ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20150911

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

CORETTA GEORGE
Applicant

Cindy Afonso for the Respondent

Allan J. Lobel and Melody Izadi for the Applicant

HEARD: May 11, 2015

Reasons for Ruling on Application to Stay for Delay

MacDonnell, J.

[1] In the early evening of July 16, 2009, Coretta George arrived at Pearson International Airport on a flight from Kingston, Jamaica. She was bringing with her two pieces of luggage. One of those pieces, a black duffel bag, attracted the attention of the Canadian Border Services Agency. An inspection of the bag revealed a false bottom beneath which was secreted 1.233 kilograms of cocaine. Ms George was arrested and charged with importing cocaine into Canada.

[2] On May 11, 2015 Ms George appeared before this court for what was anticipated to be a seven-day trial. Based on that estimate, the time between the date on which Ms George was charged and the completion of her trial was expected to be a few days in excess of 70 months.

[3] At the outset of the proceedings on May 11, Ms George applied under s. 24(1) of the Canadian Charter of Rights and Freedoms for an order staying the charge against her on the basis that her right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter had been infringed. On May 13, I ruled that Ms George had not established an infringement of s. 11(b) and the application was dismissed. I indicated that I would provide written reasons for that ruling. These are those reasons.

A. The Framework for the Analysis

[4] Section 11(b) of the Charter provides that “any person charged with an offence has the right … to be tried within a reasonable time.” In R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, the majority of the Supreme Court of Canada held that the primary purpose of this guarantee is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speaking for the majority, Justice Sopinka stated:

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 proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions 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.[^1]

[5] Justice Sopinka made it clear that the decision as to whether s. 11(b) has been infringed is not to be made by the application of a mathematical formula “but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” He noted that “it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?”[^2]

[6] That question, Justice Sopinka concluded, is to be answered after a consideration of four factors: the length of the delay, the reasons for the delay, whether any of the delay was waived, and whether there has been prejudice to interests that s. 11(b) is meant to protect.

B. Analysis

(i) The Length of the Delay

[7] The delay between the laying of the charge and the anticipated end of the trial was estimated to be some 70 months. That delay was manifestly sufficient to warrant an inquiry into its causes.

(ii) Waiver

[8] For reasons I will explain below, I conclude that Ms George waived 24¼ months of the overall delay.

(iii) The Reasons for the Delay

[9] Every circumstance that contributed to the delay in bringing a matter to trial has to be taken into account in the determination of whether an accused’s right to be tried within a reasonable time has been infringed. However, the inquiry into the reasons for delay is usually focused on four considerations: limitations on institutional resources, inherent time requirements, actions of the accused, and actions of the Crown.

(a) The Ontario Court of Justice

[10] Ms George was arrested on the evening of July 16, 2009 and an information charging her with importing cocaine was sworn the following day. She made her first appearance in bail court on July 17. Her mother was present at the hearing, ready to act as surety, but Ms George had not yet retained counsel. Because of the nature of the charge, the burden was on Ms George to show cause why her detention pending trial was not justified.[^3] On the advice of duty counsel she adjourned the hearing to Monday, July 20. On July 20, a lawyer from the Mr. Lobel’s office appeared and Ms George was released on a recognizance with one surety (her mother) and a number of conditions.

[11] On August 21, Ms George made her first appearance out of custody, accompanied by Mr. Lobel’s student. Initial disclosure was not yet available. At the suggestion of the student, the matter was adjourned to September 18. On September 18 the Crown provided Mr. Lobel with a disclosure package. Mr. Lobel requested an adjournment to October 16 so that he could review the disclosure. A few days later, on September 23, he made a written request for the notes of some officers whose names were mentioned in the disclosure that had been provided on September 18.

[12] On October 16, Mr. Lobel’s student again appeared for Ms George. The additional disclosure that had been requested on September 23 was not yet available but the parties agreed to move forward to a Crown pre-trial, and the matter was adjourned to November 6 for that purpose. On November 6, counsel appearing for Mr. Lobel indicated that the defence was prepared to set a date for a judicial pre-trial (JPT). The court offered November 13 or November 27. The defence selected the latter date. The JPT did not proceed on November 27 because counsel for Ms George advised the court that Ms George’s retainer had “expired”. The JPT was rescheduled for December 11.

[13] On December 11, the defence confirmed that Ms George’s election was for trial in the Superior Court with a contested preliminary hearing in the Ontario Court of Justice (OCJ). At the conclusion of the JPT, counsel for the Crown and Ms George attended at the trial coordinator’s office and obtained the dates of November 15 and 16, 2010 for a two-day preliminary inquiry. It appears that the earliest dates offered by the trial coordinator were in August 2010. Those dates were acceptable to the defence but not to the Crown because of witness unavailability. The parties then appeared in court intending to set the November dates. The presiding judge wanted an explanation for the unavailability of the Crown’s witnesses in August and he put the matter over for one week, to December 18.

[14] On December 18, Mr. Lobel’s student appeared, advised the court that “I would like to set a preliminary hearing date for Ms George”, and added “I believe it’s for two days, November 15th and 16th”. The presiding judge (not the one who dealt with the matter on December 11) asked why an earlier date was not being set. He sent the parties back to the trial coordinator to try again. When they returned to court, they advised that the dates that initially had been offered in August were no longer available. Four other August dates had been offered: with respect to two of them the Crown was unavailable and with respect to the others the defence was unavailable. Two dates had been offered in September and two more in October. The September dates were acceptable to the defence but not to the Crown, and the October dates were acceptable to the Crown but not to the defence. The presiding justice reluctantly set November 15 and 16, 2010 for a two-day preliminary hearing.

[15] The preliminary inquiry proceeded as scheduled. At its conclusion on November 16 the defence conceded committal for trial and Ms George was directed to appear in the Superior Court on December 3, 2010.

Assessment of the delay in the Ontario Court of Justice

[16] In my opinion, the entire five-month period between the swearing of the information (on July 17, 2009) and the setting of the dates for a preliminary inquiry (on December 18, 2009) was attributable to the intake process and should be characterized as neutral for the purpose of the reasonableness calculus. While it would have been better had the initial disclosure package been available on Ms George’s first appearance out of custody on August 21, no concern about the delay was raised by the defence, and it was the defence who suggested putting the matter over for another four weeks. On the return date of September 18, when disclosure was provided, the defence again requested a four-week adjournment. After counsel had been given a month to review the disclosure, the routine procedures for conducing a Crown pre-trial and a JPT were followed. There is no suggestion that the completion of those procedures was delayed because of a shortage of Crown or judicial resources. There was a short delay in conducting the JPT because Ms George had not properly retained Mr. Lobel and a further short delay when the presiding judge in the OCJ assignment court attempted to find an earlier date for the preliminary inquiry. All of these things were part of the normal process of getting a case to the point at which a preliminary inquiry date could be set.

[17] As of December 18, 2009, the earliest dates that the OCJ could offer for a two-day preliminary inquiry were in mid-August 2010. However, that is not to say that the entirety of the eight-month period between those dates should be attributed to a lack of judicial resources. At the time when the preliminary inquiry dates were set, the defence did not indicate when counsel would have first been available to proceed but it is only reasonable to infer that some time would be required to prepare. Institutional delay is measured from the date on which the parties are ready to proceed, not from the date on which they are ready to set a date to proceed: R. v. Lahiry. 2011 ONSC 6780, at paragraphs 25‑37. Bearing in mind that the defence was seeking a full preliminary inquiry at which all elements of the offence were to be in issue, where committal was to be contested, and where the defence sought to hear from seven Crown witnesses,[^4] it is reasonable to assume that three months would have been required for preparation purposes. That period should be characterized as part of the inherent time requirements of the case. It is neutral for the purposes of the s. 11(b) calculus: R. v. Khan, 2011 ONCA 173, at paragraph 34.

[18] The trial coordinator had offered the parties a number of dates between mid-August and mid-November. About half of those dates were unacceptable to the Crown and about half were unacceptable to the defence. In the circumstances, I would attribute half of this three-month period to each party.

[19] Although both of the judges who dealt with this case in the OCJ assignment court expressed concern about an eleven-month delay between the set-date and the preliminary inquiry dates, nothing was said by the defence that suggested that it shared that concern. Rather, it seems that both the Crown and the defence were content with the proposed pace of the proceedings.

(b) The Superior Court of Justice

November 16, 2010 to February 1, 2011

[20] Ms George made her first appearance in the Superior Court on December 3, 2010. On consent the matter was adjourned to February 1, 2011 for a JPT. The time required to schedule and conduct the JPT was reasonable and should be attributed to the intake requirements of Superior Court trials. Accordingly, the 2½-month delay between November 16, 2010 and February 1, 2011 is neutral in the s. 11(b) calculus.

February 1, 2011 to September 24, 2012

[21] On February 1, 2011 the JPT was conducted. Upon its completion the parties appeared before Justice Durno and agreed to a trial date of November 28, 2011. The following exchange occurred:

The Court: And I take it that…both parties are content with that trial date? We explored some earlier dates but simply professional schedules didn’t permit us to list it any earlier, is that correct?

Counsel for Ms George: That is correct, yeah.

Counsel for the Crown: Yes, thank you, Your Honour.

[22] It is clear from that exchange that Justice Durno had offered dates for trial that were earlier than November 28, 2011. That is, November 28 was not the earliest date upon which the court could accommodate the trial. It is also clear that notwithstanding the availability of earlier dates both the Crown and the defence were content with the date of November 28. In those circumstances, the agreement by the defence to the proposed date constituted a waiver of the delay leading up to it. In R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120, Justice Sopinka stated:

Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant's s. 11(b) rights might be inferred based on the foregoing circumstances.[^5]

[23] In R. v. Morin, Justice Sopinka confirmed that position. He also expanded on what “other factors” might negate an inference of waiver:

As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to a mere acquiescence in the inevitable.[^6]

[24] Plainly, the agreement to a trial date of November 28, 2011 was not “a mere acquiescence in the inevitable” – earlier dates were available. On the authority of both Smith and Morin, therefore, the agreement of the defence to the November 28 date was a waiver.

[25] As it turned out, the November 28, 2011 trial date was not reached. Subsequent to the setting of that date, an essential Crown witness became pregnant and was expected to be giving birth on or about November 28. On October 28, 2011 the Crown applied before Justice Hill for an adjournment. Counsel for Ms George advised the court:

We are not consenting but we are certainly not objecting. We understand that the Crown feels that this is a witness they must have. Obviously, this witness is pregnant and is due right around the time when this trial is to take place. That certainly creates some issues. It’s unfortunate that this motion was not brought earlier, then everyone could have made…, including the court, better use of the time, but I do have dates for Mr. Lobel here and I am prepared should your Honour grant the Crown’s motion to set new dates this morning. [emphasis added]

[26] Justice Hill granted the application for an adjournment. He suggested a new trial date of February 21, 2012. The defence rejected that date because Mr. Lobel was going to be on vacation for all of February and March. The court offered dates in early April, but the earliest date that Mr. Lobel was available was April 23, 2012. After April 23 Mr. Lobel was available for the next month or so. The court offered May 14th but Mr. Lobel was not available that week. Justice Hill suggested that counsel return to the next assignment court, on November 18, and that they consult with each other and the trial coordinator in the interval. On November 18, the defence indicated to Justice Durno that it had a number of dates in June on which it would be able to proceed. I infer that no court space was available in June. Justice Durno offered July 30 but the Crown was not available. Justice Durno then offered September 24, 2012, which both parties accepted.

Assessment of this portion of the delay

[27] On February 1, 2011, neither defence counsel nor Crown counsel indicated on the record when they would be prepared to commence the trial. It would be unreasonable to expect that either side could have proceeded immediately – witnesses had to be subpoenaed, for example, and the defence motions to exclude evidence on the basis of alleged infringements of the Charter had to be prepared and filed in accordance with the rules of court. In the absence of evidence to the contrary, I would conclude that about three months would have been required for trial preparation. That time period, which ran between February 1 and May 1, 2011, was part of the inherent time requirements of the case and is neutral for s. 11(b) purposes: Khan, supra; Lahiry, supra.

[28] For the reasons I have indicated, the agreement of the defence to the November 28, 2011 trial date constituted a waiver. I would characterize that waiver as becoming operative as of May 1, the first date on which the parties could have commenced the trial. Because of intervening events, however, I would not characterize it as remaining operative right up to November 28. The Crown’s application for an adjournment of the trial because of the pregnancy of an essential witness was not brought until October 28, 2011. At that point, the witness would have been eight months pregnant. The difficulty that her pregnancy was going to present to the scheduling of the trial should have been apparent to the Crown several months earlier, and at least by August 1. Had the application been brought on August 1, a delay of three months before beginning a search for a new trial date could have been avoided. Therefore, I would limit the scope of the waiver to the three months between May 1 and August 1, 2011. I would allocate responsibility for the three months of delay between August 1 and October 28, 2011 to the Crown.

[29] In R. v. A.J.W., 2009 ONCA 661, Justice Rosenberg held that “delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case.”[^7] In that respect, he adopted the view of Justice Hill in R. v. Hoffner, 2005 32924 (ON SC), [2005] O.J. 3862 (Ont. Sup. Ct.) that reasonable delay flowing from the need to schedule a new trial date in those circumstances will be considered neutral for s. 11(b) purposes.[^8] The witness’s pregnancy was not an illness, of course, but insofar as the ability to proceed with the trial was concerned it was its functional equivalent and a reasonable time to reschedule after October 28 should be considered to be neutral. The court was able to offer a new trial date in February 2012 but Mr. Lobel was not available in either February or March. His first available date was April 23. Thus, I would characterize the time period between October 28, 2011 and April 23, 2012 as neutral.

[30] The inability to set a trial date in the interval between April 23 and September 24, 2012 was due to the unavailability of either the Crown or the defence for the dates that the court was able to offer. In the circumstances, I would apportion 2.5 months of that five-month period to each party.

September 24, 2012 to June 9, 2014

[31] On September 2, 2012, Ms George had an emergency Caesarian section that left her unable to meet with her counsel to prepare for the trial that was scheduled to begin on September 24. On September 14, she brought an application for an adjournment, which was granted on consent. The matter was put over to September 24, before Justice Durno, to set a new date for trial. On September 24, Justice Durno said to the parties: “So I assume there are no 11b issues.” Counsel for Ms George did not suggest that this assumption was incorrect. Justice Durno then suggested a trial date of June 10, 2013. That date was not available to the defence. There was the usual back and forth about dates that the court or the Crown or the defence might have but which one or more or the others could not accommodate. In the course of that colloquy, Justice Durno queried: “Well, are either counsel taking a position I should look for something earlier and just try and fit it in?” Counsel for Ms George did not respond to that question. Counsel for the Crown stated, “something earlier would be fine”. Justice Durno then suggested dates in February and March 2013, but the defence was not available. The defence suggested one date in December 2012, but court space was not available. The first date with which everyone was content was September 9, 2013. That date was set.

[32] On August 31, 2013, however, the Crown again applied for an adjournment of the trial, this time because the father of an essential witness was terminally ill and was expected to die at about the time when the trial was to be proceeding. The defence did not oppose the adjournment but also did not consent and did not waive the delay for the purposes of s. 11(b). The defence notified the Crown that they were seeking the earliest date possible for trial. On the hearing of the adjournment application, however, counsel for Ms George advised Justice Durno that the earliest date on which the defence would be available was March 24th, 2014. The court offered April 1, which was acceptable to the defence but created witness availability problems for the Crown. The court offered May 20, but the defence was not available. The court then offered June 9, which was acceptable to all parties.

Assessment of this portion of the delay

[33] In my opinion, the position taken by the defence in the proceedings before Justice Durno on September 24, 2012 constituted a waiver of the delay between the second and third trial dates, which was anticipated to be 11.5 months. In the course of the proceedings, Justice Durno twice raised the issue of delay, each time inviting counsel to indicate if delay was going to be an issue for the purposes of s. 11(b). The silence of the defence in the face of those invitations made further efforts to find an earlier date unnecessary. In the circumstances, the agreement to a trial date almost a year away amounted to a waiver of the delay to that trial date.

[34] This waiver was operative from September 24, 2012 to August 31, 2013, when the Crown applied for another adjournment due to the grave illness of the father of an essential witness. That unfortunate turn of events was the kind of contingency that Justice Hill characterized in Hoffner, supra, as “an inherent part of the litigation process”. A reasonable amount of time to obtain a further trial date should be considered to be neutral. As Mr. Lobel was, in any event, not available to conduct the trial until after March 24, 2014, the entirety of the delay between August 31, 2013 and March 24, 2014 should be classified as neutral.

[35] The two months of delay between March 24 and May 20, 2014 was due to the unavailability of the Crown; the three weeks between May 20 and June 9 was due to the unavailability of the defence.

June 9, 2014 to May 11, 2015

[36] The trial did not proceed as scheduled on June 9, 2014, for two reasons. First, Mr. Lobel was not prepared to proceed because he had lost contact with Ms George[^9] and he was “not…ready to proceed at this time…” Second, it had been discovered that one of the Crown witnesses was the daughter of a recent appointment to the Superior Court in Brampton and that the appearance of impartiality would require that an out-of-jurisdiction judge be assigned to the trial. Mr. Lobel suggested that the matter go over to July before setting a new date. The matter was adjourned to July 14.

[37] On July 14, counsel acting as agent for Mr. Lobel appeared to set a fifth trial date. Justice Durno stated to counsel: “If there are no 11b issues, it’s April (2015)”. Counsel for Ms George responded: “I don’t have any instructions with respect to 11b”. Justice Durno asked counsel if she wanted to set the date of April 13, 2015 on the understanding that if there were any difficulty with that date the matter could be revisited. Counsel indicated that Mr. Lobel would not be available on April 13 but that he would be on May 4. May 4 was the date of a judicial conference. In the result, May 11 was selected. Before leaving the matter on July 14, Justice Durno reiterated that if there were issues with the trial date, the problem should be raised soon. He said to defence counsel: “…It’s reasonable to say that you’ll notify the trial coordinator by August 8th, which is an assignment court date, if there’s any issues with that date… [and] it can be spoken to and we can see if… with respect to other dates at that time.” Counsel did not notify the trial coordinator of any concerns with the proposed trial date, either before or after August 8th.

[38] On April 23, 2015, 2½ weeks prior to the commencement of the trial, the defence filed an application to stay proceedings on the basis of delay.

Assessment of this portion of the delay

[39] There is no evidence with respect to whether the desirability of an out-of-jurisdiction judge was raised by Justice Durno or one of the parties but, in any event, it “is an example of 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 30221 (ON CA), [2004] O.J. No. 3812 (C.A.).[^10] The time required to reschedule the matter would ordinarily be considered neutral, even if that were the only reason why the trial did not proceed on June 9, 2014. But the defence was also seeking an adjournment because counsel had been unable to prepare his client for trial. A fortiori, the delay to July 14 should be characterized as neutral.

[40] With respect to what occurred on July 14, Justice Durno not only raised the issue of waiver, he provided the defence with three weeks to consider its position. He made it clear that, if the defence had s. 11(b) concerns, efforts would be made to obtain an earlier trial date. In the circumstances, the conduct of the defence was a waiver of the ten months of delay between July 14, 2014 and May 11, 2015.

(c) Summary of the Reasons for Delay

Inherent Time Requirements

(i) July 17, 2009 to December 18, 2009 – intake requirements in the Ontario Court of Justice – 5 months.

(ii) December 18, 2009 to March 18, 2010 – preparation requirements – 3 months.

(iii) November 16, 2010 to February 1, 2011 – intake requirements in the Superior Court of Justice – 2.5 months.

(iv) February 1, 2011 to May 1, 2011 – preparation requirements – 3 months.

(v) October 28, 2011 to April 23, 2012 – rescheduling – 6 months

(vi) August 31, 2012 to March 24, 2014 – rescheduling – 7 months

(vii) June 9, 2014 to July 14, 2014 – 1.25 months

Total: 27¾ months

Institutional Delay Not Waived

(i) March 18, 2010 to August 19, 2010 – 5 months

Total: 5 months

Crown Delay

(i) August 19, 2010 to November 16, 2010 – 1.5 months attributed to Crown

(ii) August 1, 2011 to October 28, 2011 – 3 months

(iii) April 23, 2012 to September 24, 2012 – 2.5 months attributed to Crown

(iv) March 24, 2014 to May 20, 2014 – 2 months

Total: 9 months

Defence Delay

(i) August 19, 2010 to November 16, 2010 – 1.5 months attributed to defence

(ii) April 23, 2012 to September 24, 2012 – 2.5 months attributed to defence

(iii) May 20, 2014 to June 9, 2014 - .75 months attributed to defence

Total: 4¾ months

Waived Delay

(i) May 1, 2011 to August 1, 2011 – 3 months

(ii) September 24, 2012 to August 31, 2013 – 11.25 months

(iii) July 14, 2014 to May 11, 2015 – 10 months

Total: 24¼ months

[41] In Morin, supra, Justice Sopinka suggested an administrative guideline of 14 to 18 months of institutional delay for matters tried in the Superior Court. The unwaived institutional delay in this case – 5 months – was well within the guideline. Even if delay attributable to actions of the Crown should be added to the institutional delay for the purposes of the administrative guideline, the total of 14 months remains well within its bounds.

(iv) Prejudice

[42] As I noted earlier, the primary purpose of s. 11(b) is the protection of the rights of the accused to a fair trial, liberty, and security of the person.

(a) The impact of the delay on Ms George’s fair trial interest

[43] There was no suggestion of specific prejudice to Ms George’s fair trial interest in her factum, affidavit or testimony. It is reasonable to infer that the passage of time may cause the memories of any witness to suffer some deterioration, but in the absence of an assertion of a concern in this respect I am not prepared to find that the delay had any impact on the fairness of Ms George’s trial.[^11]

(b) The impact of the delay on Ms George’s liberty interest

[44] Ms George was arrested on the evening of Thursday, July 16, 2009 and she made her first appearance in bail court the following day. On the advice of duty counsel she put the bail hearing over to July 20, at which time the Crown consented to her release on a $25,000 recognizance with one surety – her mother. Among other things, the terms of the recognizance required Ms George to remain in Ontario, to report once a month to the RCMP in Etobicoke, to reside with her mother, to stay away from Pearson Airport, and to not be within 500 metres of any border crossing. Ms George asserted that being required to abide by those terms for some 70 months caused significant prejudice to her liberty interest. I reject that assertion.

[45] Apart from the requirement that she reside with her mother and that she remain in Ontario, the terms of the bail order did not restrict Ms George’s liberty to do what she wanted when she wanted. The requirement that she live with her mother was not a significant restriction on her liberty – Ms George and her children were already living there, it was not asserted that she had wanted to move out and, in any event, the evidence indicates that she was not in a financial position to have done so.

[46] Ms George’s central complaint with the terms of the bail order was that they prevented her from travelling outside of Canada. An uncle with whom she had been very close died in New York in March 2010. She said that she was unable to visit him before his death and that she could not attend his funeral. She also said “I have been unable to take my children on any family vacations outside of the province”. Further, she said, she was unable to travel to Aruba in the fall of 2014 to attend the wedding of her best friend.

[47] The death of Ms George’s uncle occurred eight months after she was released on bail, at a time when the delay in bringing this matter to trial was clearly not unreasonable. I do not accept that the delay to that point exacerbated the prejudice to her liberty interest flowing from the bail order. Further, Ms George’s claim that the bail order prevented her from taking her children out of the country for vacations is difficult to square with her concurrent assertion that she was in extremely difficult financial circumstances and could not afford to register her children for sports programs in Brampton. Further, Ms George’s claims of prejudice arising from the terms of her bail are not reasonably reconcilable with her failure to make any effort to have those terms varied. She testified that she had not made such an effort because she did not realize that a bail order could be varied. I do not believe that explanation. From the moment she was released on bail Ms George was represented by experienced and able counsel. Had she been chafing under the requirement that she remain in Ontario, the option of attempting to vary that requirement would undoubtedly have been explored. The far more likely explanation for the absence of such an attempt is that there was no real concern in that regard.

[48] More significantly, however, the position that Ms George took to the scheduling and rescheduling of trial dates in the Superior Court is inconsistent with her claim that she was experiencing serious difficulty as a consequence of delay. Not only was there never a suggestion that delay was an issue whenever Ms George was before a judge for the purpose of scheduling, on two occasions – in September 2012 and July 2014 – Justice Durno specifically raised the question and both times Ms George, implicitly if not explicitly, indicated that there were no concerns.

[49] In the circumstances, I reject the suggestion that the delay in bringing this case to trial caused any real prejudice to Ms George’s liberty interest.

(c) The impact of the delay on Ms George’s security of the person

[50] The core of Ms George’s assertion of prejudice was that the delay adversely affected her security of the person. She alleged that as a result of being charged she became unable to find employment, the fathers of her children cut back on child support, her family and friends abandoned her, she developed a drinking problem, and she suffered stress and anxiety.

[51] For the most part, those difficulties, if genuine, flowed from the fact of being charged, rather than from delay. Having said that, I accept that to the extent that Ms George was required to bear those stresses for an extended period of time, they are capable of constituting prejudice for the purposes of the s. 11(b) analysis. In my view, however, Ms George’s claims are largely rooted in what she perceives to be necessary to support her desire for a stay of proceedings rather than in the truth.

[52] She asserted that based on years of experience she was qualified to be employed in clerical, desk or city jobs. However, she said, when she applied for those jobs employers would often ask if she had been charged with a criminal offence, and when she revealed the outstanding charge the prospect of a job would evaporate. She cited as an example her experience working in a Rogers Communications call center. She said that she was hired, but after a few months Rogers found out about the charge and she was summarily dismissed.

[53] However, Ms George did not have a full-time job at the time she was charged and had not had one for three years. That is, her difficulty in finding full-time employment significantly pre-dated her arrest. Further, apart from the fact that she lost her job at Rogers, she did not offer any basis for a belief that her difficulty in finding employment was related to the outstanding charge. In addition, she acknowledged that she had not applied for jobs where she knew employers would not inquire as to outstanding charges. I reject her assertion that her difficulty in finding employment was related to the charge before the court.

[54] I do not accept Ms George’s assertion that the financial support that she had been receiving from the fathers of her children has been substantially reduced as a consequence of the charge against her. Each of the four children has a different father. She said that the four fathers used to assist her financially but that their support had become “significantly less since my arrest as this charge has affected their individual relationships with me”. She described the support she was currently getting from the fathers as “minimal”. She claimed that “now it’s just me”.

[55] Ms George’s evidence with respect to this issue was confusing. While she initially said that “the fathers” had cut back on the support they were providing, she later acknowledged that the father of her fourth child had never done that. One of the fathers had stopped providing support at one point but she remedied that by obtaining a Family Court order. With respect to one of the other fathers, what changed was that he wanted to purchase what the child required himself rather than giving her the money directly. While there may have been issues in relation to compliance by one or more of the fathers, her claim that those issues arose because of the charge lacked the ring of truth.

[56] Ms George further asserted that “I have been feeling quite isolated and excluded socially by my friends and family due to the stigma of the charges I face…over six years of my life”. She testified that “I have gone from having everyone around me, supporting me, to no answers, no phone calls, nothing. I am by myself with everything I do these days. I do have a few friends that are still around but they are mostly a phone call.” She said “My world has changed.” Her relationship with her best friend has deteriorated, which has been “devastating”. She said that her brother does not talk to her at all now. Her relationship with her sister has also changed – they used to do everything together but now they don’t speak. She and her father used to be “pretty close”, but now he is very short with her when they speak and she has not actually seen him for six years.

[57] In her affidavit Ms George stated that the stress of waiting for trial has caused her to develop a drinking habit. She stated that she used to engage only in social drinking, perhaps a glass of wine socially, but that she now drinks a half bottle of wine every night in order to be able to sleep. In her testimony, however, she conceded that she was drinking less than that. She testified that she drinks when court appearances are looming.

[58] Finally, she stated, “I have mentally and emotionally prepared myself for trial four prior trial dates over the years, which is something I would hope no other Canadian should have to endure, regardless of what charges they may face.” She testified that “it is the most nerve-wracking, devastating feeling… it drives everything out of me… it is really hard… it is the same anxiety every time, same fear, same nerves, it doesn’t change.”

[59] With respect to the impact of the delay on those matters – Ms George’s relationship with her friends and family, her use of alcohol, and her general level of anxiety – there is only Ms George’s testimony. There is no requirement that there be any other evidence, of course. However, in assessing the credibility of her evidence that she was suffering great prejudice for almost all of the 70 months that preceded the trial, the position that she took with respect to scheduling is a relevant consideration. In my view, that position is fundamentally inconsistent with the present claims of prejudice, which can only be described as late-breaking. While I accept that waiting for trial has caused her a measure of anxiety, and accordingly that the wait has had an impact on her security of the person, I do not accept that the impact was significant.

(d) inferred prejudice

[60] In Morin, Justice Sopinka held that “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.”[^12] In R. v. Askov, Justice Cory observed that with respect to very long delays, a presumption of prejudice will be “virtually irrebuttable.” However, Justice Cory was clear that it is open to the Crown, however difficult it may be, to demonstrate that delay, even a lengthy delay, has not prejudiced the accused.[^13]

[61] In R. v. Ralph, 2014 ONCA 3, Justice Rosenberg stated that “when an accused has had to wait almost three years for trial…it is proper to infer significant prejudice…”[^14] See also R. v. Williamson, 2014 ONCA 598, at paragraphs 54‑57. In R. v. Godin, 2009 SCC 26, where the overall delay was about 30 months, Justice Cromwell held that it was reasonable to infer that the delay “gave rise to some prejudice”.[^15] The overall delay in this case is twice that of Ralph, and more than twice that of Godin.

Conclusions re prejudice

[62] I accept that the lengthy delay in this case gave rise to some stress and anxiety on the part of Ms George and thus that it had some impact on her security of the person. For the reasons I have given, however, I reject most of Ms George’s assertions of actual prejudice. I also accept that a degree of prejudice must be inferred from the fact of the seventy-month overall delay. However, in light of the stance assumed by Ms George in relation to the scheduling of the trial dates, and in particular her implicit representation to Justice Durno at the time the ultimate trial date was set that delay was not an issue for the defence, and in light of as her waiver of substantial portions of the delay, I would characterize the inferred prejudice as modest.

(v) Balancing

[63] The guarantee provided by s. 11(b) of the Charter is the right to be tried “within a reasonable time.” In Morin, the Supreme Court directed judges to assess whether a delay in bringing an accused to trial was reasonable “by… balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.”[^16]

[64] A finding of prejudice to one or more of the interests protected by s. 11(b) will be an important consideration in the balancing process. However, a finding of prejudice does not in itself dictate the further finding that the constitutional guarantee has been infringed.[^17] That is, proof of prejudice flowing from delay is not necessarily proof that the delay was unreasonable: R. v. Lo, 2014 ONCA 23, at paragraph 3. The greater the prejudice, the more likely a finding that the delay was unreasonable, but the latter finding can only be made after the prejudice is assessed together with the other factors that Morin requires judges to consider. If the delay was entirely justified, for example, or if the amount of unjustified delay was not substantial, or if substantial portions of the delay were waived, the balance may be tipped against a finding that the delay was unreasonable, even if some degree of prejudice has been shown.

[65] As I have said, I accept that the delay caused Ms George a measure of anxiety and concern and thus that it had an adverse impact on her security of the person. I also accept that a degree of prejudice must be inferred from the fact of the seventy-month overall delay. In relative terms, however, I would not characterize the extent to which her Charter-protected interests have been prejudiced as significant.

[66] The combination of unwaived institutional and Crown delay – 14 months – is well within the guidelines set forth by the Supreme Court of Canada in Morin. The fact that the delay in those respects is within the guidelines does not preclude a finding that the delay was unreasonable[^18] but it is relevant to whether such a finding should be made.

[67] The seventy months that it took this case to finally reach trial is startling. However, after reviewing of all of the circumstances, and after attempting to balance the actual and inferred prejudice to Ms George’s interests against the length of the overall delay and the factors that led to that delay, I am not persuaded Ms George was not been brought to trial within a reasonable time.

III. Disposition

[68] For the foregoing reasons, the application for a stay of proceedings was dismissed.

MacDonnell, J.

Released: September 11, 2015

[^1]: at paragraph 28
[^2]: at paragraph 31
[^3]: S. 515(6)(d) of the Criminal Code.
[^4]: Statement of Issues and Witnesses, Applicant’s Book of Materials, Tab 20
[^5]: at paragraph 38
[^6]: at paragraph 38
[^7]: at paragraph 35
[^8]: at paragraph 41
[^9]: See the transcript of July 14, 2014
[^10]: at paragraph 3
[^11]: As hearings with respect to whether s. 11(b) has been infringed are almost always conducted prior to proceeding with the trial, an assessment of whether trial fairness has been compromised by delay will often involve elements of speculation. Nothing that occurred during the trial, however, led the defence to renew the application for a stay of proceedings based on delay.
[^12]: at paragraph 61
[^13]: at page 1230
[^14]: at paragraph 16
[^15]: at paragraph 34
[^16]: at paragraph 31
[^17]: see, e.g., R. v. Nouri. 2015 ONSC 115, at paragraph 40
[^18]: Morin, supra, at paragraph 53