COURT FILE NO.: CR135000016800MO
DATE: 20140109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
THILAKSHAN RAJARUBAKUMAR
Applicant
Michally Iny, for the Crown
J. Gold, for the Applicant
HEARD: November 29, 2013
B.P. O’Marra J.
ruling
[1] The Applicant was charged with a series of criminal offences on May 14, 2011. His trial is scheduled to commence on January 20, 2014.
[2] On December 16, 2013 I dismissed an Application to stay the charges based on ss. 11(b) and 24(1) of the Charter. These are the reasons for that decision.
I. total delay to trial and waiver
[3] The Respondent properly concedes that the time to trial of 32 months and 6 days warrants an assessment under s. 11(b) of the Charter. Further, the Respondent does not allege any waiver of time periods by the Applicant.
II. the chronology
[4] On May 14, 2011 the Applicant was arrested and charged with a series of offences including the following:
Assault Causing Bodily Harm contrary to s. 267(b) of the Criminal Code
Kidnapping while using a restricted or prohibited firearm contrary to s. 279(1.1)(a) of the Criminal Code
Use of an imitation firearm while committing the indictable offence of Kidnapping contrary to s. 85(3) of the Criminal Code
Possession of a weapon for the purpose of committing an offence contrary to s. 88(2)(a) of the Criminal Code
Carry a concealed weapon, to wit a firearm, contrary to s. 90(2) of the Criminal Code
Forcible Confinement contrary to s. 279(2) of the Criminal Code
A. proceedings in the ontario court of justice
[5] On May 27, 2011 the Applicant was detained in custody after a Bail Hearing.
[6] On June 10, 2011 the Applicant appeared by video. He had not yet retained counsel. The case was remanded to June 16, 2011.
[7] On June 16, 2011 the Applicant appeared by video. He had not yet retained counsel. The case was remanded to June 23, 2011.
[8] On June 21, 2011 the Applicant was ordered released on terms after a Bail Review in the Superior Court of Justice.
[9] On June 23, 2011 the Applicant attended and picked up further disclosure. He had not yet retained counsel. The case was remanded to July 15, 2011.
[10] On July 15, 2011 the Applicant attended and picked up further disclosure. He still had not retained counsel. The case was remanded to August 5, 2011.
[11] On August 5, 2011 the Applicant attended and picked up further disclosure. He still had not retained counsel. The case was remanded to August 26, 2011.
[12] On August 26, 2011 the Court was advised that counsel had been retained. A Judicial Pretrial was set for September 27, 2011.
[13] On September 27, 2011 the Judicial Pretrial commenced but was not completed. October 18, 2011 was set to continue the JPT.
[14] On October 18, 2011 the Judicial Pretrial was completed and Preliminary Hearing dates were set for July 30 and 31, 2012. Counsel for the Applicant did not indicate on the record any earlier dates that he was available. The Applicant was not present and the Crown and Court agreed that a warrant with discretion would issue returnable on the confirmation date of May 14, 2012.
[15] On May 14, 2012 a student appeared on behalf of counsel. On consent the discretionary bench warrant was extended to July 30, 2012 as the Applicant was not present and there was no designation filed. The student advised the Court that some three or four weeks prior the Crown had agreed to vary the terms of release.
[16] The parties appeared on July 30, 2012 to commence the Preliminary Hearing. The presiding Justice L. Budzinski had conducted the Bail Hearing on May 27, 2011 and issued a Detention Order. Counsel for the Applicant requested that another Justice conduct the Preliminary Hearing. Justice Budzinski agreed and the matter was adjourned on consent to July 31, 2012 to set new dates for the Preliminary Hearing. There were no other Justices available on July 30, 2012 to commence the matter.
[17] On July 31, 2012 new dates for the Preliminary Hearing were set for March 6, 7, and 8, 2013. Counsel for the Applicant advised the Court that he was available for unspecified dates in August, September, October and December of 2012. A confirmation date was set for December 11, 2012.
[18] Commencing on August 26, 2012 there were a series of email contacts between counsel. I will refer to extensive parts of those emails since they are significant in this ruling.
[19] On August 26, 2012 counsel for the Applicant contacted the Crown by email. He indicated that “we wish to waive the prelim (sic) and head straight to trial. Are you able to bring it forward for that purpose?”
[20] On August 28, 2012 the Crown responded by email as follows:
I have considered your request – but at this time I feel it is appropriate to have a preliminary inquiry. If you are concerned about the passage of time until we get to the March prelim dates, I suggest that we narrow the issues. I am confident that we could have a brief preliminary inquiry that would not take more than a day. If we agree on a streamlined hearing we could bring the matter forward and reschedule – no doubt securing a much earlier date.
[21] Later on August 28, 2012 counsel for the Applicant responded by email as follows:
Yes, my client is very concerned about the passage in time and this excessive delay and prejudice that flows from it and that is a major consideration as to why he is waiving the preliminary hearing. The notion of being more focused in the circumstances is rather absurd to me when we are effectively saying there are no issues on committal. That said, if you are calling witnesses, I am obligated to cross examine them thoroughly in the event that they change their evidence at trial or are unavailable so I don’t see how this will save any time whatsoever.
Regardless, how is it the Crown has a right to a preliminary hearing in the present state of affairs? As I understand section 561(1)(b) he has a right to change our mode of election as we are well before the 15 day requirement. I understand I have to provide formal notice of same to all parties pursuant to section 561(3) but I presumed this could be dealt with much more expeditiously and less contentious as suggested.
Perhaps I am missing something but what is your authority to say the Crown has a right to a preliminary hearing?
Please advise me of your position and authority so I am (sic) advise my client on how to proceed and whether I need to complete the required components noted above.
[22] On August 29, 2012 the Crown responded by email as follows:
The Crown has the same right to request a preliminary inquiry as does the accused. It is in section 536 of the Criminal Code. The discovery aspect of a preliminary inquiry can serve the Crown’s purpose as well as the defence’s. I would like to discover Hernan Gonzalez as he has not provided a formal statement to police. Since you say that there is nothing in issue for the preliminary inquiry, I take it we can agree that committal is not an issue and we only need to have a half day set aside to hear from the complainant. I have no doubt that we can secure a much earlier preliminary hearing date for that purpose. I would set it as priority matter. I would have to inquire with the trial co-ordinator, but I am sure we could do it in the early fall, thereby moving the matter ahead in a much more expeditious way.
[23] On December 11, 2012 a student appeared on behalf of counsel to confirm the scheduled dates in March of 2013 for the Preliminary Hearing. The Crown referred to the prior communications between counsel and indicated the Crown was still prepared to proceed on a half day Preliminary Hearing that could be held before March of 2013. The student for counsel had no instructions to agree to a shorter (and sooner) Preliminary Hearing. On consent the matter was adjourned to January 8, 2013 to be spoken to. The Applicant was not present and the warrant with discretion was extended.
[24] On December 14, 2012 the Crown sent an email to counsel as follows:
As you probably know the Rajarubakumar case was addressed on December 11 in 205 court to confirm the preliminary inquiry dates. I addressed Justice Cole on some of the issues that we have previously discussed. He suggested that if only one witness was required for the preliminary inquiry then we should vacate the other 2 days of court time. I said that I needed to confirm with you that you were in a position to make the admissions that we had previously discussed, but I have not heard back from you on. Both myself, and the Court are hopeful that we can narrow the focus of this preliminary inquiry in order to better use precious court time and to move this case more expeditiously to trial. Please advise of your position.
[25] Later on December 14, 2012 counsel for the Applicant sent the following email to the Crown:
As you are aware, Mr. Rajarubakumar was willing to make a very large sacrifice and forgo his preliminary inquiry so that this matter could move to trial as quickly as possible. You advised me that notwithstanding his sacrifice, the Crown wished to conduct one for the purpose of discovery.
As I indicated before, if the Crown intends to have a preliminary inquiry then committal is in issue. If you feel that you can achieve committal through one witness then that is your prerogative but I am not willing to make concessions so that the Crown can further their discovery of the case that ought to have been done through police investigation. Using the preliminary inquiry in this manner has done nothing more than prolong the end result in this case and has significantly prejudiced my client. I appreciate that you indicated that you would find an earlier date if we were willing to concede everything. Effectively, you were saying that if the defence was willing to consent to a Crown discovery process for an incomplete police investigation, then you could secure earlier dates for us. We respectfully declined such an offer as it is of little reprieve for Mr. Rajarubakumar who looks to the completion of the matter.
To be clear, committal is not conceded as there is a very strong argument against him being committed to stand trial on the present evidence which would have thus completed the matter. The reason he was willing to waive his preliminary inquiry was because we were very confident that had we secured trial dates right away then he would have been acquitted. It is our view that it is possible, if not probable, that the trial would have already taken place or very soon from today’s date had the Crown agreed to allow the client to waive his preliminary hearing and move the matter to Superior Court in August of 2012 as requested. What has made matters worse is that as time has gone on, my schedule has filled up making it difficult (sic) to immediate dates if the Superior Court offers some. That is an issue for a later day. However, I do find it rather absurd that the Crown is suggesting that if we concede committal a (sic) present, make any admissions you seek, and at best saving two consecutive dates, that is somehow expedites things and saves any significant amount of time on the tally of 11(b) attributable delay.
I also don’t appreciate you stating things on the record when my agent was simply there to confirm the dates. There is obviously a great deal of contention over the delay here and to personally address the matter, speak of delay, and of details there (sic) were never conceded to is highly imbalanced. If you feel there is something we need to discuss in front of a judge, I would have appreciated you giving me a heads up so I could have provided proper instructions or attended myself. From my point of view, I see this entire exercise, including your present email, as nothing more than posturing for the record to preempt any delay argument caused by the Crown’s wish to discovery (sic) one uncooperative witness. You certainly have the right to compel that witness to testify and discover if he does indeed disclose an offence, but the delay that has resulted from that had nothing to do with Mr. Rajarubakumar; in fact it is directly contrary to his wishes to move to complete this matter as soon as possible.
So to address your position directly: we are not making any concessions beyond that what was already set out at the original preliminary hearing date. Committal is in issue. Any statement of issues that is filed remains valid and representative of our position. The reason for that is we wish to argue against committal and finally end this prosecution against him, something that may very well could have been done already had the Crown agree to forgo their discovery.
I would rather we address anything further on the record on the 8th of January rather than have to add endless emails of arguments and positions to an impending 11(b) motion at trial.
[26] The Crown responded later on December 14, 2012 by the following email:
Thank you for your response. I will not bother responding to all of your complaints, you can file an application as you see fit. However, I fail to see how anything is wrong with me putting comments on the record about our discussions, in fact I believe that is why we have a record in court. If you do not appear yourself, and send an agent not apprised of the matter, that is up to you. Further, I fail to see how I am at all being unreasonable, you might not like it, but the Crown does have a right to advance its case as it sees fit. At the same time I have done everything I can to move the matter forward. At this point there is clearly a reasonable prospect of conviction and a public interest in proceeding, so the Crown will do so. I fail to see how your suggested timelines are at all accurate. I look forward to your marshalling that evidence on an application in the future.
[27] On January 8, 2013 another counsel appeared as agent for counsel of record. He advised that the Applicant had been willing to waive the Preliminary Hearing “many, many months ago, as he is concerned about how long this matter is taking.” He also advised as follows:
• the Crown insisted on having a Preliminary Hearing
• “accordingly, we don’t know what the alleged victim will say.”
• committal is in issue and the time estimate is accurate
[28] On consent the three day Preliminary Hearing was confirmed for March of 2013. The Applicant was not present and the warrant with discretion was extended to March 6, 2013.
[29] The Preliminary Hearing proceeded on March 6, 7, and 8, 2013 as scheduled. The contentious witness Hernan Gonzalez testified on March 6, 2013. His testimony was completed in 24 pages of transcript that day.
[30] The hearing was not completed on March 8, 2013. Counsel for the Applicant advised he had available dates to continue in the three weeks following March 8, 2013. The matter was adjourned to May 31, 2013 for further evidence and submissions on committal.
[31] On May 31, 2013 the evidence was completed. After submissions the Applicant was committed for trial on all charges other than an allegation of choking with intent.
B. proceedings in the superior court
[32] June 27, 2013 was the first appearance. A Judicial Pretrial was set for August 6, 2013.
[33] On August 6, 2013 the Judicial Pretrial commenced but was not completed. September 20, 2013 was set to continue the JPT.
[34] On September 20, 2013 the Judicial Pretrial was concluded. A five week trial was set to commence January 14, 2014. The trial date was later set for January 20, 2014 based on the assigned Crown’s availability.
[35] On September 27, 2013 the Applicant was arrested on an allegation that he had failed to comply with one of his release terms.
[36] On October 7, 2013 the Applicant filed an Application seeking to quash the committals for trial. That Application is returnable January 13, 2014.
[37] On October 31, 2013 the Applicant was released on a new global bail order.
III. the law on s. 11(b) of the charter
A. onus
[38] The Applicant has the legal burden of proving an alleged violation of s. 11(b) of the Charter on a balance of probabilities.
R. v. Morin, [1992] 1 S.C.R. 771 (S.C.C.) at para. 14.
R. v. Farewell (2008) 2008 BCCA 9, 229 C.C.C (3d) 17 (B.C.C.A.) at para. 77.
B. relevant period of assessment
[39] The relevant period of assessment is the overall period beginning at the commencement of proceedings to the end of the trial.
R. v. Nguyen, 2013 ONCA 169 at para. 49.
C. factors to be taken into account
[40] The Court must consider the following:
(1) Length of the delay;
(2) Waiver of any time periods by the accused;
(3) Reasons for the delay, including
a) the inherent time requirements of the case
b) conduct of the accused or delay attributable to the accused
c) conduct of the Crown or delays attributable to the Crown
d) systemic or institutional delays
e) any other reason for the delay
(4) Prejudice to the accused
R. v. Morin at para. 31.
R. v. Tran, 2012 ONCA 18, para. 20.
D. guidelines for provincial and superior courts
[41] The Supreme Court of Canada has announced that, as an “administrative guideline”, the permissible range of systemic delay, after the preliminary intake functions have all been completed, is (1) in the range of eight to ten months in the Ontario Court of Justice; and (2) in the range of six to eight months in the Superior Court of Justice.
R. v. Mahmood. 2012 ONSC 6290 at para. 64.
R. v. Morin at para. 55.
R. v. S.(L.) (1999), 133 C.C.C. (3d) 493 (O.C.A.).
E. assessment of the delay
[42] The Court must avoid the application of any mathematical or administrative formula and instead adopt a judicial determination that balances the interests s. 11(b) protects against factors that either inevitably lead to delay or otherwise cause delay.
R. v. Nguyen, at para. 49.
[43] The time required to schedule, prepare for and conduct judicial pretrials should be considered an inherent time requirement of the case.
R. v. Nguyen, 2013 ONCA 169 at paras. 54, 59 and 60.
[44] Whether a delay is unreasonable is not simply a function of the passage of time. It includes a thoughtful consideration of several other constitutionally relevant factors.
R. v. Mahmood, at para. 7.
[45] The degree of systemic delay in any given case is simply one factor that must be considered under s. 11(b) of the Charter. If the “systemic delay” in a case exceeds the administrative guideline, it will simply weigh against the Crown in the overall assessment of “reasonableness” of the total period of delay. It does not, however, automatically compel a conclusion that there has been a violation of s. 11(b) of the Charter.
R. v. Morin, pp. 794-800.
R. v. Kovacs-Tatar, paras. 19, 27-30, 51, 52.
[46] In assessing the actions of the accused and the Crown under s. 11(b) of the Charter, the Court is not attempting to assign blame to one of the parties for any period of delay. Rather the Court is simply assessing the factual causes for the various delays in the case. Accordingly, there is no need to investigate the intention or motives of the parties. The Supreme Court of Canada indicated in R. v. Morin this assessment is simply an attempt by the Court, to take into account all of the actions “voluntarily undertaken” by either the accused or the Crown which, in fact, caused delay in the proceedings. Once it is determined that the conduct of a particular party has caused a particular delay, then that delay is attributed to or counted against, that particular party.
R. v. Mahmood, at para. 62.
F. prejudice
[47] The focus of the constitutional protection provided by s. 11(b) of the Charter is the prejudice arising from the delay in disposing of the matter, and not any prejudice that may arise from the fact that he has been charged with the offences.
R. v. Conway (1989), 49 C.C.C. (3d) 289 S.C.C. at p. 305.
R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (O.C.A.) at para. 32-34.
[48] The burden of proof on the issue of prejudice is on the accused. There is no legal presumption of prejudice that flows from any period of delay, no matter how long the delay is.
R. v. Mahmood at para. 82.
[49] The test in assessing prejudice can be expressed as follows:
Does the interest of the accused and society in a prompt trial outweigh the interest in bringing the accused to trial?
R. v. Morin, at pp. 786-787, 809-811.
R. v. Thomson (2009) 2009 ONCA 771, 248 C.C.C. (3d) 477 (O.C.A.) at para. 25.
G. balancing of interests
[50] The final stage of analysis requires a balancing of the various individual and state interests that s. 11(b) of the Charter is designed to protect against the factual background of these factors.
IV. analysis
A. Intake in the ontario court of justice
[51] The Applicant did not retain counsel until August 26, 2011 when the JPT was set for September 27, 2011. The JPT was not completed until October 18, 2011 when the Preliminary Hearing dates were set for late July of 2012.
[52] With the number of serious charges and the estimated court time for the Preliminary Hearing this case required a comprehensive JPT before the dates were set. The time to retain counsel and complete the JPT should be characterized as intake/neutral. That would cover the period May 14, 2011 to October 18, 2011 inclusive.
[53] When the Preliminary Hearing was scheduled on October 18, 2011 counsel for the Applicant did not suggest earlier dates that he was available and prepared to proceed. A further 30 days should then be added to the intake / neutral period which takes it to November 18, 2011. This further 30 days recognizes the scheduling and preparation of counsel in the absence of specific earlier dates being provided.
R. v. Lahiry, 2011 ONSC 6780 at paras. 2 and 25-37.
B. institutional delay in the ontario court of justice
[54] The institutional delay from November 18, 2011 to the first Preliminary Hearing date of July 30, 2012 is approximately 8.5 months.
C. events of july 30, 2012
[55] On July 30, 2012 counsel for the Applicant first learned that the assigned Justice had presided at the Bail Hearing on May 27, 2011. Most bail hearings in the Ontario Court are conducted by Justices of the Peace. However, Judges of that Court can and do conduct them from time to time depending on availability. Counsel agree on this Application that it is an exception to the general practice for a Judge to conduct bail hearings.
[56] As of July 30, 2012 committal for trial was not conceded. Counsel for the Applicant was entitled to respectfully request that another Justice conduct the hearing. The original assigned Justice took no exception to the concern raised.
[57] When the Preliminary Hearing dates were set on October 18, 2011 there was no note or indication that Justice Budzinski should not be assigned since he had done the Bail Hearing. The potential problems do not arise in regard to Judges who conduct JPTs since their names are prominent on the record when Preliminary Hearing or Trial dates are set.
[58] The transcript of July 30, 2012 indicates that the Crown learned of the potential problem a few days beforehand but took no action to alert the Trial coordinator or counsel. The roster of available Judges could not accommodate a switch on July 30, 2012. It may well be that the issue could have been remedied if the assigned Crown had alerted the Trial Coordinator even a day or two earlier.
[59] On July 31, 2012 three new dates for the Preliminary Hearing were set for March 6 to 8, 2013. Counsel for the Applicant said he was available on unspecified dates in August of 2013. Assuming counsel was available and prepared to proceed within days I would apportion 15 days to factor in Crown scheduling. (see R. v. Murphy 2013 ONSC 6272, at para. 27)
D. time between july 31, 2012 and March 6, 2013
[60] While the overall time must be considered the assessment of this time period is important on this Application. If the institutional delay for this period runs from 15 days after July 31, there is a further 6.75 months. This would be on top of the 8.5 months of institutional delay to July 30, 2012.
[61] However, on such an Application the Court is obliged to consider tactical decisions made on behalf of the Applicant that impacted on delay. The Askov factors include the length of the delay and the reason for the delay.
R. v. Askov, [1990] S.C.J. No. 106 para. 19.
[62] Starting on August 26, 2012 there were a series of communications between counsel that had the distinct potential of expediting proceedings in the Ontario Court.
[63] The defence suggested it would waive the evidence and consent to committal for trial on a “bring forward” date. The Crown was in favour of a shorter and quicker hearing that would involve the evidence of one witness (Hernan Gonzales).
[64] The defence countered that if any evidence was called then the full three days were required and committal was contested.
[65] Counsel on this Application submitted that it was not in his client’s best interests to have an abbreviated Preliminary Hearing with the one witness who the Crown wished to hear from. I do not question that decision. However, it was a tactical decision that foreclosed a much shorter lapse of time in the Ontario Court.
[66] On August 29, 2012 the Crown advised counsel for the Applicant that a truncated Preliminary Hearing could be held in the early fall of 2012.
[67] On December 11, 2012 the Crown again requested that counsel consider agreeing to a half day hearing with one witness. The Crown followed up on this request over the ensuing days. This proposal was again declined and the three days set for March of 2013 remained in place.
[68] The contentious witness (Mr. Gonzalez) occupied some 24 pages of transcript on the first of three dates in March of 2013.
[69] The Applicant was under no obligation to abridge the Preliminary Hearing or waive committal. However, it was the Applicant who first proposed a waiver and quick committal in August of 2012. The Crown countered with a reasonable suggestion of calling one witness before committal on a date well before March of 2013.
[70] The following factors are relevant to assessing the time period between July 31, 2012 and March 6, 2013:
The Applicant’s counsel was advised on August 29, 2012 that a truncated Preliminary Hearing could be held in the “early fall of 2012”. That offer was not accepted by the Applicant.
On the basis that “early fall” would extend to October 31, 2012 I would assess institutional/Crown delay from July 31, 2012 to that date as three months.
The period from October 31, 2012 to March 6, 2013 should be assessed as neutral.
E. time between march 8, 2013 and may 31, 2013 to complete preliminary hearing
[71] Counsel for the Applicant was available and prepared to proceed in the three weeks following March 8, 2013. Allowing 15 days for scheduling the Crown the remainder of this period is institutional delay amounting to two months and eight days.
F. total institutional delay in the ontario court of justice
November 18, 2011 – July 30, 2012
8.5 months
July 31, 2012 – October 31, 2012
3 months
March 23, 2013 – May 31, 2013
2 months, 8 days
Total
13.75 months
G. intake and judicial pretrial in the superior court
[72] The first appearance in the Superior Court was on June 27, 2013, less than a month after committal.
[73] This jury trial is scheduled to last five weeks. A thorough Judicial Pretrial before setting aside such Court time was both mandatory and in the interests of justice.
[74] The Judicial Pretrial commenced on August 6, 2013 and concluded on September 20, 2013. The transition period to the Superior Court and completion of the JPT should be assessed as neutral.
H. institutional delay in the superior court
[75] The period September 20, 2013 to January 20, 2014 is four months. While this period is not viewed in isolation it is well within the guidelines for proceedings in this Court.
I. total institutional delay in two levels of court
Institutional Delay in the Ontario Court
13.75 months
Institutional Delay in the Superior Court
4 months
Total
17.75 months
J. prejudice
[76] The Applicant was held in custody after his arrest on May 14, 2011 until he was released on a Bail Review on June 21, 2011. He was rearrested on September 27, 2013 based on an alleged breach of his bail terms. He was released on October 31, 2013 on terms.
[77] When not in pretrial custody the Applicant has been alternatively on house arrest or subject to a curfew at his mother’s home. On April 15, 2012 the curfew was varied with the consent of the Crown so that he could be away from his address at night provided he was with one of his three sureties. The Crown would not agree to delete the curfew.
[78] Before his arrest the Applicant had a fulltime unionized position as a security guard. When he was charged with these offences he was suspended without pay but not discharged from his employment. He has been unable to gain employment in the security field since criminal background checks are performed. He has worked in construction and other such jobs on a periodic basis since his arrest.
[79] The Applicant also ran a “Select Sandwich” franchise. However, his bail conditions limited his ability to carry on this business. He ultimately lost the franchise and feels his reputation has been damaged as a result.
[80] The Applicant’s goal has always been to work in security or law enforcement. The outstanding charges (and the nature of the charges) have prevented him from pursuing those goals.
[81] The Applicant’s income has been greatly reduced since he lost the security job and the franchise. He feels badly about his inability to contribute financially to the household where he lives with his surety.
[82] The Applicant states he is unable to help his elderly mother as much as he could previously. He also states that the delay in Court has put his plans with his live-in girlfriend on hold and put stress on their relationship.
[83] The Applicant states that the pending charges and bail terms have impacted negatively on his relationship with friends. In particular, his friends in the security and law enforcement fields seem less inclined to associate with him.
[84] The Applicant states that the delay and stress associated with the uncertainty of this proceeding have made it difficult for him to focus. He has also had difficulty sleeping. He feels “un-energized and de-motivated” which is very unlike him. His girlfriend has recommended that he see a doctor but he has not done so.
K. conclusion
[85] The Applicant’s security interests have been impacted by the number and nature of the serious charges he faces. He has experienced two periods of detention and otherwise been at large on house arrest terms or under curfew.
[86] In light of the serious charges laid it is not surprising that the Applicant would be subject to stringent terms amounting to house arrest. The Crown ameliorated those conditions somewhat by consenting to vary the curfew term.
[87] The Applicant does not suggest that the passage of time in this case has impacted negatively on his right to full answer and defence.
[88] Most of the prejudice alleged flows from the very fact of being charged with these serious offences.
[89] There is a significant societal interest in a trial on the merits for the very serious charges alleged.
[90] The total institutional/Crown delay for a proceeding through two levels of Court is within the administrative guidelines.
[91] The Applicant has not established that his rights under s. 11(b) of the Charter have been breached.
V. result
[92] The Application under s. 11(b) of the Charter is dismissed.
B.P. O’Marra J.
Released: January 9, 2014
COURT FILE NO.: CR135000016800MO
DATE: 20140109
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
THILAKSHAN RAJARUBAKUMAR
Applicant
ruling
B.P. O’Marra J.
Released: January 9, 2014