishia MacPhee was his “girl”, the children were theirs and Omar Grizzle was a family member who had been staying there for a while.

[8] The apartment was leased by MacPhee’s parents for her use.

[9] Grizzle was arrested immediately upon entering the premises. Tyrell and MacPhee were not targets of the investigation as they had never been heard on the wiretap or other surveillance. As such they were detained in the living room while the search of the premises proceeded.

[10] During the execution of the search warrant, police found two identical loaded handguns with overcapacity magazines. One was in a suitcase found in the children’s bedroom and the other was found on the top shelf of a closet near the bathroom.

[11] Tyrell, MacPhee and Grizzle were arrested and charged with possession of the firearms. Grizzle was also charged with participating in a criminal organization.

[12] Tyrell and MacPhee have only ever been charged with offences relating to the possession of firearms found in the apartment.

Progress of the Legal Proceedings

[13] The progess in this proceeding can be divided into six stages:

Stage 1: Disclosure and Scheduling of Judicial Pre Trials (May 4, 2010 to February 15, 2011)

[14] Charges against Tyrell (and others) were laid on May 4, 2010.

[15] On May 11, 2010, the Crown provided Tyrell’s counsel with documents that summarized the charges against him.

[16] On May 14, 2010 Tyrell’s counsel wrote a letter seeking a list of categories of disclosure items.

[17] On June 14, 2010 there was a first global remand appearance for all project Corral accused. At that time the Crown provided a DVD which contained charts and logs relating to evidence seized during the execution of 99 search warrants including the one pertaining to Tyrell.

[18] A second global remand appearance took place on July 19, 2010. At that time the Crown provided 5 DVDs of disclosure most of which was not applicable to Tyrell and explained that more disclosure would be forthcoming.

[19] By September 10, 2010 Defence counsel in the Project Corral case had been provided with discs which contained the equivalent of approximately 92 ½ bankers’ boxes of disclosure. These discs contained all remaining search warrant packages, firearm reports and property charts. Much of this disclosure did not relate to Tyrell.

[20] On September 21, 2010 there was a global remand appearance for all accused in the Project Corral case. Bigelow J. expressed some concern about the delays in editing of the wiretap authorizations and stated that “I have said this in prior Projects and I will keep repeating it…I certainly understand the need for vetting but the procedure for vetting should be much simpler and more efficient than what I am seeing.”

[21] At this point 93 bankers’ boxes had been produced. The Crown was now receiving and reviewing the notes of 1,768 officers and 7,500 pages of notes. The issue of Judicial Pre Trials was also canvassed and the proposed grouping of accused persons was discussed. Counsel for one of the accused in Project Corral asked for a separate Judicial Pretrial and counsel for another advised that she would be seeking a severance application regarding her client. No such request was made by Tyrell’s counsel.

[22] On September 22, 2010 the Crown wrote a letter to each defence counsel to explain the pace of disclosure and assigned each accused to a group. Tyrell was put into Group C1 with MacPhee and Grizzle and 17 others.

[23] Also on September 22, Tyrell’s counsel was advised by the Crown that further disclosure would be forthcoming. On October 29, the Crown sent Tyrell’s counsel the search officer’s notes regarding the search pertaining to him, MacPhee and Grizzle.

[24] At no time during this period did Tyrell’s counsel complain to the Crown about the pace at which disclosure was being provided.

[25] On November 8, 2010 there was another global remand appearance and discussion about scheduling Judicial Pre Trials. Tyrell’s counsel stated that he wanted a Judicial Pre Trial to take place as soon as possible. He was placed in the earliest grouping to return on February 1, 2011. May and August 2011 dates were also held pending resolution of conflict issues. On February 1, Tyrell’s counsel was unable to be contacted and a return date was set for two weeks thereafter to see if he would be available to take the earliest available Pre Trial date on May 2, 2011.

Stage 2: Preliminary Inquiry (May 2 to December 8, 2011)

[26] On February 15, Tyrell’s counsel agreed to the May 2 date for Judicial Preliminary Inquiry.

[27] The Preliminary Hearing in this case took place on May 2, 3, 4, 5, 9, 10, 11, 12, 13, 17, 18, 19, 20, 30, 31, June 1, 3, 6, 7, 8, 9, 23, July 12, 25, 26, August 16, September 15 and November 25, 2011. The evidence regarding Tyrell was heard on May 11, 2011. There is no evidence that he sought committal before the end of the global Preliminary Inquiry. Tyrell was committed for trial on December 8, 2011. In the decision regarding committal, 49 of 353 pages were devoted to Tyrell.

Stage 3: Superior Court Intake (December 8, 2011 to February 15, 2012)

[28] The first appearance in Superior Court after the decision on committal was rendered on December 8, 2011 was January 18, 2012. On January 18, 2012 the Judicial Pre Trials were scheduled to commence on February 15, 2012.

Stage 4: Superior Court Judicial Pre Trials and Selection of First Trial Date (February 15 to April 26, 2012)

[29] From February 15 to April 26, 2012 Judicial Pre Trials were scheduled. On March 27, 2012 Tyrell’s counsel indicated that he wanted to set a date for trial as soon as possible after the co-accused Omar Grizzle was committed for trial which was expected after May 3, 2012.

Stage 5: Scheduling of First Trial Date (April 26 to November 13, 2012)

[30] At the April 26, 2012 Judicial Pre Trial, the Crown and Defence counsel for Tyrell selected a November 13, 2012 trial date. This date was selected because the ruling on the Project Corral Garofoli application was expected prior to that date. The Crown represented to the Court that “the three of us (counsel) have spoken and are agreeable to setting a three week judge and jury trial for November 12th.” Tyrell’s counsel expressly agreed with this, notwithstanding that none of the evidence against Tyrell arose from wiretaps. Tyrell’s counsel did not seek to sever his case from that of Grizzle.

[31] Tyrell had an interest in awaiting the outcome of the Garofoli application. Had the Garofoli application been successful, the search warrant would have been open to attack thereby enabling Tyrell’s counsel to argue that there had been an unreasonable search and seizure at the premises where Tyrell was found.

[32] A trial readiness hearing took place on September 19, 2012 at which time Tyrell’s counsel advised that he did not yet have transcripts of the Preliminary Hearing. As a result the matter was adjourned to October 17, 2012.

[33] The Crown advised that it decided to drop the charge of participating in a criminal organization against Grizzle so that the trial of Grizzle and Tyrell would be simpler and faster.

Stage 6: Notice of Certiorari Application by Grizzle and Selection of New Trial Date (November 13, 2012 to July 22, 2013)

[34] At the hearing that took place from October 17 to 19, 2012 Grizzle’s counsel advised that Grizzle had brought a certiorari application to quash the charges against him on the firearms and criminal organization charges. The trial against Grizzle could not proceed on November 13, 2012 as the certiorari application had not been resolved. The reasons of the Ontario Court of Justice regarding the certiorari application were not expected until November 13, 2012.

[35] Both the Crown and Tyrell’s counsel advised that they were content to proceed on November 13, 2012 and Tyrell’s counsel did not bring an application to sever his case from that of Grizzle. The Superior Court judge suggested trial dates of March and June 2013 but Tyrell’s counsel was not available on those dates and the trial was therefore set for July 22, 2013. Tyrell’s counsel brought this Application for dismissal for delay at the outset of trial.

III. THE LAW

3A. Protection Afforded by Section 11(b) of the Charter

[36] Section11 (b) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time.

[37] Section11 (b) of the Charter protects the individual’s right to liberty, security of the person and a fair trial. It also protects the public's interest in having laws enforced by having those who break the law tried promptly to invoke public confidence. This protects the public's interest in having those accused of crime dealt with fairly. (R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, at para. 30.) There is a “…collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.” (R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449 at p. 474 per Cory J. and R. v. Qureshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453, [2004] O.J. No. 4711 (C.A.), at para. 9.)

3B. The Factors to be Considered in Determining Whether there has been a Breach of Section 11(b) of the Charter

[38] The following factors must be considered on a Section 11(b) Charter application:

A. How long a delay has there been?

B. What are the reasons for the delay?

i. Inherent time requirements given the nature of the case;

ii. Actions of the accused including waiver of delay;

iii. Actions of the Crown including the Crown’s failure to provide adequate and timely disclosure to the defence;

iv. Limits on institutional resources; and

v. Other reasons for delay.

C. Has the accused suffered prejudice as a result as a result of the delay?

D. Finally, there must be a balancing of the societal interest in ensuring that the accused be brought to trial with the delay and reasons for delay to determine whether a stay of proceedings is warranted (R. v Morin 1992 89 (SCC), [1992] 1 S.C.R. 771 at paras. 30‑31).

[39] No one factor is determinative. All of the factors must be balanced in the circumstances of the case, having regard to the interests that section 11(b) of the Charter is designed to protect. The general approach to deciding whether or not the right has been denied is not by the application of a mathematical or administrative formula, but by a judicial determination that balances the interests the section is designed to protect against factors that cause the delay. Some delay is inevitable. At some point, the delay becomes unreasonable.

3C. The Process to be Followed

[40] In keeping with these requirements, the time taken to proceed to trial must be categorized. The reasons for delay are either inherent or neutral, (the fault of neither the Crown nor the Defence), time attributable to one side or the other, or institutional delay resulting from a lack of resources.

[41] In R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659 at p. 1674 l’Heureux‑Dube J. explained: “In deciding a claim made under s. 11(b) of the Charter, the correct approach is in my view to evaluate the reasonableness of the overall lapse of time. A piecemeal analysis is generally not appropriate…However, nothing prevents a court from focussing on specific time periods which may be significant in the overall assessment, as going to the weight to give to specific delays, as opposed to their reasonableness.”

[42] In determining whether the time delay warrants a stay of the proceedings, the following steps must be taken:

Step 1: Establishing the total length of delay and categorizing the reasons for delay

Inherent Time deemed to be Neutral

[43] In considering the total length of delay, the administrative guidelines suggest a “range of sixteen to eighteen months for a case that proceeds through both levels of court.” There should be no more than eight to ten months following the intake period to the completion of the preliminary inquiry and another six to eight months from committal to trial. (R. v. C.R.G., (2005), 2005 32192 (ON CA), 77 O.R. (3d) 308 at para. 19 (C.A.); R. v. Satkunananthan, 2001 24061 (ON CA), [2001] O.J. No. 1019 at para. 39 (C.A.) and N.N.M., 2006 14957 (ON CA), [2006] O.J. No. 1802 (C.A.) at para. 69). In so doing, it must be kept in mind that these are guidelines for systemic delay and are therefore not to be applied as if they were judicially developed limitation periods. (R. v. Chung, [2008] O.J. No. 2145 at para. 8 (S.C.J.).)

[44] Under a section 11(b) Charter analysis, delay attributable to inherent time requirements is not attributable to either party. (Qureshi, supra at para. 33.) One such inherent time requirement is the “intake requirement”, that is, the time to retain counsel, deal with bail, disclosure and police paperwork. The time allowable for “intake requirement” varies depending on the nature of the case and the functions that must be completed. Periods ranging from two to eleven months have been attributed to “intake” functions in the Ontario courts, depending on the circumstances of the particular case. (R. v. Bennett, (1991), 1991 2701 (ON CA), 3 O.R. (3d) 193 (C.A.) paras. 90‑93; aff’d. 1992 61 (SCC); R. v. Kovacs‑Tatar, (2004), 2004 42923 (ON CA), 73 O.R. (3d) 161, 192 C.C.C. (3d) 91 (C.A.) at paras. 28‑29; R. v. Seegmiller, (2004), 2004 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.); R. v. Galassi (C.A.), (2005), 2005 32192 (ON CA), 77 O.R. (3d) 308, 206 C.C.C. (3d) 262 (C.A.) at para. 7; Qureshi, supra note 3 at paras. 27‑37; and R. v. Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425 at paras 77‑79.) The time allotted as reasonable intake time should be deducted from the overall period of delay. (Galassi, supra at paras. 15‑19.)

[45] In R. v. Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425 at paras 77‑79 and 124, the Court attributed 11 months to intake in the Ontario Court of Justice. The Court found that eight months were necessary for counsel to be retained, complex initial disclosure to be made and a disclosure undertaking issue to be resolved. The Court emphasized the complex nature of the case: the indictment included five accused, related to events over a five‑year period and included allegations of an overall conspiracy to obstruct justice. The Court noted that the disclosure requirements of that case were complex.

[46] The inherent time requirement of a case “is the period of time that would normally be required to process a case, assuming adequate institutional resources”. (R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45 at para. 44, per McLachlin J.) Reasonable time required for intake, like other inherent time requirements, is considered to be neutral in the 11(b) calculus.

[47] Where a case must proceed through a preliminary inquiry, a longer time must be allowed than for cases which do not require a preliminary hearing. Equally, a two‑stage process will involve additional inherent delays such as further pre‑trial meetings and added court dates. (Morin supra at p. 17.)

Waiver and Delay Initiated by a Party to the Proceeding

[48] Delay that is attributable to one side or the other will include waivers or actions by a party that result in a delay of the proceedings. The period to be reviewed is the time from the date of the swearing of the information to the end of the trial. (Morin, supra. at 13 and R. v. Kporwodu, (2005), 2005 11389 (ON CA), 75 O.R. (3d) 190 (C.A.) at paras. 23 and 35.)

[49] Waiver of delays by an accused person must be clear and unequivocal. There must be some advertence to the protections afforded by the Charter for trial within a reasonable time. Waiver can be implicit or explicit, evidenced by the agreement of the accused, or conduct that gives rise to an inference of informed waiver. Actions of the accused falling short of waiver can also be considered by the court in assessing delay. The court in Morin described Defence strategy and preliminary procedures as falling into this category. At p. 17, Sopinka J. observed,

Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedure 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.

Institutional Delay

[50] Delays caused by limited institutional resources will generally be assessed against the Crown, even though they are not the result of the conduct of a particular crown attorney. They are usually the result of the failure to provide sufficient court facilities, judges and support personnel to prosecute in a timely manner.

Step 2: Determining whether the Delay Attributable to Crown or Institutional Delay is Unreasonable

[51] The court must determine whether the delay is unreasonable. This means that once delay is categorized as inherent, Defence delay, Crown delay or institutional delay, the court must examine whether the total delay attributable to Crown and institutional delay is unreasonable.

Step 3: If the Crown and Institutional Delay is found to be Unreasonable, Whether the Net Delay caused Prejudice to the Applicants

[52] There are three aspects to the prejudice analysis: liberty, security, and fair trial interests. (R. v. K. (A.), (2005), 2005 11389 (ON CA), 75 O.R. (3d) 190, 195 C.C.C. (3d) 501 (C.A.).)

(a) The liberty interest of the accused arises as a result of pretrial detention and by restrictions placed on the free movement of the individual while he is released on bail. (R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588, 33 C.C.C. (3d) 289.)

(b) The security interest encompasses “…protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation.” This may include stigmatization of the accused, loss of privacy, stress and anxiety resulting from disruption of family, social life and work, legal costs, and uncertainty as to the outcome and sanction. (R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863 (sub. nom. Mills v. The Queen) 26 C.C.C. (3d) 481 at 538.)

(c) The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. (Morin at 12.)

[53] Where the nature of the allegation establishes a heightened societal interest in a trial on the merits, the absence of prejudice (particularly to the accused’s fair trial interests) takes on added significance in the section 11 (b) calculus.” (R. v. Seegmiller (2004), 2004 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.))

Step 4: Balancing the Societal interest against the Reasons for Delay

[54] In the final analysis of the s. 11(b) Charter framework, the court needs to balance societal interest in ensuring that accused are tried on their merits against the delay and prejudice.

[55] The balancing exercise was described by McLachlin J., as she then was, in Morin, at paras. 85 and 86:

On the one hand stands the interest of society in bringing those accused of crimes to trial, of calling them to account before the law for their conduct. It is an understatement to say that this is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of crimes. When those charged with criminal conduct are not called to account before the law, the administration of justice suffers. Victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging the most fundamental of its tasks.

On the other side of the balance stands the right of a person charged with an offence to be tried within a reasonable time. When trials are delayed, justice may be denied. Witnesses forget; witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice”.

[56] The interest of society in bringing those charged with criminal offences to trial is of constant importance. The interest of the accused, on the other hand and the impact of delay on the administration of justice, varies with the circumstances. It is usually measured by prejudice to the accused’s interests in security and a fair trial. It is the minimization of this prejudice which has been held to be the main purpose of the right under section 11 (b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. (Morin at paras 30 and 31).

[57] One of the factors that must be taken into account in balancing societal interests and those of the accused is the complexity of the trial including the transcription and analysis of intercepted communications. (Morin at para 41 and Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425 at paras 77‑79.) The number of accused is also a factor to be considered. (R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 64.)

[58] Where it is reasonable to maintain an accused in a major prosecution, the delay that results from being included in a major case will not result in dismissal of the case for necessary delay inherent in the inclusion in a major prosecution. (R. v. Malcolm [2008] O.J. No. 4665 (S.C.J.) at paras. 31 and 32.)

IV. ANALYSIS AND CONCLUSION

Length of delay

[59] In this case, there has been a 38 1/2 month period from the date of the arrest and laying of charges to the commencement of the trial on July 22, 2013. This period meets the threshold for inquiry as to the reasonableness of the delay. (R. v. Rahey (1987), 1987 52 (SCC), 33 C.C.C. (3d) 289, [1987] 1 S.C.R. 588.)

Step 1: Date of arrest to commencement of the preliminary inquiry (May 4, 2010 to February 15, 2011)

[60] For the following reasons, I find that the 9 month period from May 4, 2010 to February 15, 2011 was inherent time properly required for intake:

(a) This was a complex proceeding involving the arrest of 78 people, 104 boxes of disclosure (each of which contained approximately 2500 pages of documents), 99 search warrants and notes of 1,768 officers, with 7,500 pages of notes. A great deal more time was therefore needed to sift through the morass of disclosure in this very serious case involving allegations of association with criminal organizations and possession of loaded firearms. At this stage of the proceeding, it was appropriate for the Crown to obtain and disseminate disclosure to all parties. It was inevitable that this process would take some considerable time given the volume of disclosure and number of accused.

(b) Grizzle, who was arrested at the same time and place as Tyrell, was alleged to be a possible member of a criminal organization;

(c) Two identical loaded firearms were found in the apartment where Tyrell and Grizzle were found together;

(d) At no time did Tyrell complain about the pace at which disclosure was provided or indicate that disclosure that pertained specifically to him and him alone could and should be easily and quickly provided; and

(e) At no time did he seek to sever the action against him from all others (although others did).

Stage 2: Preliminary Inquiry (February 15 to December 8, 2011)

[61] On February 15, Tyrell’s counsel agreed to the May 2, 2011 date for Judicial Preliminary Inquiry. This period reflects an acceptable period of institutional delay in scheduling a complex preliminary hearing involving multiple accused.

[62] The Preliminary Hearing in this case took place on 28 days beginning on May 2, and a decision on committal was released on December 8, 2011. This time is inherent time for the following reasons:

(a) the Preliminary Inquiry involved 78 accused persons and 104 boxes of documents;

(b) although the evidence regarding Tyrell was heard on May 11, 2011, there is no evidence he sought committal before the end of the global Preliminary Inquiry. Tyrell was committed for trial on December 8, 2011; and

(c) the case involving Tyrell was not at this juncture “simple and straightforward” as characterized by Tyrell, as evidenced by the fact that he featured prominently in the global committal decision. (49 of 353 pages of the decision were devoted to the case against him).

[63] Given the number of accused, the length and nature of the Preliminary Inquiry, and Tyrell’s failure to seek committal after the evidence pertaining to him had been heard, I am satisfied that this time was necessary and should all be attributed to inherent delay. (R. v. Cranston, 2008 ONCA 751, [2008] O.J. No. 4414 at para. 50 (C.A.) and R. v. Hayes [2003] O.J. No. 4590 at para. 31 (C.A.).)

Stage 3: Superior Court Intake (December 8, 2011 to February 15, 2012)

[64] The first appearance in Superior Court was January 18, 2012. On January 18, 2012 the judicial Pre Trial was scheduled to commence on February 15, 2012. This period of 2 months and one week inherent delay is acceptable under the circumstances.

Stage 4: Superior Court Judicial Pre Trials and Selection of First Trial Date (February 15 to April 26, 2012)

[65] From February 15 to April 26, 2012 Judicial Pre Trials were scheduled.

[66] This 2 ½ month period for the conduct of Judicial Pre Trials is also inherent in a case involving multiple accused such as this. Tyrell himself understood and accepted that his trial should take place along with that of Grizzle and he indicated at the Pre Trial that he wanted to set a date for trial “as soon as Grizzle had been committed for trial.”

Stage 5: Scheduling of First Trial Date (April 26 to November 13, 2012)

[67] On April 26, 2012, the Crown and counsel for both Tyrell and Grizzle selected a November 13, 2012 trial date. This period is time inherent to the process for the following reasons:

(a) all counsel agreed to the November 13, 2012 trial date and no one sought an earlier date;

(b) all counsel were awaiting the decision on a Garofoli application filed in the main action. Ty