BARRIE COURT FILE NO.: 14-240

DATE: 20150812

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CLIFFORD CHADWICK DAWSON

Applicant

David F. O’Connor, for the Respondent Crown

M. Osadet, for the Applicant

HEARD: July 3, 2015, July 20, 2015

RULING ON SECTION 11(b) APPLICATION

QUINLAN J.:

Overview

[1] The applicant stands charged with offences of production, possession for the purpose of trafficking and possession of marijuana. As a result of an investigation by a number of police services, Barrie Police Service obtained a search warrant for a location in Barrie. On December 17, 2012, police arrested the applicant, who was the lessee of a unit where they located 166 marijuana plants in various stages of growth. The applicant had previously obtained a licence to grow fifty-five marijuana plants, the legality of which is in issue, but it had expired prior to his arrest. The applicant was eventually joined with three co-accused on some of these charges. Originally there were a number of informations. Eventually a joint information was laid charging the four accused with various offences under the Controlled Drugs and Substances Act (CDSA). Charges against the three co-accused were eventually stayed or withdrawn. Dates for a Dawson application[^1] and the preliminary hearing were scheduled for April 30, 2014 and May 29 and 30, 2014, respectively. The preliminary hearing was completed on October 10, 2014 and the applicant was committed for trial in the Superior Court of Justice with a judicial pre-trial date set for December 19, 2014. Trial with a jury is scheduled for 5 days commencing September 21, 2015.

[2] The applicant seeks a stay under s. 24(1) of the Charter of Rights and Freedoms on the basis that the delay in the Ontario Court of Justice breached the applicant’s rights under s. 11(b).

History of the Proceedings

[3] The applicant has filed transcripts from which the following history of the proceedings can be determined:

• On December 18, 2012, the applicant and two others attended in bail court. Their matter was adjourned three days so that police could continue their investigation.

• On December 21, 2012, the applicant and two others attended for their bail hearing. The applicant was released on a recognizance. Terms included that he reside with his surety and obey the rules of the home; obey a curfew at all times except for the purpose of employment, while with either surety, or to attend scheduled appointments with counsel; not use or possess certain telecommunication devices; not possess or purchase marijuana grow equipment; not communicate with his co-accused or be near them; not use, possess or consume any non-medically prescribed, restricted or prohibited drugs; and provide a list of addresses of bank machines and times of work at these machines to the officer in charge[^2]. The matter was adjourned to January 28, 2013.

• On January 28, 2013, the first appearance for the applicant and two others, disclosure was not ready. There were separate and joint informations before the court. The Crown noted that it would be proceeding by indictment. The applicant stated he would be getting a lawyer and sought a four week adjournment for “acceptance of disclosure”. The Crown wanted to keep things “moving” and an adjournment of one and a half weeks was granted.

• On February 6, 2013, initial disclosure was provided. Counsel for one of the applicant’s co-accused sought three to four weeks to review “what is quite a bit of initial disclosure and have preliminary resolution discussions” with the Crown. The applicant stated that he was “still in the process of obtaining the information to obtain the search warrant disclosure”, so he was agreeable to “putting it off”.

• On February 27, 2013, the applicant attended along with three co-accused. The three co-accused had counsel. Ms. Osadet was counsel for the third co-accused.[^3] On that date, the applicant advised that he was going to act on his own with the assistance of a paralegal. The agent retained by Ms. Osadet, as counsel for one of the co-accused, sought four weeks to review initial disclosure; the applicant indicated that he was waiting for additional disclosure.

• On March 27, 2013, counsel for the co-accused sought four weeks to review the additional disclosure that had been provided. The court adjourned the matter three weeks.

• On April 17, 2013, counsel for the co-accused sought to set a date for the judicial pre-trial in the Ontario Court of Justice. The applicant stated that he still had to receive his “full disclosure”. Defence counsel for the other co-accused advised that they were awaiting some informations to obtain search warrants. A date of May 22, 2013 was set for the judicial pre-trial.

• On May 22, 2013, the judicial pre-trial was not reached. It was noted that it was difficult to set a date for a new pre-trial because, since the applicant was self-represented, the judicial pre-trial had to be in open court; otherwise it could have been handled by phone. The trial coordinator was not available so the matter was adjourned to set a date for the judicial pre-trial.

• On May 27, 2013, the matter was adjourned to a judicial pre-trial on July 22, 2013.

• On July 22, 2013, the matter was up for the judicial pre-trial. The Standing Federal Agent’s conflict of interest (she had previously represented the applicant) was raised by the Crown. Another Crown had been present in court on each attendance and a new Crown was present to conduct the pre-trial. At that point there were seven informations before the court. The Crown indicated that it would lay a new information once new Crown counsel on the matter had a chance to review the entire file. The Crown suggested a preliminary hearing under s. 540(7) of the Criminal Code. Defence counsel for a co-accused raised concern about the number of informations, the time elapsing and prejudice to his client. The applicant agreed with the court that he would like to move things forward as well. At that pre-trial, the applicant had attended with an unlicenced paralegal. He was strongly encouraged by the court to get a lawyer. The applicant agreed that the “time is getting closer” for him to make decisions about his “options”. The matter was adjourned for the Crown to lay a new information and for all accused persons to decide on their elections and whether they wished to have a preliminary hearing.

• On August 7, 2013, a new replacement information was before the court to clarify the charges on which the Crown was proceeding with respect to each of the accused. The Crown sought two weeks to complete its review of the file and provide additional disclosure. Defence counsel for one of the co-accused noted that delay and prejudice were becoming an issue; s. 11(b) was specifically raised for the first time.

• On August 21, 2013, charges were stayed or withdrawn against two of the applicant’s co-accused. The applicant was still in the process of retaining counsel. The Crown suggested that there be a further judicial pre-trial for the applicant on October 10, 2014; the applicant requested that the pre-trial be held September 23, 2014.

• On September 23, 2013, a second judicial pre-trial was held. This pre-trial involved only the applicant. At that point, charges against the third co-accused were resolved and Ms. Osadet had been retained and was on record as counsel for the applicant. The applicant’s counsel noted that three days were required for the preliminary hearing; she had yet to file a statement of issues and witnesses and was advised to do so before the preliminary hearing was set. The Crown needed to obtain leave dates for the officers before the dates were set. The matter was adjourned two days to set a date for the preliminary hearing as the applicant’s counsel did not want to lose April and May 2014 dates, which were noted to be the first available dates for a three day preliminary hearing.

• On September 25, 2013, both counsel attended with a “green sheet” indicating available dates. Based on the availability set out on that form, the court noted that it appeared the matter was going to be dealt with on April 30, May 29 and May 30, 2014. Those were dates available to the applicant’s counsel when the Crown’s witnesses were also available. Applicant’s counsel filed a Statement of Issues and noted that thirteen witnesses were required. April 30, 2014 was set for the Dawson application and the preliminary hearing was set for an additional two days, being May 29 and 30, 2014.

• On October 18, 2013, the applicant, through counsel, filed an amended Statement of Issues. It was noted that there had been a preliminary Statement of Issues filed before and the matter had been adjourned to file a new statement and to confirm dates. The applicant’s counsel now wanted to hear from fourteen police witnesses. In addition there was the Dawson application. Committal was still in issue. The matter was adjourned to February 28, 2014 for a status hearing to confirm the April and May dates for the Dawson Application and the preliminary hearing.

• On February 28, 2014, neither counsel attended, although both were required to be present. The status hearing was adjourned to March 17, 2014.

• On March 17, 2014, the applicant’s counsel asked that the April 30 date for the Dawson application be vacated and that the preliminary hearing dates of May 29 and 30 remain. The Crown questioned whether the applicant’s counsel wanted to start the preliminary hearing on April 30; the Crown was agreeable to having its witnesses available for April 30. The applicant’s counsel questioned the wisdom of doing so given that she was unaware of the availability of the officers. The Crown later indicated its agreement to vacate the date of April 30 but keep the two May dates “in a row”.

• On May 29, 2014, the applicant’s counsel arrived approximately 40 minutes late for court. Crown and the applicant’s counsel then had some discussions. Court began at 10:43 a.m. The Crown called three witnesses. In the midst of examination-in-chief of one of the Crown witnesses, the court adjourned so that it could rule on whether to allow that officer to give expert evidence. There was an uncertainty as to the number of witnesses remaining: applicant’s counsel said there were six but the Crown said it depended on the ruling and that the Crown would accommodate the applicant if counsel wanted to hear from a witness “for some reason”.

• On May 30, 2014, the court was delayed in starting because of other matters. The Crown was only available until 1:00 p.m. because of a funeral for a family member. The applicant’s counsel noted that this would create delay. The applicant’s counsel raised the issue about the existence of a witness referred to in the report of the officer that was proposed to be an expert. Applicant’s counsel indicated that committal was not conceded. The court gave its ruling on the voir dire. Further examination-in-chief of the third officer was conducted and the Crown sought to have that officer cross-examined on the next day so the Crown could leave earlier for the funeral. The applicant’s counsel again raised the issue of the witness and said she would need to bring an application in relation to that witness; it is not clear whether such an application was ever brought. At the time the matter was adjourned, the Crown advised that less than one day would be required to complete the preliminary hearing; the applicant’s counsel said “a day maybe”. The court suggested two one-half days to assist in having the matter heard in a more timely fashion. Applicant’s counsel presented her full schedule and Crown raised the possibility of the applicant bringing an application under s. 11(b). The court offered June 2, June 6, July 7 and July 16 as dates. The applicant’s counsel requested that the matter go to the afternoon of June 2 and July 16 due to her availability.

• On June 2, 2014, the applicant’s counsel was not present. She had an agent attend who provided a letter noting that she had overlooked previously scheduled obligations; she requested that the matter go to July 16, 2014.

• On July 16, 2014, the Crown was not available because of a continuing trial. The applicant’s counsel, “understanding his position”, was not “making any waves about the fact [the Crown is] is asking for this adjournment”. The court had available dates of September 9, 12 and 18 and October 10. Crown witnesses were available September 9 and 18 and October 10. The applicant’s counsel stated that the Crown had advised her that he was “only bringing the one witness back” so one-half day was required and the applicant’s counsel suggested October 10 for one-half day.

• On October 10, 2014, the examination-in-chief of the witness who had been in the witness box on May 29, 2014 was completed and he was cross-examined. The applicant conceded committal. Dates of October 24, 2014 and December 5 and 19, 2014 were offered for the Superior Court of Justice judicial pre-trial. The applicant’s counsel was not available October 24 or December 19; the Crown was not available on December 5. The applicant’s counsel cleared her schedule for December 19.

• On December 19, 2014, the first appearance in the Superior Court of Justice, the matter was held down because the applicant’s counsel had not filed the judicial pre-trial form in advance. The judicial pre-trial eventually commenced. The court noted that the Crown had “further work to do” and that the applicant’s counsel had to “fill out [her] form”. The court set a target date of April 23, 2015 for the s. 11(b) application and adjourned the matter to January 9, 2015 to continue the judicial pre-trial.

• On January 9, 2015, the date for the section 11(b) application was confirmed. Trial dates commencing July 27, 2015 were offered. Applicant’s counsel declined five weeks offered commencing July 27, 2015 and requested that the matter be set for trial for September 21, 2015.

• On April 23, 2015, the section 11(b) application was adjourned to July 3, 2015 at the request of the applicant and on consent of the Crown.

The Law

[4] The court is required to balance four factors: the overall length of the delay; waiver of any individual time periods; the reasons for the various periods of delay; and prejudice to the interests protected by this particular right: R. v. Askov (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.); R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.).

i. The length of the overall delay

[5] It is necessary for the court to conduct a further inquiry into the other three factors “if the period [of delay] is of sufficient length as to raise an issue as to its reasonableness”: Askov, supra, at p.466; Morin, supra, at p.14.

[6] There is an overall delay of thirty-three months to bring this case to trial.

[7] The applicant and the Crown agree that the length of overall delay in this matter is sufficient to warrant further inquiry.

ii. Waiver of time periods

[8] I agree with the position of the parties that there were no waivers of s. 11(b) rights in any point in the history of the proceedings.

iii. Reasons for delay

[9] To determine the reasons for delay it is necessary for the court to undertake an objective analysis of each period of delay in order to determine its cause. The five traditional categories of causes are: inherent time requirements of the case; actions of the defence; actions of the Crown; limits on institutional resources; and other miscellaneous causes such as judicial delays. Some delays are said to “weigh against the Crown”, some delays are said to “weigh against the defence” and some delays are “neutral”. Delays caused by the accused’s own actions “will justify an otherwise unreasonable delay”, delays caused by the Crown or by inadequate resources “cannot be relied upon…to explain away delay that is otherwise unreasonable”, and delay due to the inherent requirements of the case “is neutral and does not count against the Crown or the accused”: R. v. Richards, 2010 ONSC 6202, [2010] O.J. No. 4958 at para. 15; Askov, supra, at pp. 477-481 and 483; Morin, supra, at pp.16-23; R. v. MacDougall (1998), 1998 CanLII 763 (SCC), 128 C.C.C. (3d) 483 at p.500 (S.C.C.).

[10] The determination of when delay becomes unreasonable within the meaning of s. 11(b) is not simply a function of the passage of a certain period of time, rather, the court must undertake a flexible and functional approach. If the entire time period is not unreasonable, then there is no violation of s. 11(b) even if one or more individual portions of that entire period of time, when viewed in isolation, might appear excessive: R. v. Chenier, 2013 ONSC 2376, 2013 CarswellOnt 4818 at para. 7; R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 at p. 345 (Ont. C.A.); affirmed at 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700.

December 17, 2012 to May 22, 2013

[11] At the hearing, the applicant took the position that the Crown was not ready to proceed with the judicial pre-trial on May 22, 2013 because of the conflict with the Standing Federal Agent. The Crown also had failed to lay a joint-information, which it should have done months before. Accordingly, all the delay up to July 22 should be attributed to the Crown because substantial delay was caused due to the conflict. As such, the applicant has attributed none of this time to the inherent time requirements of the case. In the alternative, the applicant submits that a minimum of two months of the time between the date the applicant was charged (December 17, 2012) and the first date scheduled for the judicial pre-trial in the Ontario Court of Justice (May 22, 2013) should be attributed to the Crown because of delay that was occasioned because of the Standing Federal Agent’s conflict of interest. The Crown submits that the initial time period to May 22, 2013, which I calculate as 154 days, should be attributed to the inherent time requirements of the case and is, therefore, to be assigned neutral weight in the s. 11(b) analysis.

[12] Neutral intake periods include the time needed to arrange bail, retain counsel, prepare disclosure and review it, request further disclosure and prepare for judicial pre-trials. Accordingly, they vary in length depending on the complexity of the case. An extremely simple case may require an inherent intake time of two months and a very complex case may require over eleven months: Richards, supra, at para. 18.

[13] After February 6, 2013, the applicant repeatedly sought adjournments for the purpose of obtaining additional disclosure or “full disclosure”. I have no evidence as to the disclosure which was outstanding, save for the comments in the transcripts that it related to informations to obtain search warrants. That disclosure would not have justified the delay of preliminary procedural steps. The Stinchcombe obligation is to complete “initial disclosure” prior to election and to then provide “continuing” disclosure when additional information is received during the period leading up to trial: R. v. Kovacs-Tator (2004), 2004 CanLII 42923 (ON CA), 192 C.C.C. (3d) 91 (Ont. C.A.) at para. 47; R. v. Stinchcombe (1991), 1991 CanLII 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.) at pp.13-14.

[14] I am not satisfied that any of the initial five months of delay was due to the actions of the Crown. Although it is arguable that some of the delay in this initial five-month period was due to the actions of the applicant in adjourning to request further disclosure, I am satisfied that this period is properly considered as part of the inherent time requirements of the case and should be accorded neutral weight in the s. 11(b) analysis. The criminal charges against the applicant are relatively complex. At times there were four accused and charges under both the CDSA and the Criminal Code. The matter involves a number of informations to obtain search warrants and an investigation with a task force set up by two police services. There are tips from confidential informants and an undercover officer was utilized. Five months is a reasonable amount of time in this case for an inherent intake period.

May 22, 2013 to July 22, 2013

[15] The next period of time is the two months or sixty days from the time the judicial pre-trial could not be reached to the second date for the judicial pre-trial. A review of the transcripts discloses that, to this point, the fact that the Standing Federal Agent was in a conflict of interest had no bearing on the adjournments. I find that this sixty day period should be considered as attributable to institutional delay.

July 22, 2013 to September 25, 2013

[16] After the judicial pre-trial, there were a number of adjournments before the date for the preliminary inquiry was eventually set. Part of this time was required for the defence to determine what their election would be, part was required for the Crown to lay a new replacement information, determine the reasonable prospect of conviction in relation to the four accused and provide additional disclosure, and part was the time to set a further judicial pre-trial with solely the applicant as the accused remaining standing. I am satisfied that, of the period July 22, 2013 to September 25, 2013, sixteen days should be attributable to the defence as that time was provided to the defence to determine their election. The remaining 49 days balance should be attributable to the Crown: had the Crown reviewed the material in advance of the judicial pre-trial on July 22, the further pre-trial date of September 23 may very well not have been required.

September 25, 2013 to October 10, 2014

[17] On September 25, 2013, dates for the Dawson application and preliminary hearing were set. Early dates were not sought by the applicant or the Crown. Both seemed content to accept the dates offered by the court. The first date offered was April 30, 2014. Crown and defence were both available and that date was chosen for the Dawson application. The Crown was not available May 1 or 2, and neither Crown nor defence were available three other days in early May. The matter was set for two days (May 29 and 30) for the preliminary hearing.

[18] Systemic or institutional delay is “the period that starts to run when the parties are ready for trial but the system cannot accommodate them”: Morin, supra, at pp. 18, 26-27. Here, the parties did not indicate when they would be available for the preliminary hearing. It can be inferred that counsel with other commitments would not be immediately available and that some additional time would also be needed to prepare for the preliminary hearing: Richards, supra, at para. 29. As a result, the period of neutral or inherent delay would be lengthened and the period of institutional or systemic delay would be shortened.

[19] In this case, it is fair to infer that defence would not have been ready for the preliminary hearing for a minimum of three months. I infer this because of comments made by the applicant’s counsel regarding her unavailability when the preliminary hearing did not complete in May and July 2014. Accordingly, I find that, of the time from September 25, 2013 to April 30, 2014, the day the preliminary hearing could have commenced, three months or ninety days should be attributable to neutral or inherent delay and one hundred and twenty-seven days is attributable to institutional or systemic delay.

[20] The Crown was not available from May 1 to May 29 and these twenty-nine days are properly attributable to the Crown.

[21] There are a number of factors that come into play in the time period after May 30. The applicant sought three days so that there could be one day for a Dawson application and two days for the preliminary hearing. The Dawson application was ultimately abandoned. The applicant did not seek to utilize the date set for the Dawson application. This delayed the commencement of the matter one month and lost a day that had been set aside for this matter. The applicant initially sought fourteen police witnesses and contested committal. Eventually the Crown called three police witnesses and the applicant conceded committal. Realistically, this was a one and a half to two day preliminary hearing.

[22] On October 10, 2014, the preliminary hearing was finished within forty-five minutes of court time. The third Crown witness completed his evidence, the applicant conceded committal and the applicant was committed for trial in the Superior Court. Had the applicant utilized April 30, 2014, the preliminary hearing could have been completed on May 29 or, at the latest, May 30. That would have allowed approximately two-and-one-half days for what eventually took one and one-half days. Problems began to arise on May 30 when the Crown wanted to leave early because of a family funeral. On June 2, 2014, the applicant’s counsel had prior commitments. On July 16, 2014, the Crown was not available because of a continuing trial. What could have ended on May 30, at the latest, did not end until October 10, 2014.

[23] Delays that are “voluntarily undertaken” or that the “accused chooses” for some proper defence purpose are properly characterized as attributable to actions of the accused: Richards, supra, at para. 26; Morin, supra, at pp.17-18; Askov, supra, at p.483. I find that some of the delay was caused for a defence-related purpose. The Dawson application that was originally sought was abandoned and the applicant did not seek or apparently even wish to utilize the April 30 day for the preliminary hearing. The transcript discloses that the Crown was prepared to do so. It is this failure to utilize this day that led to the piecemeal approach to the completion of the preliminary hearing. Some of this delay should be attributable to the defence. However, after the matter was not reached on June 16 due to the Crown’s continuing trial, the Court was unable to offer another preliminary hearing date until September 9. I find it is appropriate to assign a delay of May 30 to July 16 to the applicant, a period of 47 days. In addition, the applicant was not available on the next possible date of September 9, and in fact suggested the later date of October 9. Therefore, another 31 of these 86 additional days should be attributed to the defence. The remaining 55 days should be attributed to institutional delay, as the court was not ready to accommodate the additional preliminary inquiry date required for an unnecessarily long period of time.

October 10, 2014 to December 19, 2014

[24] That brings us to October 10, 2014. There was a judicial pre-trial date in the Superior Court available two weeks hence. The applicant was not available, but was available on the next date of December 5. The Crown was not available December 5 but was available December 19. The applicant cleared her calendar to be available December 19. However, if prejudice was starting to build, one questions why the applicant’s counsel was not able to clear her calendar for the October 24 judicial pre-trial date. I find it is appropriate to consider fourteen days of the time between October 10, 2014 and December 19, 2014 as attributable to neutral inherent time requirements of the case, forty-two days until December 5, when the applicant would have been available, as attributable to the defence and fourteen days as attributable to the Crown.

December 19, 2014 to January 9, 2015

[25] On December 19, 2014, the judicial pre-trial was commenced. The applicant had not completed in full the pre-trial form and, in view of the willingness of the Crown to make inquiries of the Public Prosecution Service of Canada in an attempt to potentially resolve this matter, the pre-trial was adjourned for continuation to January 9, 2015. Although the delay was caused in part by the failure of the applicant to have the form completed, in view of the secondary basis for the adjournment, I am satisfied that this twenty days should be considered as part of the inherent time requirements of the case.

January 9, 2015 to July 27, 2015

[26] On January 9, 2015, a date of April 23, 2015 was set for the s. 11(b) application. Ultimately the application did not proceed on that day and was adjourned at the request of the applicant and on consent of the Crown. On January 9, 2015, a date for the trial was also set. Dates were offered in one-week blocks for the five-day trial, commencing July 27, 2015. Five weeks were offered before the date of September 21 was chosen by the applicant. I am satisfied that it is again fair to infer that the applicant would not have been ready for the trial for a minimum of three months. Accordingly, of the time from January 9, 2015 to July 27, 2015, three months or 90 days should be attributable to neutral or inherent delay and 109 days should be attributable to institutional or systemic delay.

July 27, 2015 to September 21, 2015

[27] As noted, there were five weeks offered to the applicant for trial before the applicant was available. As such, this period of time should not be considered part of the institutional or systemic delay, but these 56 days should be attributable to the defence.

Length of Institutional Delay

[28] This re-calculation of the actual period of institutional delay has impact on the s. 11(b) analysis. It means that the institutional or systemic delay in the Ontario Court is 242 days or 8 months. The institutional or systematic delay in the Superior Court is 109 days or 3.6 months. Additional delay of 92 days, or 3 months, is attributable to the Crown. This brings the total period of unjustified delay to 443 days, or just under 15 months. This period of unjustified delay of almost 15 months lies within the “Morin Guidelines”, which provide for a delay of eight to ten months for cases at the Ontario Court level and an additional six to eight months for cases that proceed to the Superior Court; or a total delay of between 14 and 18 months.

[29] The “guidelines” for systemic delay are “neither a limitation period nor a fixed ceiling” and they are not to be applied in a purely mechanical fashion, but more in the nature of a “sliding scale” as there can be deviations of several months in either direction, depending on the presence or absence of actual prejudice”: Richards, supra, at para. 32; Morin, supra, at p.28.

iv. Prejudice

[30] The final factor is prejudice to the interests of the accused that s. 11(b) seeks to protect. This prejudice can be inferred from a very long and unreasonable delay or an accused may lead evidence to show unusual prejudice by reason of special circumstances.

Inferred prejudice

[31] “The inference of prejudice from unduly long delays applies, in particular, to security of the person interests including stress and anxiety while awaiting trial: Richards, supra, at para. 35; Askov, supra, at pp.474 and 482; Morin, supra, at pp.23-24.

[32] The applicant repeatedly sought adjournments during the intake period in the Ontario Court of Justice. Matters could have proceeded much more expeditiously in the Superior Court. This undermines any inference of prejudice to s. 11(b) interests.

Actual prejudice

[33] The applicant relies on strict bail conditions, the stress of compliance with his consent release terms and stigmatization to support that there has been an attack on the security of the person, arguing that the prolonged delay has elevated prejudice. The fact that the applicant was under strict bail conditions argues in favour of situating the case closer to the lower end of the “guidelines”. However, the applicant sought a three-day preliminary hearing in the Ontario Court and a five-day jury trial in the Superior Court so that some reasonably significant judicial resources were required at least in the Ontario Court of Justice. “When the parties seek longer periods of court time, the case should be situated towards the middle and upper ends of the “guidelines”: Richards, supra, at para. 37. I would situate this case in the mid-range of the “guidelines”. As a result, sixteen months is a reasonable period of systemic delay.

[34] The applicant and his spouse filed affidavits in support of the applicant’s claim of prejudice. Other than the strict bail conditions, all of the other concerns raised in the affidavits relate to the fact of being charged, not to delay. For example, the applicant’s loss of income from being dismissed from his real estate company (although at his bail hearing it was represented that the applicant was employed maintaining bank machines) was as a result of his being charged, not the result of delay. In addition, no attempt was made to vary the bail conditions. I find that little weight should be given to the claim of actual prejudice arising from the applicant’s restrictive bail conditions.

[35] Prejudice to fair trial interests has not been raised. Here, where the case will turn on police witnesses whose accounts have been preserved in their notebooks, there is unlikely to be any significant failure of memory such that fair trial interests would be affected.

[36] I find that the evidence of actual prejudice is weak.

v. Balancing the four factors

[37] At this stage, the court is to give consideration to the societal interest in trying the case on the merits, particularly where the charges are serious.

[38] There is minimal evidence of inferred prejudice and actual prejudice. The systemic and Crown delay of almost 15 months is under the 16-month “guideline” that I have allowed. The charges against the accused are serious. There is an obvious societal interest in seeing them tried on their merits.

Conclusion

[39] Accordingly, after considering all of the above factors and considering the entire time period, I find that the applicant has not established on a balance of probabilities that his rights under s. 11(b) of the Charter have been breached and his application to stay the proceedings against him is dismissed.

QUINLAN J.

Released: August 12, 2015

[^1]: A Dawson application is made to a judge at the preliminary hearing to seek leave to cross-examine police witnesses on affidavits to obtain prior judicial authorization.

[^2]: Note that, at this time, the applicant’s employment involved maintaining bank machines.

[^3]: The applicant eventually retained Ms. Osadet on his charges.