R. v. Gordon, 2015 ONSC 1757

COURT FILE NO.: CR-12-10000403-0000

DATE: 20150318

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Rebecca Edward for the Crown

- and -

ANDREW GORDON

Aaron Harnett for Andrew Gordon

HEARD: December 4, 2014

RULING ON APPLICATION TO STAY PROCEEDINGS FOR DELAY

Corrick J.

Introduction

[1] Andrew Gordon is charged with conspiracy to commit an indictable offence, armed robbery, two counts of forcible confinement and using a firearm while committing an indictable offence. He applied pursuant to s. 24(1) of the Charter for a stay of proceedings on the basis that his right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter had been violated. On December 31, 2014, I ruled that Mr. Gordon had not established an infringement of s. 11(b) and dismissed the application. These are my reasons for doing so.

Overview of the Case

[2] Mr. Gordon was arrested on January 19, 2010. His trial is scheduled to begin on February 9, 2015 and is expected to last until February 27, 2015. The delay between his arrest and the anticipated conclusion of his trial is 1,866 days or 61 months and nine days, more than five years.

[3] The charges against Mr. Gordon arise from the robbery of a diamond merchant. It is alleged that, on January 9, 2010, Mr. Gordon was one of four men who attended the victim’s office armed with an imitation firearm. Once inside, the men assaulted and bound the victim by his hands and feet, and robbed him of diamonds, jewellery, and cash worth between $880,000 and $1,000,000.

[4] The matter was in the Ontario Court of Justice for two and one-half years. Most of the delay in that court was occasioned by the illness and death of Mr. Gordon's first counsel, just before the preliminary hearing. Mr. Gordon was ordered to stand trial on June 11, 2012.

[5] The matter has been set for trial twice in the Superior Court. The first trial date was aborted when Mr. Gordon's co-accused, Mr. Bandiera, agreed to provide evidence implicating Mr. Gordon. Mr. Bandiera had approached the investigating officer with a proposal to resolve the charges against him during the first week of the trial. The matter did not proceed on the second trial date because there were no trial judges available to hear a trial of that length.

[6] It is the delay occasioned in the Superior Court of Justice that Mr. Gordon submits, when considered cumulatively, violates his right to be tried within a reasonable time.

Section 11(b) Analytical Framework

[7] Every person charged with a criminal offence has the right to be tried within a reasonable time. This right is guaranteed by s. 11(b) of the Charter. Section 11 (b) protects both the individual charged and society, which itself has an interest in ensuring that criminal charges against people are promptly and fairly adjudicated.

[8] The analytic framework used to assess the reasonableness of the time that elapses between the date a person is charged and the completion of the trial was set out by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1. A certain amount of delay is inevitable in every case, particularly one as complex as this. To determine how much delay is reasonable, the following 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 person,

c. actions of the Crown,

d. limits on institutional resources, and

e. other reasons for delay; and

4. prejudice to the accused person.

[9] No one factor is determinative. It is not a matter of applying a mathematical formula. Rather, I am required to balance the interests that s. 11(b) is designed to protect against all of the factors that lead to the delay.

[10] The focus of the s. 11(b) analysis is on Crown or institutional delay. The length of that delay is generally determined by deducting any defence, and neutral or inherent delay from the overall delay. The Supreme Court of Canada in R. v. Morin established guidelines of eight to ten months of acceptable Crown or institutional delay in the Ontario Court of Justice and a further six to eight months of Crown or institutional delay in the Superior Court of Justice. These are not inflexible limitation periods.

[11] Mr. Gordon bears the onus of establishing on a balance of probabilities that his right protected by s. 11(b) has been violated.

Issues to be Determined

[12] The parties agreed that the total 61-month delay from Mr. Gordon’s arrest to the anticipated end of his trial is sufficiently lengthy to warrant judicial scrutiny.

[13] The application, therefore, turns upon an examination of the reasons for the delay, an assessment of the prejudice suffered by Mr. Gordon as a result of the delay, and a balancing of interests.

[14] Two significant periods of delay are in dispute. The first disputed delay, which was 188 days, occurred between July 7, 2012 and January 10, 2013 in the Ontario Court of Justice. The second, which was 92 days, occurred between August 23, 2013 and November 22, 2013 in the Superior Court of Justice.

Reasons for the Delay

[15] I do not intend to refer in detail to every court appearance Mr. Gordon made. The Crown and defence counsel have charted all of the court dates in their material and I have read the transcripts of the proceedings from each date.

January 19, 2010 – December 13, 2010

Arrest to Setting Preliminary Hearing Date

[16] Mr. Gordon was arrested on January 19, 2010. He was released on bail on January 25, 2010, and made his first court appearance on March 8, 2010. He was charged with three others - Antonio Bandiera, Davide Compagnoni, and Marco Cipollone.

[17] The first judicial pre-trial was conducted on June 9, 2010. Disclosure had not been completed. Crown counsel indicated that disclosure would be provided to defence counsel by the following week (June 14). Another judicial pre-trial was scheduled for July 6. On July 6, the judicial pre-trial had to be further adjourned to September 10 because defence counsel had only recently received additional disclosure and had not had the opportunity to review it. Still more disclosure was outstanding. August 4 was offered for a further pre-trial but defence counsel was not available. September 10, 2010 was therefore set to continue the judicial pre-trial.

[18] On September 10, the judge conducting the judicial pre-trial was unavailable. Disclosure was still outstanding at that time. The matter was adjourned to December 13. At the December 13 judicial pre-trial, a target date of October 17, 2011 was set for a two-week preliminary hearing.

[19] Between January 19, 2010 and July 5, 2010, a number of preliminary matters were dealt with. A bail hearing was held. Crown counsel provided partial disclosure. A Crown pre-trial and a judicial pre-trial were conducted. These matters take time. They form part of the inherent requirements of every criminal case, and for the purpose of a s. 11(b) analysis, are considered neutral in that the delay caused is not attributed to any party: R. v. Morin, at p. 791.

[20] In this case, the Crown did not make full disclosure until December 13, 2010, almost a year after Mr. Gordon was arrested. The judicial pre-trial was adjourned from June 9 to July 6 to September 10 to December 13. There is no evidence before me about what disclosure was lacking. However, at each court appearance Crown counsel asked that a further judicial pre-trial date be set and advised the sitting justice that additional disclosure was forthcoming. I can only assume that it was necessary to provide this outstanding disclosure before a date for the preliminary hearing could be set. Otherwise, I expect that Crown counsel would have indicated something to the contrary on the record.

[21] Although there is no fixed time period to accomplish the necessary intake activities, I find that eleven months from the date of arrest to the fixing of a date for a preliminary hearing is excessive, even accepting that the case was somewhat complex, involving four accused. Most of this delay resulted from the Crown’s failure to make prompt disclosure. Crown counsel argues that some of the delay between July 6 and September 10 should be allocated to the defence because August 4 was offered to counsel but counsel was unavailable. However, Crown counsel indicated to the court on September 10 that some disclosure was still outstanding. Even if the judicial pre-trial had been conducted on August 4, the matter would have been adjourned again to complete disclosure.

[22] The Court of Appeal in R. v. Steele 2012 ONCA 383, 288 C.C.C. (3d) 255 held that five months was a reasonable intake period for a case of some complexity involving two accused. In my view, six months is a reasonable intake period of time for this case and I attribute January 19 to July 19, 2010 to the inherent time requirements of the case. The delay after that time, when the judicial pre-trial had to be adjourned because disclosure was delivered late to defence counsel, is attributable to the Crown. The period of time between September 10 and December 13, when the judicial pre-trial was adjourned because the judge was unavailable, is attributable to institutional delay.

December 13, 2010 – June 11, 2102

Setting of Preliminary Hearing Date to Committal for Trial

[23] On December 13, 2010, a target date of October 17, 2011 was set for a two-week preliminary hearing. The matter was remanded to March 7, 2011 for a follow-up judicial pre-trial. Defence counsel undertook to file a statement of issues and witnesses by January 14, 2011. On March 7, 2011, Mr. Gordon was remanded to a confirmation date of August 29, 2011. On August 29, 2011, Mr. Gordon’s counsel was ready to proceed.

[24] Mr. Harnett argued that some of the delay between December 13, 2010 and October 17, 2011 should be allocated to institutional delay. There is no evidence before me about the court's ability to accommodate a two-week preliminary hearing prior to October 17, 2011, nor is there any evidence that defence counsel sought an earlier date. On December 13, 2010, Crown and defence counsel simply asked the presiding justice to set October 17, 2011 as the target date for the preliminary hearing.

[25] There is evidence that on August 29, 2011, Mr. Gordon's counsel appeared before the court on a trial confirmation date, indicating that he was ready for the preliminary hearing. Both parties agreed that the delay of 49 days between August 29, 2011 and October 17, 2011 is properly attributable to institutional delay.

[26] The delay of 259 days between December 13, 2010 and August 29, 2011 is properly considered part of the inherent time requirements of the case. In the absence of any evidence to the contrary, I am unable to conclude that four criminal lawyers practising in a busy judicial district would have been available to proceed with a two-week preliminary hearing prior to August 29, 2011.

[27] On October 17, Mr. Gordon requested an adjournment of the preliminary hearing because his counsel, Mr. Sack, was gravely ill. Unfortunately, Mr. Sack passed away on October 23, 2011, and Mr. Gordon had to retain new counsel. He did that quickly, and on November 10, 2011 a new preliminary hearing date of May 14, 2012 was set. Evidence was heard at the preliminary hearing between May 14 and 18, 2012. Judgment was reserved until June 11, 2012, at which time Mr. Gordon was committed to stand trial. There is no dispute between the parties that the 238-day delay between October 17, 2011 and June 11, 2012 is a combination of inherent and defence delay, and is neutral for s. 11(b) purposes.

[28] In summary, I find that the delay in the Ontario Court of Justice is properly attributed as follows:

January 19, 2010 – July 6, 2010 – 168 days – inherent delay

July 6, 2010 – September 10, 2010 – 66 days – Crown delay

September 10, 2010 - December 13, 2010 – 94 days – institutional delay

December 13, 2010 – August 29, 2011 – 259 days – inherent delay

August 29, 2011 – October 17, 2011 – 49 days – institutional delay

October 17, 2011 – May 14, 2012 – 210 days – defence delay

May 14, 2012 – June 11, 2012 – 28 days – inherent delay

[29] Although the matter remained in the Ontario Court of Justice for 874 days, a lengthy period of time, I have found that the total institutional and Crown delay amounted to 209 days.

June 11, 2012 – September 9, 2013

Committal for Trial to First Trial Date

[30] In the Superior Court, only the charges against Mr. Gordon and Mr. Bandiera remained. After Mr. Gordon was committed to stand trial on June 11, 2012, he was ordered to appear in the Superior Court of Justice on June 27, 2012. The matter was adjourned to September 4, 2012 for a judicial pre-trial. Following the judicial pre-trial, Crown counsel was prepared to set a trial date, but defence counsel was not. The matter was adjourned to October 19 at the request of defence counsel to finalize retainer arrangements.

[31] On October 19, a four-week trial was set for September 9, 2013 with or without counsel. Mr. Harnett was present on October 19. Mr. Tsimiklis, counsel for Mr. Bandiera, indicated to the court that they had secured the date of September 9, 2013 from the trial coordinator, and wished to preserve it hoping "to be fully retained by then." Neither Mr. Tsimiklis, nor Mr. Harnett indicated that they were available for trial earlier than September 9. Neither of them indicated that they sought an earlier trial date from the trial coordinator or that they wanted a trial date earlier than September 9. Mr. Tsimiklis simply told the court that they hoped to be fully retained by that date. June 14, 2013 was set as a trial confirmation date.

[32] There is no evidence about what happened on June 14, 2013. On July 15, 2013, Mr. Harnett became counsel of record for Mr. Gordon and a designation was filed permitting Mr. Harnett to appear on Mr. Gordon's behalf. An agent, who appeared on behalf of Mr. Harnett on July 15, 2013, informed the court that Mr. Harnett was prepared for trial. The matter was therefore adjourned to September 9.

[33] The parties agreed that the delay between June 11 and September 4, 2012 was due to normal intake activities, such as the scheduling and conduct of a judicial pre-trial. They also agreed that the delay between September 4 and October 19, 2012 to permit retainer arrangements to be finalized is attributable to the defence.

[34] Mr. Harnett submitted that at least part of the 325-day delay between the setting of the trial date on October 19, 2012 and the trial date of September 9, 2013 is institutional delay. The evidence before me is that Mr. Harnett did not go on the record as counsel for Mr. Gordon until July 15, 2013. On September 9, 2013, he indicated to Justice Campbell that he had only been retained in the summer. While I accept, based on the affidavit of Terri Brown, that Mr. Harnett had room in his calendar to conduct this trial in November and December 2012, and January 2013, Mr. Harnett did not provide that information to the presiding justice on October 19, 2012, nor is it indicated on the trial confirmation form completed by the trial coordinator. In fact, it is contrary to the trial confirmation form, which notes that September 2013 is the first available date for defence counsel.

[35] The law is well settled that institutional delay “starts to run when the parties are ready for trial but the system cannot accommodate them.” See R. v. Morin, at pp. 794-795; R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, at para. 2. In short, there is no evidence that Mr. Harnett was prepared to conduct this trial before July 15, 2013, and therefore institutional delay only began to run on that date. In my view, it is reasonable to allocate the time between July 15 and September 9, 2013 (56 days) as institutional delay. The remaining 269-day delay is attributed to the inherent time requirements of the case.

[36] In summary, I attribute the delay during this time period as follows:

June 11, 2012 – September 4, 2012 – 85 days – inherent delay

September 4, 2012 – October 19, 2012 – 45 days – defence delay

October 19, 2012 – July 15, 2013 – 269 days – inherent delay

July 15, 2013 – September 9, 2013 – 56 days – institutional delay

September 9, 2013 – February 27, 2015

First Trial Date to Anticipated End of Trial

[37] This time period is one of the main areas of contention between the parties. The issue centers on the fact that, while a pre-trial motion was being argued and decided during the first week of the trial, Mr. Bandiera approached the investigating officer with a proposal to resolve the charges against him and testify against Mr. Gordon. On September 16, Officer LeMaitre advised Mr. Harnett and Ms. Edward that Mr. Bandiera was going to provide a statement to police the following day implicating Mr. Gordon. As a result of this significant change in the case that Mr. Gordon had to meet, Mr. Harnett sought an adjournment of the trial. Rather than adjourn the trial to continue before him, Justice Campbell declared a mistrial to facilitate the setting of a speedier trial date.

[38] On September 17, the matter was adjourned to September 27 for a judicial pre-trial. On September 27, a three-week jury trial was set for June 2, 2014. This was the first date Mr. Harnett was available to do the trial. A trial confirmation date of May 1 was set. On May 1, the matter was adjourned to May 8, at which time Mr. Harnett appeared on behalf of Mr. Gordon to confirm the trial date. Mr. Harnett had mis-diarized the trial as beginning on June 4. Crown counsel did not object to the confirmation of June 4 as the commencement date of the trial.

[39] On June 4, there was no judge available to hear the trial. The matter was adjourned to June 5 before Justice Spies, who was available to hear it if it was a judge alone trial. Mr. Gordon was prepared to re-elect his mode of trial to judge alone. Crown counsel was not prepared to consent to the re-election. A new trial date of February 9, 2015 was set, and the matter was adjourned to July 29, 2014 to be spoken to.

[40] Mr. Harnett argued that the delay caused by the declaration of a mistrial on the first trial date is delay attributable to the Crown. According to Mr. Harnett, the Crown made a strategic decision to abandon the prosecution against Mr. Bandiera to shore up the evidence against Mr. Gordon. Ms. Edward argued that it is delay attributable to the defence because Mr. Harnett requested the adjournment.

[41] In my view, Mr. Gordon's trial was adjourned on September 17, 2013 for a sound and unforeseeable reason for which no one can be faulted. Mr. Bandiera's statement was new evidence that came to the attention of Crown counsel during the first week of trial. It is not evidence that Crown counsel could have obtained before that date. Mr. Bandiera's offer to provide a statement that implicated Mr. Gordon in the robbery was "one of those things that happens from time to time in the criminal process for which no one can be faulted and which almost inevitably requires an adjournment and rescheduling": R. v. Meisner, [2004] O.J. No. 3812, 190 O.A.C. 24 (C.A.) at para. 3.

[42] In Meisner, the trial judge was advised just before the start of the trial that he had a potential conflict of interest. The trial was adjourned for three months because no other judges were available to hear it. When dealing with the issue of how to attribute the three-month delay, the Court of Appeal stated the following at para. 3:

Just as intake time is allowed when a case initially comes into the criminal justice system, it is inherent in the process that some time must be allowed to reschedule matters that are adjourned for reasonable and unforeseeable reasons for which no one can be faulted. In this case, the system was ready to accommodate the appellant some three months after the first scheduled trial date. In our view, this was a reasonable accommodation and we would regard that three-month period as neutral for the purposes of the s. 11(b) assessment.

[43] Similar findings were made by the Court of Appeal in R. v. Allen, [1996] O.J. No. 3175, 110 C.C.C. (3d) 331 and by MacDonnell J. in R. v. Thomas 2011 ONSC 7005. In Allen, the trial was not completed within the estimated time because the defence counsel who conducted the pre-trial withdrew prior to the trial and the new defence counsel did not make certain concessions the previous counsel had said he would make. The trial had to be adjourned for six months. At para. 27, the court stated the following:

When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case. … Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate.

[44] On the first day of the preliminary hearing in the case of R. v. Thomas, Crown and defence counsel learned that the complainant's physician, who was a witness, had a much larger file about the complainant than had been disclosed to the defence. Defence counsel was unwilling to cross-examine the complainant without a copy of the complete file. The preliminary hearing was therefore adjourned. Justice MacDonnell held that the discovery of the doctor's larger file was "one of those things that happens from time to time in the criminal process for which no one can be faulted and which almost inevitably requires an adjournment and rescheduling." He characterized the delay occasioned by the adjournment as part of the inherent time requirement of the case.

[45] Like Meisner, Allen, and Thomas, this was not a case where a lack of institutional resources or the Crown's failure to fulfill its obligations resulted in the adjournment of the trial. This was a case of new evidence coming to light that the Crown wished to lead at the trial; evidence that the Crown could not have anticipated or obtained earlier, and in response to which defence counsel properly and reasonably sought an adjournment to prepare to meet it.

[46] The trial was adjourned to June 2, 2014; the first date Mr. Harnett was available to conduct the trial. Based on the authorities I have set out, I have concluded that the delay between September 9, 2013 and June 2, 2014 is properly characterized as part of the inherent time requirement of the case and is neutral in the s. 11(b) calculus.

[47] The two-day delay between June 2 and June 4, 2014 caused by Mr. Harnett mis-diarizing the commencement date of the trial is delay caused by the defence, notwithstanding that Crown counsel consented to it. The delay between June 4, 2014 and February 27, 2015, the anticipated end of Mr. Gordon's trial, was caused by the lack of a trial judge available to hear a three-week jury trial, and is properly characterized as institutional delay.

[48] I do not want to leave this time period without commenting on one further matter. The matter was scheduled for trial on September 9, 2013. On August 30, Mr. Harnett filed an application to exclude certain identification evidence. Crown counsel filed a brief response, but asked for an adjournment on September 9 to September 11 to prepare her argument. The adjournment was granted. Ms. Edward argued that this delay ought to be attributed to the defence because the application was not filed 30 days in advance of the trial as required by the rules. Mr. Harnett argued that the delay was part of the inherent time requirement of the case as he had indicated at the judicial pre-trial conducted one year earlier that he would be disputing the admissibility of this evidence and the Crown should therefore have been prepared to argue it. In addition, the argument Mr. Harnett was advancing was the same argument he advanced at the preliminary hearing.

[49] Although this delay is insignificant in the s. 11(b) calculus, and was not the main cause of the abandonment of the first trial date, I pause to note two things. Firstly, Crown Attorneys are not required or expected to prepare to argue applications in the absence of a formal application. Often, defence counsel, with good reason, indicate at judicial pre-trials their intention to bring certain applications that are in fact never brought. Client instructions can change between the pre-trial and the trial, as can counsel's litigation strategy. Secondly, the rule requiring applications and material to be filed 30 days in advance of the trial date also gives the trial judge the opportunity to review the material and prepare for the argument. In this case, Justice Campbell had not reviewed the material prior to the commencement of the trial and required time to do so.

[50] In summary, I attribute the delay during this time period as follows:

September 9, 2013 – September 11, 2013 – 2 days – defence delay

September 11, 2013 – June 2, 2014 – 264 days – inherent delay

June 2, 2014 – June 4, 2014 – 2 days – defence delay

June 4, 2014 – February 27, 2015 – 269 days – institutional delay

Conclusion on Attributable Delay

[51] I have concluded that of the total 1866-day delay, 1,073 days or 35¼ months are properly attributable to the inherent time requirement of the case, 259 days or 8½ months are attributable to defence delay, and 534 days or 17½ months are attributable to Crown and institutional delay, falling slightly short of the upper end of acceptable institutional delay of 18 months set out in R. v. Morin.

Prejudice

[52] The primary purpose of s. 11(b) is to protect the accused’s rights to security of the person, liberty and a fair trial. In R. v. Morin, Justice Sopinka described this protection more specifically at p. 786 as follows:

The right to security of the person is protected in s 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceeding. The right to liberty is protected by seeking to minimize exposure to the restriction on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

[53] The focus of my analysis of the prejudice suffered by Mr. Gordon must be on the prejudice arising from the delay and not on the prejudice arising from being arrested and charged with serious criminal offences: R. v. Kovacs-Tatar, [2004] O.J. No. 4756, 192 C.C.C. (3d) 91 (C.A.)

[54] Mr. Gordon filed an affidavit on this application and testified before me about the prejudice that he says he has suffered. He asserts that two or three weeks following his arrest, he collapsed, and was hospitalized for one week in the cardiac unit. He has suffered ongoing anxiety and sleeping difficulties. In addition, Mr. Gordon has been on bail for the past five years and subject to certain restrictions on his freedom, which he has resented.

[55] In terms of the prejudice to Mr. Gordon's liberty interests, he was arrested on January 19 and released on January 25, 2010 with a number of conditions, including a curfew between the hours of 11:00 p.m. and 6:00 a.m., and a prohibition on entering the City of Toronto unless accompanied by his sureties, who were his parents. On December 22, 2010, his bail was varied on consent, permitting Mr. Gordon to be in Toronto for medical appointments and meetings with his counsel, and changing the curfew to permit Mr. Gordon to be outside of his residence for the purposes of employment. The recognizance was further varied on consent on July 13, 2011 after Mr. Gordon's house was damaged in a fire. This variation permitted him to reside at an address approved of by his sureties. A final consent variation to the recognizance occurred on June 18, 2012 when the curfew was varied to permit Mr. Gordon to be out of his residence with the permission of his sureties.

[56] There is no evidence that the curfew was a significant restriction on Mr. Gordon’s liberty. During the period of time that he has been on bail, Mr. Gordon has been employed at a variety of jobs, he got married, and has had a child. In my view, the prejudice to Mr. Gordon's liberty interest from the delay has been minimal. There have been relatively few restrictions on his liberty, particularly since June 2012.

[57] Mr. Gordon did not suggest that his ability to make full answer and defence to these charges – i.e. his ability to lead evidence, cross-examine witnesses or raise defences – had been compromised by the delay itself. Rather, he suggested that his ability to make full answer and defence will be diminished by the fact that he can no longer afford to retain a lawyer to defend him. He testified that he has exhausted all of his financial means to retain counsel and will be forced to represent himself at his trial.

[58] With respect to the financial resources Mr. Gordon had to invest to retain a lawyer, I note that his need to incur legal fees was not primarily driven by delay. Institutional delay accounted for only one adjournment of the trial. It is unfortunate that his first counsel died prior to the preliminary hearing requiring him to retain another lawyer. However, this is an expense he would have incurred irrespective of any delay. Mr. Gordon was arrested on January 19, 2010 and Mr. Sack died on October 23, 2011. It is unlikely that a trial of this complexity could have been completed prior to Mr. Sack’s passing, no matter how expeditiously the case had proceeded. Also, the trial did not proceed on the first trial date because new evidence came to the Crown’s attention, necessitating an adjournment to allow Mr. Gordon’s counsel to review it. The additional expense of paying for counsel for a further trial date did not flow from delay. Finally, Mr. Gordon was required to retain counsel when he was arrested and charged with accessory after the fact to murder on March 27, 2013. This too would have been a burden on his financial resources that had nothing to do with the delay in having this trial heard. I accept that the delay occasioned by the lack of judicial resources on June 4, 2014 to hear Mr. Gordon’s trial resulted in additional expense to Mr. Gordon, and is entitled to some weight in the analysis of the prejudice he has suffered as a result.

[59] Mr. Gordon testified about the effect the charges have had on his mental health, essentially asserting that he has suffered prejudice to his security of the person. I do not intend to minimize the stressful effect of being charged with serious criminal offences, particularly for a first offender. However, the prejudice Mr. Gordon says he has suffered is not due to the delay, but is more accurately attributed to having been arrested and charged. In his affidavit, Mr. Gordon described his arrest as violent, with tactical police officers entering his home with flashbombs and battering rams while he was sleeping. He testified that he saw a psychiatrist after his arrest for post-traumatic stress disorder. Although the delay has not helped his stress and anxiety, he testified that after his arrest for these charges he “was basically damaged goods at that point.”

[60] Mr. Harnett argued that prejudice can be inferred from the length of the delay. Ms. Edward concedes that the length of time Mr. Gordon has been under a cloud of suspicion and exposed to the stress of outstanding criminal charges gives rise to some inferred prejudice because of the length of time.

[61] I accept that some weight must be given to inferred prejudice in this case. As Justice Sopinka held at para. 61 in R. v. Morin, "in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn." The overall delay in this case is of such a length that it is reasonable to infer that Mr. Gordon has suffered some prejudice as a result.

[62] However, as the Court of Appeal noted in R. v. Seegmiller, [2004] O.J. No 5004, 191 C.C.C. (3d) 347 at para. 20, inferred prejudice is reduced by the fact that Mr. Gordon was not incarcerated pending his trial; his bail conditions were not onerous and were varied on consent on several occasions; and his fair trial rights have not been impaired as a result of the delay.

Balancing

[63] Although the primary purpose of s. 11(b) is the protection of the rights of the accused person, it also engages the rights of the community, which has an interest in ensuring that those who break the law are dealt with according to law: R. v. Askov, [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449 at para. 44. Justice Sopinka in R. v. Morin notes at p. 787 that, "As the seriousness of the offence increases so does the societal demand that the accused be brought to trial."

[64] In the final result, I have found that the total of Crown and institutional delay was 17½ months, slightly less than the 18 months suggested as an upper limit by the Supreme Court of Canada in R. v. Morin for a case that is to be tried in the Superior Court. Of course, the guidelines are not limitation periods, and the reasonableness of a delay is not to be determined by a mathematical formula. Rather I am required to balance the factors set out in R. v. Morin with society’s interest in having criminal charges determined on their merits.

[65] The charges against Mr. Gordon are serious. They involve a robbery at gunpoint in which the victims were bound and assaulted. Society has a heightened interest in having such charges dealt with on their merits.

[66] Having balanced all of the factors I have outlined, including the actual and inferred prejudice to Mr. Gordon's rights with the length of the delay and the reasons for it, I am not satisfied that Mr. Gordon has established that his rights protected by s. 11(b) of the Charter have been violated, and his application is therefore dismissed.

Corrick J.

Released: March 18, 2015

CITATION: R. v. Gordon, 2015 ONSC 1757

COURT FILE NO.: CR-12-10000403-0000

DATE: 20150318

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANDREW GORDON

RULING ON APPLICATION TO STAY PROCEEDINGS FOR DELAY

Corrick J.

Released: March 18, 2015