CITATION: R. v. Brookes, 2015 ONSC 1411

COURT FILE: CRIMJ(P)69/14

DATE: 2015 03 05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. S. Scully, for the Respondent

Respondent

• and -

RANDY BROOKES

D. Bygrave, for the Applicant

Applicant

HEARD: February 23 and 24, 2015

SECTIONS 11(b)/24(1) CHARTER APPLICATION:

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

1Mr. Brookes is before the courts charged with fraud, an allegation that he:

…during a 14 month period, last, past and ending on or about the 1st day of February, 2012, at the City of Mississauga and elsewhere in the Province of Ontario, did by deceit, falsehood or other fraudulent means defraud itravel2000 of a sum of money of a value exceeding five thousand dollars, contrary to section 380(1)(a) of the Criminal Code of Canada.

2The applicant is scheduled to commence his 3-week jury trial on March 16, 2015.

3With the swearing of a Form 2 Information by the police on May 25, 2012, the applicant will have been charged and before the courts for two years, nine months and three weeks by the time he comes to trial.

4The applicant submitted that this delay to trial constitutes a breach of his s. 11(b) Charter right to trial within a reasonable time.

5For the reasons which follow, the application is dismissed.

The Arrest

6Mr. Brookes was arrested on April 25, 2012. He was released by the police on that date on a Form 10 Promise To Appear and a Form 11.1 Undertaking To Officer In Charge, the terms of which included a non-communication condition and a prohibition against possessing any credit card not in his own name.

7Four other individuals, McKennon, Dann, Lim, and Samantha Brookes, the applicant’s spouse, were also arrested and charged with fraud.

THE OCJ APPEARANCES

June 4, 2012 - First Appearance

8The accused persons first appeared before the Ontario Court of Justice (OCJ) on June 4, 2012 charged with fraud and conspiracy to commit fraud. The applicant appeared with Legal Aid Ontario Duty Counsel. He informed the court that he had retained Mr. S. Bergman to represent him. As of this date, preliminary disclosure had been, or was, given to the accused. One accused’s counsel requested time to review the disclosure before a “Crown pre-trial” was held.

9On June 4, Crown counsel informed the court that additional disclosure material was expected in the next 3 or 4 weeks probably in the form of “a complex brief”. The case was adjourned to June 25.

June 25, 2012 – Disclosure Process Ongoing

10On June 25, 2012, the applicant appeared in person without counsel. Crown counsel informed the court that notification had been sent to the officer responsible for preparing the complex brief for disclosure. The prosecutor requested an additional two weeks to produce the outstanding disclosure stating that while he did not “see a time estimate” in his file, he was of the opinion that two weeks “should be enough”. The accused were remanded to July 16.

July 16, 2012 – Disclosure Process Ongoing

11On July 16, Mr. K. Lederri, counsel for Mr. Dann, appeared as agent for counsel for the applicant. The applicant was also present. On this date, the court was provided this information by Crown and defence counsel:

(1) a disclosure request had been forwarded by the defence – no copies of ITOs for multiple search warrants had yet been disclosed

(2) a complex brief had been requested by the Crown from the police more than once – the volume of disclosure was thought to be “quite large”

(3) the police officer “had indicated that it … should be done by now”

(4) “the supervisor has been involved … getting back to the officer saying how much longer to get everything? “-“ a senior officer has already been involved in trying to get the rest of the material together for counsel”

(5) once the complex brief was received from the police, the Crown would have to review the brief before sending it on to defence counsel

(6) Crown counsel, Ms. Bridge from Special Services, who had “reviewed the initial disclosure”, was the assigned prosecutor for “case management purposes” only

(7) speaking for some or all defence counsel, Mr. Lederri stated, “we’re … each … eager to move the matter forward”

(8) a judicial pre-trial date was selected on the basis of the disclosure getting to the Crown, being vetted by the Crown, transferred to defence counsel, and the joint availability of defence counsel for a pre-trial.

12September 27, 2012 was selected for a judicial pre-trial. An interim appearance date of August 20 was set to monitor the availability of disclosure.

August 10, 2012 – Disclosure Letter

13By a letter dated August 10, Mr. Bergman wrote to Ms. N. Bridge stating that with “meaningful disclosure” yet to be received in the applicant’s case, the applicant was “very concerned about the pace at which these proceedings are moving”. Counsel further inquired as to the number of search warrants executed by the police in the investigation beyond those at the applicant’s workplace and the Brookes’ residence. Copies of ITOs not sealed were requested.

August 20, 2012 – Speak to Date

14On August 20, Mr. D. Freudman appeared as agent for Mr. Bergman. Mr. Freudman informed the court that he also appeared as agent for Ms. Trehearne who had yet to be retained by Ms. Brookes and therefore did not wish to go on the record as yet for that accused. The applicant was not in attendance. Mr. Freudman was under the mistaken impression that a designation of counsel had been filed on behalf of the applicant – as a result, on consent, a bench warrant with discretion was issued for Mr. Brookes, returnable to the September 27, 2012 judicial pre-trial date. Mr. Freudman informed the court that he had been “advised by counsel that disclosure has been received and [the] judicial pre-trial has been set for September 27th”.

September 27, 2012 – The First Judicial Pre-Trial Date

15At the outset of in-court proceedings on Thursday, September 27, Mr. Bergman filed a designation of counsel for the applicant and the discretionary bench warrant was rescinded. The judicial pre-trial was not held. Crown counsel, Mr. S. Doyle, informed the court that:

(1) a Crown pre-trial had been conducted with all counsel that morning

(2) “substantial disclosure has been completed”

(3) defence counsel were to write the Crown’s office “about certain missing statements”

(4) the defence would seek an order unsealing a sealed ITO for certain production orders and search warrants with the defence application expected to be served and filed the following Monday

(5) with the two Special Services Crowns assigned to all fraud cases absent on this date, Mr. Doyle and Mr. Hendry were filling in – no Crown counsel was yet assigned as the trial prosecutor.

16Mr. Bergman also provided information to the court:

(1) some of the disclosure provided on August 20 “in the form of flash drives” had proven inaccessible and he would write to the Crown’s office about that subject

(2) the applicant was “quite concerned about the timing of everything” and there was as yet no assigned trial Crown to “get the matter moving”

(3) there would be a defence application to have any sealed ITOs unsealed so that the Crown could vet the unsealed document(s) before their disclosure to the defence – “it would be important to be able to review the ITO”.

17When Justice Casey inquired as to the volume of disclosure, counsel for McKennon described it as, “substantial disclosure … very voluminous … a stack of disclosure … quite a bit”. With the court then observing that it must have “required substantial time to put together”, Mr. Doyle responded, “It did”. Given that counsel wished the matter to “move expeditiously”, Justice Casey entertained the defence unsealing application and granted the orders. Mr. Doyle stated that the obtaining of the ITOs, the unsealing, Crown vetting, and disclosure to the defence would require: “[a]t least two weeks”.

18On agreement, without a new date being scheduled for the judicial pre-trial, the case was remanded to October 11 To Be Spoken To.

October 11, 2012 - Speak To Date

19On October 11, 2012, Mr. F. Javed, counsel for Dann, appeared as Mr. Bergman’s agent. Mr. Javed informed the court of the following:

This matter was last before the court on September 27th for a pre-trial. Unfortunately, the matter did not commence at that time, as there was some missing disclosure, including an information to obtain, and search warrants. Mr. Hendry from my friend’s office had signed off on obtaining the material and indicated that it would be available for today’s date. Unfortunately, I’m told it is not.

20Apparently seeing that the case involved a fraud allegation and multiple accused, Justice Kastner inquired as to whether “a regular” judicial pre-trial should be set or “a case management” pre-trial. Crown counsel, Mr. Sone, indicated that he had “very limited information … about the matter”. Mr. Javed informed the court that there was “a significant amount of electronic evidence, including text messages”.

21When Justice Kastner stated that “we’ll get a regular pre-trial and if it requires more, then we can deal with it at that time”, Mr. Javed replied, “That’s fine”. Justice Kastner requested that counsel agree to a date when they were all available for a judicial pre-trial. With the court calendar offering dates as early as October 25, 29-31 and November 8, November 26 was agreed upon for the judicial pre-trial. Justice Kastner remanded the case to that date noting that it was “peremptory on all parties”.

November 26, 2012 – The Second Date Scheduled For Judicial Pre-Trial

22Once again, the judicial pre-trial was not held on Monday, November 26. On behalf of the Crown, Mr. Doyle informed Justice Feldman that:

(1) “this is a complex fraud”

(2) Crown counsel, Mr. Hendry, obtained “the order” (the unsealing order) the prior Friday and “took the file home with him on the weekend” – the ITO material had yet to be completely vetted or redacted

(3) the Crown was requesting a week or two more for the case to return “on a fraud day” also described as a “Special Services date” on a Thursday for judicial pre-trial.

23Mr. Bergman informed Justice Feldman that defence counsel were available for Thursday, December 13. He also reviewed some of the chronology of the case including the issue of the as-yet undisclosed ITOs, adding that the defence was “very concerned about the passage of time”. Counsel added: “I’m hopeful that we can get the ITOs promptly, have a chance to review them, and hopefully, do something meaningful by December 13th. Mr. Doyle stated that:

…no -- from the last day, October the 11th, no counsel has spoken to me or talk[ed] to me specifically about disclosure. On a complex file like this it is helpful that there is something we can talk about in advance, so we can talk about it in advance, to contact the Crown.

24The case was remanded to December 13 for the judicial pre-trial.

December 13, 2012 – Judicial Pre-Trial Not Held on Scheduled Third Date

25At the outset of the December 13 proceeding, Justice K. McLeod was informed by Mr. Doyle that “a productive” Crown pre-trial/meeting had occurred with the three defence counsel who were present that day – counsel for Lim, McKennon and the applicant. Mr. Bergman was appearing as agent for counsel for Dann and Samantha Brookes. On behalf of the Crown, Mr. Doyle stated that:

(1) “[f]urther disclosure was provided” to the defence

(2) “this is a complex fraud”

(3) if the case went to a preliminary inquiry, it “would likely take more than five days”

(4) “[w]e’re asking that this matter come back on the next available date for the complex case management” and that “there be an interim date” for the defence to review the ITOs received on this date for a determination as to whether a preliminary inquiry was actually required or whether an informal discovery process would suffice

(5) in the interim, the Crown’s office would write to defence counsel setting out “the plea position of the Crown for each of the accused”.

26When the court clerk inquired of counsel as to “what month” they were looking for in terms of scheduling, Crown counsel responded, “January”. Mr. Bergman stated, “I think January is reasonable “as there were” eight ITOs that are being disclosed today”. The court clerk provided case management judicial pre-trial dates (held two days a month) of January 9 or 21 and February 4 or 20, 2013. Mr. Bergman stated that he was “a little hesitant” to schedule January 9 in light of the disclosure received that day. With January 21 and February unavailable to Mr. Bergman, the judicial pre-trial was scheduled for February 20 at 3:00 p.m. Counsel selected December 28, 2012 as an interim date for the case To Be Spoken To.

The Criminal Case Management Procedure Practice Direction

27At the time the applicant’s case was before the OCJ, a September 29, 2009 Practice Direction was in force stating:

Effective immediately all cases requiring 5 days or more must be scheduled for Case Management prior to the Trial/Prelim date being set.

Case Management dates are to be obtained as soon as the parties determine that a matter is likely to require 5 or more days.

Case Management dates must be scheduled through the Trial Coordinator’s office via the telephone from the courtroom.

Case Management dates are scheduled in tiers allowing 1.5 hours per Case.

Fully instructed crown and defense are required to attend Case Management and be prepared to discuss all issues before a Case Management Justice.

December 28, 2012 - Speak to Date

28On this appearance, Mr. Doyle was present for the Crown and Ms. Ross, a student-at-law, for all defence counsel. Mr. Brookes was not present. Ms. Ross informed the court of the following:

There’s may be an issue with whether or not Mr. Brookes has still retained counsel by the time of the JPT, and so we’re hoping to adjourn just to have some time for him to be able to resolve that and also for, likely, the Crown to get in touch with counsel.

29Mr. Doyle requested that the case be adjourned a couple of weeks to allow Mr. Hendry to write to counsel to “see if we can resolve this matter without having to use the February 20th date or we can use it for someone else”. Ms. Ross asked if January 18th would be agreeable. The Crown consented and the case was set for that date to be spoken to.

January 18, 2013 - Speak To Date

30On January 18, 2013, the applicant appeared on his own behalf. He informed Justice McLeod that:

I was represented by Scott Bergman and as of now, I’m moving forward on my own. So he’s no longer representing me. No problem, only he’s a great lawyer but things didn’t work out.

31At a point during the appearance when Mr. Hendry was discussing the forwarding of plea positions to defence counsel, he turned to the applicant and asked, “are you planning on getting a lawyer…?” The applicant replied, “I’m not sure”.

32When the court questioned him further as to what the determining factor would be in his decision, the applicant replied, “[p]retty much finances”. The applicant informed the court that he had “spoken to a few lawyers”. The applicant related that Mr. Bergman had advised him that he might consider obtaining the disclosure materials on his own to review, as counsel could not directly transfer prosecution disclosure to a client.

33Mr. Hendry informed the court that he was reviewing the file “to determine if we’re proceeding on certain individuals”. Crown counsel stated, “It’s quite lengthy” adding that he had conducted most of the review and passed along “preliminary thoughts of where I’m going with them and then potentially what might be required of them if we’re not going to be proceeding with them”. Mr. Hendry further added that he needed to ensure the accuracy of the video statements of the accused persons before he could make a “final judgment”. Mr. Hendry observed that Mr. Doyle had been involved in discussions with Mr. Bergman “prior to him being off the record”.

34Justice McLeod addressed the applicant in these terms:

Well, Mr. Brookes, I don’t know anything about this case other than that you’re all charged with fraud and conspiracy to commit fraud, and all I can tell you is it looks serious. And all I can do is encourage you to find every, which way that you possible can to retain counsel and to retain counsel that’s available on the 20th of February.

35The applicant replied, “M’hmm”. The accused persons were remanded to the February 20, 2013 date.

February 20, 2013 – Judicial Pre-Trial Held

36On this date, the fourth date scheduled for the judicial pre-trial, Mr. Bergman appeared before the court and was formally removed from the record as the applicant’s counsel. The applicant was not present. Ms. Bygrave introduced herself as the applicant’s new counsel retained to handle his case.

37After Justice McLeod conducted a judicial pre-trial, the four accused other than the applicant were remanded to March 6 in Courtroom # 103. Charges would ultimately be withdrawn against these individuals. The applicant was remanded to March 19 in Courtroom # 405 for his matter to be spoken to. When the court asked, “Agreed?”, Ms. Bygrave replied, “Agreed”.

March 19, 2013 – Continued Judicial Pre-Trial

38Although the record is not entirely clear, it appears that Mr. Hendry and Ms. Bygrave met with Justice McLeod on this date for a 10 to 15-minute continuing pre-trial following which the court stated:

All right, Mr. Brookes, January 21st, 22nd, and 23rd for your preliminary hearing in 107, 303 and 309 and I will see your lawyer back here on the 3rd of May in 107 to make sure that we’ve got everything in place.

39The January 2014 dates were the earliest three consecutive days in the OCJ schedule for a preliminary inquiry.

May 3, 2013 – Continued Pre-Trial

40On this date, according to the transcript record, these matters were addressed:

(1) a continuing pre-trial was held

(2) the case was remanded directly to the preliminary inquiry dates of January 21, 22 and 23, 2014

(3) if Crown and defence counsel needed Justice McLeod’s further “assistance”, they could contact her office

(4) being “new to this jurisdiction”, Ms. Bygrave had earlier dates available to attend a preliminary inquiry “in March, in April, in every month thereafter”.

January 21 – 23, 2014 – The Preliminary Inquiry

41At the outset of the preliminary inquiry, Ms. Bygrave noted her earlier discussions with Mr. Hendry about the Crown withdrawing the conspiracy to commit fraud charge. Crown counsel, Ms. Scully, withdrew that charge.

42Before calling evidence, Crown counsel provided Justice Schwarzl an overview of the prosecution allegations of the fraud involving tens of thousands of dollars in losses:

Your Honour, the general scheme that is being alleged by the Crown is a fraud on ITravel2000.Com, which is a company which books trips overseas, generally … all-inclusive type vacations. What’s alleged is that Mr. Brookes was holding himself out to be a travel agent and that various individuals would provide Mr. Brookes with cash and he would then book them a trip through ITravel2000.Com. The Crown is alleging that, in fact, these trips were booked with credit cards that did not belong to Mr. Brookes, that the transactions were not approved by these cardholders. While it’s correct a real credit card, that those were fraudulent transactions, that the names, addresses, phone numbers of these individuals who were taking the trips were incorrectly entered on ITravel2000, and that these trips would be booked on a short basis, within about a week of the time of travel.

…the travellers would simply provide cash and receive an email confirmation of their ticket roughly a week before the date of travel. That Mr. Brookes it is alleged would book these trips about a week before the individual would take them, such when the cardholder receive their bill a month or so later, they’d notify the credit card company they didn’t, that they didn’t book this trip, the credit card company contact ITravel and says, we aren’t paying for this, and then ITravel is stuck with the bill. And so, this would only come to light generally about a month after the trip had already been taken by these individuals.

THE COURT: So, if I hear you right, the Crown’s theory is then that the defendant used credit cards belonging to third parties who wound up paying for the vacations of these other people?

CROWN COUNSEL: Ultimately the loss accrued to ITravel, as opposed to those private individuals, given that the booking was not under the name of the third parties.

43Over the days of January 21 and 22, six witnesses testified including a “tech crimes” officer who had prepared a report provided to the defence in November 2013 relating to evidence seized from the applicant’s laptop computer. After argument on January 23, the court committed the applicant for trial and remanded him to appear before the Superior Court of Justice (SCJ) Criminal Assignment Court on February 7, 2014.

SUPERIOR COURT OF JUSTICE APPEARANCES

February 7, 2014 – SCJ Criminal Assignment Court

44At the outset of Assignment Court, Justice Durno stated:

If there are issues with respect to 11(b), potential, for events prior to today or as a result of the dates we are setting, it is counsel’s responsibility to let me know so that we can attempt to address the issue, get you an early date for the 11(b) so everybody knows whether the case is going to proceed or not.

45Ms. Bygrave appeared for the applicant and filed a designation of counsel on his behalf. Although counsel made no reference to s. 11(b) of the Charter, she did state that she believed that “this case will benefit from a judicial pre-trial before we set dates”. On consent, the judicial pre-trial was scheduled for March 7, 2014 at noon.

March 7, 2014 – Judicial Pre-Trial Adjourned

46With the defence Form 17 Pre-Trial Report not filed, the defence requested an adjournment of the judicial pre-trial. Crown counsel stated that she was ready to set a trial date but was prepared to meet with Ms. Bygrave in the interim should the pre-trial be adjourned to perhaps “iron out any potential resolutions”. In response, Ms. Bygrave stated:

…the waiver of 11(b), because 11(b) is in issue if this goes to trial, which I this point I don’t believe it will, it would be waived from today to the next judicial pre-trial date.

47On consent, with an express waiver of s. 11(b) of the Charter to the next appearance, the judicial pre-trial was rescheduled to April 15, 2014.

April 15, 2014 – Judicial Pre-Trial Adjourned

48On this date, neither the applicant nor his counsel appeared. Crown counsel informed the court that Ms. Bygrave was engaged in jury selection in another courtroom. Justice Durno adjourned the pre-trial endorsing the indictment as follows:

Mr. Brookes is remanded to June 9th at 1:30 for a pre-trial. There will be a warrant with discretion. 11(b) waived to next date.

June 9, 2014 – Judicial Pre-Trial Held

49The defence Form 17 Judicial Pre-Trial Form raised the issue of a breach of the applicant’s s. 11(b) Charter right. A judicial pre-trial was conducted by Justice Durno.

50On return to the courtroom, Crown counsel stated:

Following our judicial pre-trial, I believe we’re in a position now to set a three-week trial date and my friend and I will continue to have resolution discussions in the interim.

51The court inquired of defence counsel, “when are you available to do a three-week jury trial?” Ms. Bygrave responded, “October 13 – [t]he week of October 13 or 20th”. Justice Durno stated that for a trial of this length the court’s calendar would require the trial to be scheduled in the new year and suggested the March 16, 2015 sittings. In the result:

(1) March 16, 2015 was set for a scheduled 3-week jury trial with challenge for cause jury selection

(2) a Trial Readiness confirmation date was set for March 6, 2015

(3) if the defence decided to bring a s. 11(b) Charter application, it should be heard no later than February 6, 2015.

PREJUDICE EVIDENCE

52As part of the record in this application, the applicant filed his own affidavit sworn January 6, 2015 deposing that:

(1) he was terminated from his employment with Rogers Communications on May 23, 2012 with a termination letter stating in part:

You have been suspended with pay since April 30, 2012 pending the outcome of a full investigation. On May 17, 2012, you were interviewed by Corporate Investigations about your alleged involvement in a credit card fraud. The actions you took have completely undermined the confidence and trust inherent in the employment relationship thereby justifying dismissal for cause.

(2) he was terminated from his position as a Financial Advisor with Armstrong & Quaille Associates Inc. on or about June 7, 2012 “as a direct result of the prosecution” he currently faces – as a result, he is “virtually unable to practice in the financial industry”

(3) in December 2012, his wife filed for divorce

(4) acting under the misapprehension that he was banned from travelling outside the country because the police seized his passport on arrest, he did not obtain his passport back from the police until late April 2013 thereby missing his grandmother’s funeral in Grenada

(5) by January 2013, he could no longer “maintain” his legal fees with the lawyer he had retained

(6) after being unemployed for 15 months, he “re-invented [him]self career wise” now running “a sports performance company focusing on improving the running abilities of various athletes”

(7) because his business involves young persons, the applicant has had to obtain Police Vulnerable Sector Screening from the authorities:

I have had to disclose the pending charge(s) to various entities like Althetic’s Canada, schools, the minor track association of Ontario, and more. It is very stressful to do so. I have delayed expanding into more schools because of the fear of how I will be viewed once these entities learn of the pending charge(s). I have had great stress in making every single disclosure as I cannot control how it will be viewed, disclosed, or used in determining if I can or how I can continue to conduct my business.

(8) and in addition:

Personally speaking, this case has taken a very long time to resolve. The financial toll, stress toll, and anxiety are difficult to put into words.

53Under cross-examination on his affidavit, the applicant stated that he works as a sports performance coach working from home. In addition to referrals, he solicits clients from his website and through advertising. The applicant informed the court that he undertook training of a school’s cross-country team in September and October 2013 as well as some fitness demonstrations at fitness camps in March and April 2014. He also acted as a volunteer coach for the Speed Academy. Some of his work has involved disclosure of his pending charge. The applicant also testified that he has passed on other opportunities for fear that a school board would learn of the charge before the court. Only in December of 2014 and January 2015 respectively, did the applicant mail applications to Athletics Canada and the Minor Track Association of Ontario.

54The applicant further testified that he paid his former trial counsel close to $20,000 in incremental payments. On evaluating his deteriorating financial situation, he discharged that counsel and retained Ms. Bygrave who, as a newly-called counsel in Ontario, had a schedule which was open and charged lesser fees.

POSITIONS OF THE PARTIES

Introduction

55The respondent conceded that the delay in the present case “warrants an inquiry into the reasonableness of the delay”.

56While having regard to the total or overall period of delay, the applicant submitted that the periods of undue delay occurred in the OCJ, not the SCJ. There are aspects of agreement between the parties respecting some periods of delay including:

(1)

May 25 to July 16, 2012

– neutral intake period

1 month, 3 weeks

(2)

Oct. 11 to Dec. 13, 2012

– Crown delay

2 months

(3)

May 3, 2013 to Jan. 21, 2014 (commencement of preliminary hearing)

– Institutional Delay

8 months, 2 ½ weeks

(4)

Jan. 23 to Feb. 7, 2014

– Neutral intake period

2 weeks

(5)

Feb. 7 to April 15, 2014

– Defence delay

2 months, 1 week

(6)

June 9 to Oct. 13, 2014

– Neutral - counsel availability & Trial Preparation

4 months, 4days

(7)

Oct. 13, 2014 to March 16, 2015

–Institutional delay

5 months, 3 days

57Accordingly, of the approximate two years, nine months, three weeks since the May 25, 2012 swearing of the Form 2 information to the date of trial, roughly two years, one week and four days is not in dispute, which may be summarized as:

Institutional Delay 13 Months, 3 weeks

Neutral – intake,

preparation for trial 6 months, 1 week, 4 days

Crown Delay 2 months

Defence Delay 2 months, 1 week

58Without parsing every disputed time period to the day, the following time periods attracted different interpretations by the parties.

The Relevant Start-Point

59The applicant submitted that the unreasonable-delay-to-trial clock starts to run from the date of arrest on April 25, 2012. The Crown Respondent identified May 25, the date the information was sworn, as the date Mr. Brookes was “charged” for the purposes of the s. 11(b) Charter right.

The OCJ Neutral Intake Period

60The applicant submitted that the OCJ neutral intake period terminated on the July 16, 2012 appearance date and that the prosecutor’s failure to provide substantially complete disclosure by that date warrants characterization of the roughly five months drawn from between July 16 and October 11, 2012 and between December 28, 2012 and February 20, 2013 as essentially Crown delay responsibility. The applicant noted slow decision-making by the prosecution, the lack of an assigned trial Crown, and the arbitrary rerouting of the case into the case management pre-trial stream.

61The Crown seeks to have the court assign this time to neutral intake time reasonably attributable to the production of disclosure in a complex fraud case and the time necessary to schedule a judicial pre-trial. The respondent would characterize the period from December 28, 2012 to March 19, 2013 as defence delay responsibility largely on account of the applicant changing counsel.

Period Between Setting of Preliminary Inquiry Dates and Start of That Proceeding

62On March 19, 2013, the OCJ set three consecutive dates in January 2014 for the preliminary inquiry.

63The applicant maintains that the time from March 19, 2013 to the January 21, 2014 start of the preliminary inquiry is exclusively institutional delay with the possible exception of a “short period of inherent delay – four days” it seems for preparation for that proceeding.

64The Crown submitted that the period of institutional delay should be about 1 ½ months shorter, running from May 3, 2013 to January 21, 2014, as the judicial pre-trial was ongoing and the preliminary inquiry dates were not confirmed until the May 3 date.

Prejudice

65The applicant submitted that it can be inferred from the lengthy delay to trial in this case that he has suffered the prejudice of undue delay including the stress and anxiety of awaiting his trial which he has endeavoured to reach without delay on his part.

66The applicant further submitted that the submitted unreasonable delay to trial has also resulted in actual prejudice including negatively impacting upon employment, finances and family life.

67The respondent submitted that there is effectively no prejudice to the applicant on account of the delay to trial apart from modest inferred prejudice at most. Relevant prejudice does not flow simply from the laying of criminal charges. In addition, it is said that the delay does not impact on the applicant’s ability to make full answer and defence.

ANALYSIS

68It is the duty of the Crown to bring the accused expeditiously to trial: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at para. 62; R. v. Florence, 2014 ONCA 443, at para. 47. Section 11(b) of the Charter guarantees an accused person’s right to trial without unreasonable delay. The scope of this right was described in R. v. Austin, 2009 ONCA 329, at paras. 42-3:

The purposes of s. 11(b) were set out by Laskin J.A. in R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), at paras. 8-9:

Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.

Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. [Citations omitted.] [in original]

In determining whether s. 11(b) has been infringed, the court must balance the individual and societal factors with the length, causes and consequences of the delay. In Morin, [1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771] the Supreme Court of Canada set out the framework for the balancing exercise at pp. 787-88. Four factors must be considered:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) inherent time requirements of the case;

(b) actions of the accused;

(c) actions of the Crown;

(d) limits on institutional resources, and

(e) other reasons for delay; and

4. prejudice to the accused.

69In R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.), at p. 355 (leave to appeal refused [2005] S.C.C.A. No. 64), the court observed:

The determination of what constitutes a “reasonable” time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the “reasonableness” of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pretrial delay will constitute unreasonable delay for constitutional purposes.

70While recognizing that from time-to-time there has been apparent judicial acceptance of the point of arrest as the point at which an accused person is “charged” for the purposes of s. 11(b) of the Charter (R. v. A.J.W., 2009 ONCA 661, at para. 17; Seegmiller, at p. 351), in my view an accused’s jeopardy of being tried commences when an information is sworn or an indictment is preferred: R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, at paras. 14-20; Morin, at para. 35.

71The inherent time requirements of a case, neutral in the s. 11(b) calculus, but which invariably cause delay, will vary from case to case. Such requirements include bail, retaining counsel and legal aid applications, disclosure, judicial pre-trials and preparation for preliminary inquiry or trial. More complex cases may require more time to process, for example some fraud cases: Morin, at para. 41.

72As said, among the inherent requirements of bringing a criminal case to trial is the discharge of the Crown’s disclosure obligation. While this is an ongoing obligation, substantial, if not complete, material disclosure is generally essential for the parties’ meaningful participation in a judicial pre-trial. Dilatory or unreasonably incremental disclosure can be a real cause of unreasonable delay: see, for example, Austin, at paras. 5, 15, 23, 60, 63, 67. The matter was bluntly put by the Lord Chief Justice of England, “The problems of disclosure are intractable and have potential to disrupt the entire process”: ‘Control and Management of Heavy Fraud and Complex Cases’ (Protocol issued March 22, 2005). What must be avoided, if at all possible, is the phenomenon described in R. v. Owens, [2006] EWCA Crim 2206, at paras. 25, 52, of the prosecution “drip feeding” disclosure to the defence.

73The parties in a criminal case are expected to be fully prepared for the conduct of a judicial pre-trial. “Pre-trials are necessary case management tools, conducive to the efficient use of resources…”: R. v. Konstantakos, 2014 ONCA 21, at para. 8. Judicial pre-trials narrow issues, facilitate the production of evidence at trial, reduce the court time needed, secure judicial assistance in resolving contentious disclosure issues, provide accurate estimates of trial time, and generally ensure the overall timeliness of the system: R. v. Curragh Inc. (1997), 1997 CanLII 381 (SCC), 113 C.C.C. (3d) 481 (S.C.C.), at p. 593 per McLachlin J. (as she then was) and Major J. (in dissent in the result); R. v. Tran, 2012 ONCA 18, at para. 34; R. v. C.R.G. (2005), 2005 CanLII 32192 (ON CA), 206 C.C.C. (3d) 262 (Ont. C.A.), at para. 30; R. v. Girimonte (1998), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.), at para. 49 (leave application abandoned [1997] S.C.C.A. No. 606). Because of these contributions of judicial pre-trials to the conduct of fair, efficient and expeditious proceedings, “reasonable delays to conduct them should be treated as inherent” : Konstantakos, at para. 8; R. Williamson, 2014 ONCA 598, at paras. 32-3 (leave to appeal granted [2014] S.C.C.A. No. 438); R. v. Khan, 2011 ONCA 173, at para. 53 (leave to appeal refused [2011] S.C.C.A. No. 195); Tran, at para. 34.

74The employ of special case management initiatives for complex cases is to be encouraged. Indeed, the provincial court has been criticized for failing to secure early control of complex, multi-accused cases: R. v. Gordon, [1998] O.J. No. 4838 (Gen. Div.), at paras. 58, 62, 87, 150-1. The OCJ Practice Direction set out at para. 27 above seeks to accomplish such control and there is nothing arbitrary about the prosecution, the defence, or the court on its own motion seeking to enter a case into such a stream of case management. Indeed, as observed in the C.R.G. case, at para. 30, “reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists”.

75The notion of institutional delay in constitutional terms “begins to run only when counsel are ready to proceed but the court is unable to accommodate them” (emphasis added): Tran, at para. 32; Morin, at paras. 47, 73; R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814, at para. 24; Williamson, at para. 43. This factor of preparation time, an inherent aspect of criminal trial litigation, applies to the preliminary inquiry stage as well: Florence, at paras. 55, 59; Austin, at para. 50.

76In the Khan decision, at para. 22, the court made this observation respecting systemic/institutional delay:

The Supreme Court of Canada in Morin offered guidelines to assist the courts in assessing reasonable systemic delay. The court suggested a guideline of eight to ten months as acceptable institutional delay in the provincial courts and a guideline of six to eight months as acceptable institutional delay in the superior courts, for a total guideline period of 14 to 18 months. These are guidelines, not limitation periods, and they will yield to other factors. The reasonableness of the delay will also depend on the degree of prejudice to the accused.

77The Austin case, at para. 56, provided this interpretive advice:

While Sopinka J. set out separate guidelines for the delays in the Provincial Court and the Superior Court in Morin, the case law makes it clear that when considering the guidelines, the court should look at the reasonableness of the entire time period in issue. It is an error to isolate the delay in one court and assess the reasonableness of that delay in isolation.

78The flexible guidelines of 14 to 18 months’ allowance for institutional delay for a criminal case being tried by a jury was intended to apply to relatively straight-forward cases. Application of the guidelines is not a limitation period or “simply a mathematical exercise”: R. v. Iamkhong, 2009 ONCA 478, at para. 34.

79Prejudice can be presumed or inferred from the prolonged delay of a criminal prosecution or, in the instance of an appropriate evidentiary record, actual prejudice may be found to exist. There is, of course, an important distinction between prejudice flowing from unreasonable delay in the prosecution of a case which is the concern of s. 11(b) of the Charter, and prejudice simply arising from the fact of being charged with a crime with the attendant stress, stigma, disruption, expense and the like: R. v. Kovacs-Tartar (2004), 73 0.R. (3d) 161 (C.A.), at paras. 32-4.

80In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 3, the court stated:

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

81With reference to the flexible administrative guidelines established by the Supreme Court of Canada, deviations of several months in either direction can be justified by the presence or absence of prejudice: Morin, at p. 807; Tran, at para. 63.

82To the extent that any action or inaction of the accused may be viewed as inconsistent with the desire for a timely trial this is relevant to the assessment of prejudice: Morin, at para. 62; R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at para. 58.

83The significant point of departure between the parties relates to a time period of just over nine and a half months in the OCJ between July 16, 2012 and May 3, 2013.

84In my view, something more than the approximately seven weeks assigned by the defence for neutral, initial intake (May 25 to July 16, 2012) was reasonable in the circumstances. That said, the lengthy neutral intake period submitted by the Crown populated with assignment of some defence delay is also not reasonable.

85A period of time to the point of the second pre-trial date, November 26, 2012, peremptorily set by Justice Kastner, can be reasonably considered neutral intake. This 6-month period acknowledges certain realities including:

(1) five persons were charged with fraud and conspiracy to commit fraud

(2) the Crown’s disclosure obligation required police preparation of a “complex brief”

(3) the disclosure, including flash devices produced for the defence on August 20, 2012, had been variously described as “substantial,” “voluminous” and inclusive of a “significant amount of electronic evidence” – ultimately, in respect of one accused only (the applicant), the prosecution would propose to go to trial with 46 witnesses and the SCJ would need to set aside three weeks for a jury trial, a time allotment beyond the time to try the majority of cases in the SCJ inventory

(4) the bulk of the disclosure was produced to the defence in about three months with Crown pressure applied to the police

(5) as of August 20, 2012, Samantha Brookes had not yet retained Ms. Trehearne

(6) by September 27, 2012, initially scheduled for the judicial pre-trial, the parties had not jointly applied for the unsealing of one or more sealed ITO’s, material the defence viewed as essential before participating in a judicial pre-trial

(7) a productive Crown pre-trial was conducted with defence counsel.

(8) the prosecution required time to obtain, review, vet and redact as necessary the ITO materials

(9) the Crown needed time to formulate its position respecting resolution in terms of plea positions or withdrawal against certain accused

(10) counsel for the Crown and defence required preparation for the judicial pre-trial including review of the volume of disclosure

(11) the court itself had to schedule the judicial pre-trial within its own caseload – by November 26, the case should have been identified for the complex case management stream.

86In the present case, the defence voiced its concerns about delay during the July 16, September 27 and November 26, 2012 court appearances and in August 16, 2012 correspondence forwarded to the Crown’s office.

87This was by no means a run-of-the-mill prosecution. While labelling a prosecution as a serious or complex matter is in many respects a subjective case-specific evaluation, I am satisfied on the record here that the November 26 date is within a reasonable range for acceptable intake and the holding of a judicial pre-trial immediately after which preliminary inquiry dates would be scheduled subject to the need for a continued pre-trial.

88The time period from November 26, 2012 to February 20, 2013, some two months and three weeks, is properly attributed to Crown responsibility. The November 26 judicial pre-trial could not go ahead as the Crown had not completed its review and release of the ITO materials ordered unsealed a month earlier by the order of Casey J. on September 27, 2012. On October 11, Kastner J., a highly experienced OCJ judge, made it clear that the second date scheduled for the judicial pre-trial, November 26, was a peremptory date. Crown counsel also were not the Special Services case management Crowns, nor the assigned trial prosecutors, but appear to have had carriage of the case added on top of their regular prosecuting duties.

89The third date set for the judicial pre-trial, December 13, 2012, was aborted as well when the prosecution presented the not unsubstantial ITO materials to the defence on December 13 with no reasonable opportunity for defence review and participation in a meaningful judicial pre-trial. In effect, the Crown’s timing of release of essential materials defeated the holding of the pre-trial and necessitated the scheduling of a fourth date for a judicial pre-trial. The inference which stands to be drawn is that the prosecution was scrambling on its side to bring the case to ground and that more important work for the Crown’s office resided elsewhere.

90I am unpersuaded by the respondent’s submission that the delay from December 28, 2012 to February 20, 2013 should be characterized as defence delay on account of the applicant’s discharge of Mr. Bergman and the process of retaining new counsel. Quite apart from the fact that the pre-trial would have been held on November 26 but for delay by the Crown and dates already set for the preliminary inquiry or discoveries, as the case may be, Ms. Bygrave’s submission is to be accepted on this point that the change of counsel occasioned no delay in and of itself. Replacement counsel was prepared for the scheduled pre-trial date.

91I further accept the applicant’s submission that subject to one observation, the institutional delay for obtaining a date for the preliminary inquiry is the 10-month time period from March 19, 2013 when the preliminary inquiry dates were set to the January 21, 2014 start date of the inquiry. The one-month delay from February 20 to the March 19 date is properly characterized as neutral as if related to a proximately-scheduled successive judicial pre-trial. Returning to the duration of institutional delay, it is unrealistic to consider the defence to have been available and ready on March 19 for 3 consecutive days to conduct the preliminary inquiry – 15 days (1/2 mon.), not the 4 days suggested by applicant’s counsel, is an appropriate deduction from the preliminary inquiry institutional delay. I reject the respondent’s submission that the institutional delay ought to be calculated from May 3, 2013 – that date was an interim monitoring date with the preliminary inquiry dates already set in March 2013. Although applicant’s counsel had early dates available for the preliminary inquiry, as noted one half month for 3 consecutive- day availability and preparation is not unreasonable reducing the institutional delay in the OCJ to nine and a half months.

92Accordingly, the overall delay of two years nine months three weeks may be roughly summarized in this way:

Neutral/Inherent/Intake

May 25 to Nov. 26, 2012

Neutral intake- retaining counsel, disclosure, JPT

6 months

February 20 to March 19, 2013

Delay to successive JPT

1 month

March 19 to April 3, 2013

Preparation time for preliminary inquiry

½ month

January 23 to March 7, 2014

Committal to 1st SCJ JPT date

1 ½ month

June 9 to October 13, 2014

Prep for trial and counsel availability

4 months ½ week

Total

13 months ½ week

Crown Delay

November 26, 2012 to February 20, 2013

Disclosure delay

2 months 3 ½ weeks

Defence Delay/Waiver

March 7, to June 9, 2014

2 JPT dates adjourned for defence

3 months

Institutional Delay

April 3, 2013 to January 21, 2014

OCJ

9 months 18 days

October 13, 2014 to March 16 2015

SCJ

5 months 3 days

Total

14 months 3 weeks

93The combined institutional delay in the OCJ and SCJ falls within the lower end of the 14-18 months guideline developed in the SCC jurisprudence. The institutional delay of 9 ½ months in the OCJ is toward the acceptable upper border for that court while the institutional delay in the SCJ falls below the floor of the 6 to 8-month guideline for that court yielding some amelioration of the overall institutional delay. Adding the institutional delay and Crown delay in this case falls just short of 18 months.

94There is, of course, much to be said for Ms. Bygrave’s submission that the jurisdiction of Peel, with 2 ½ decades of exposure to systemic delay, should have developed more robust strategies to combat caseload backlog and consequential systemic delay to trial: see R. v. Lof (2005), 2005 CanLII 47091 (ON SC), 36 C.R. (6th) 393 (S.C.J.), at paras. 51-3.

95Turning to the subject of prejudice, some presumptive prejudice may be inferred from the passage of time since May 25, 2012 to the March 16, 2015 trial date. That said, the delay is far from extreme and the case for inferential prejudice is relatively weak.

96Most of the applicant’s evidence regarding actual prejudice related to consequences from the laying and defending of the original charges themselves and/or falls within a time period very clearly within a reasonable time of being charged for the trial to be conducted.

97Although by no means a signal of waiver, the pace of the pursuit of the applicant’s s.11 (b) challenge falls to be considered. Although expressly invited to alert the SCJ Criminal Assignment Court judge of any unreasonable-delay-to-trial issue, nothing was said at the February 7, 2014 court appearance. The SCJ judicial pre-trial was twice adjourned at the request of the defence with a loss of 3 months’ time and the s. 11(b) application was scheduled over a year after the indictment was first spoken to in the SCJ.

98While I appreciate that the applicant elected to “re-invent” his employment status, he deliberately chose a field where pending criminal charges would be a demonstrable detriment. In addition, on the evidence here, it is not apparent that the applicant’s new business pursuit could become a source of full-time employment.

99There is no evidence, and no suggestion, that the delay to trial has in any way impaired the applicant’s fair trial rights.

100It must be noted as well that the applicant was released from the police station following his arrest. Accordingly, he has not been subject to restrictive judicial interim release conditions. As well, having executed designations of counsel, the applicant was spared the requirement of a significant number of court attendances.

101In addition, in balancing the applicant’s s.11 (b) Charter interests with the secondary societal interest of criminal cases being trial on their merits, it is to be noted that the court has a serious fraud allegation before it.

CONCLUSION

102The 22-month presence of this prosecution in the OCJ is not a model to be emulated in other cases. That said, having regard to the overall period of delay to trial, the explanations for various periods of delay, the general lack of prejudice, and the balance of s. 11(b) Charter interests, the case falls within a range where it cannot be said that the delay offends the constitutional right to be tried within a reasonable time.

103The application to stay proceedings is dismissed.

Hill J.