CITATION: R. v. Wabason, 2015 ONSC 6132

COURT FILE NO.: CR-11-0142

DATE: 2015-10-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen,

Dayna Arron, Peter Keen, and Andrew T.G. Sadler, for the Crown

Respondent

• and -

Shaldon Wabason,

Jessica Orkin and Delmar Doucette, for the Applicant/Defendant

Applicant/Defendant

HEARD: June 2, 2015,

at Thunder Bay, Ontario

Platana J.

Reasons For Judgment On Section 11(b) Charter Application

[1] On September 4, 2015, I released my decision dismissing this application, with reasons to follow. These are my reasons.

[2] The Applicant seeks an order pursuant to ss. 11(1)(b) and 24(1) of the Charter staying the prosecution of his charges under ss. 235(1) and 348(1)(b) of the Criminal Code. He was arrested and charged on March 20, 2011. His trial commenced September 14, 2015.

Overview Of Proceedings

[3] Following a preliminary hearing, Mr. Wabason was committed to stand trial on February 14, 2012. He made his initial appearance in Superior Court on February 27, 2012. Following changes in counsel for Mr. Wabason, and proceedings dealt with for co-accused, Mr. Wabason was scheduled to proceed to trial in April 2014. Pre-trial applications were heard in January 2014, except for a “Kokopenace” application challenging the 2014 jury roll. That application was heard in March, resulting in a decision by McCartney J. on April 17, 2014, staying the proceeding for one year. At that point, Mr. Wabason had been in custody three years, 28 days.

[4] Pre-trial applications were dealt with in June 2015.

[5] Mr. Wabason`s trial was scheduled to begin in September. As at the date this application was argued (June 2, 2015) the total period of delay was 53 months, 25 days. Counsel acknowledges that Mr. Wabason waived delay between June 2013 and December 2013, when Mr. Wabason was seeking new counsel, leaving 48 months, 10 days to be considered, from the date of the charge to the anticipated date of trial.

[6] Counsel agree that the governing principles are set out in R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199 (1990), 59 C.C.C. (3d), and R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, (1992), 71 C.C.C. (3d) 1, and that the factors to be considered are the length of delay, any waiver of the delay, the reasons for the delay, and the prejudice to the interests of the defendant, including liberty, security of the person, and fair trial interests that have been occasioned by the delay.

[7] In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at para. 5, the Court established a general guideline of 14 – 18 months.

[8] Crown counsel has acknowledged that the length of the delay, taking into account any waiver, is sufficient to require consideration of the remaining factors of the reasons for such delay, and any prejudice caused by the delay.

REVIEW OF THE PROCEEDINGS IN ONTARIO COURT

[9] In applications such as this courts must carefully review the detailed history of the case. In order to do so, I set out the facts relied on by the Applicant in his factum. I have indicated where the Crown takes issues with the facts as stated by the Applicant, and the additional facts relied upon by the Crown in its factum. I have included the facts dealing with Phase I (the period to December 2013) and II (the period from January 2014 to the date of the trial) as they are relevant in terms of overall delay and the issue of reasons for delay, and any prejudice to the Applicant.

[10] March 20, 2011, the Applicant is arrested and charged with first degree murder.

[11] On April 15, 2011, the charge of first degree murder was withdrawn and an Information that alleged (1) second degree murder and (2) break and enter was placed before the Ontario Court of Justice. Three other persons, Nicholas Webber, Cody Thompson and Christopher Hawk, were also named as defendants on those two charges. David Young appeared as counsel for Wabason. Crown counsel informed the court that she expected the vast majority of disclosure to be available by the next appearance.

[12] On May 16, 2011, disclosure was made, except for some forensic reports. All defence counsel asked for a month to review the disclosure.

[13] On June 23, 2011, the matter was adjourned at the request of the Crown so that the remaining disclosure items could be obtained and delivered.

[14] On July 7, 2011, the matter was again adjourned so that the remaining disclosure items could be obtained and delivered. Counsel for Webber, Thompson and Hawk declined to set a preliminary inquiry date without the remaining disclosure. The matter was adjourned for the provision of forensic reports and the post-mortem report. Counsel for Cody Thompson requested a remand to August 31 and indicated that forensic disclosure was outstanding. Mr. Young, counsel for Shaldon Wabason, agreed with this request, responding “Fine with me on behalf of Mr. Wabason and somebody’s gonna say it eventually so I might as well. Set a date for a preliminary hearing on that date.” Defence counsel all agreed to the remand.

[15] On August 31, 2011, Crown counsel withdrew all the charges against Thompson, who had died in custody. Mr. Young as counsel for Wabason was absent on that day, due to surgery that he had undergone. Disclosure had been completed. Counsel for Webber and Hawk therefore suggested that there should be a focus hearing to narrow the issues prior to setting a date for the preliminary inquiry. Crown counsel agreed with the suggestion that there be a focus hearing. An issues pre-trial was scheduled for 9 September 2011, despite that date being noted as a very busy date. The Court accommodated counsel and fit the matter in by scheduling an early start.

[16] On September 9, 2011, an in-chambers focus hearing took place. Mr. Young was absent due to his ongoing medical condition. By the time that court convened, it had been determined that the week of January 9, 2012, was available to all other counsel. In court, it was stated that this would be the target preliminary inquiry date, subject to Mr. Young’s availability. Wabason explained, however, that he intended to discharge Mr. Young, and was in the process of finding new counsel. The court blocked off the week of January 9 as the target date for the preliminary inquiry.

[17] On October 3, 2011, Mr. Young was again absent due to his ongoing medical condition. Wabason informed the court that he was still in the process of finding new counsel, but was having difficulty doing so from jail. Counsel for Hawk stated that he had been in communication with local counsel who was willing to represent Wabason and was available for the target date, but that Wabason might retain out-of-town counsel who would not be available at that time. The court responded that Wabason was entitled to counsel of choice. Crown counsel stated that she thought that Legal Aid Ontario (LAO) had issued a new legal aid certificate in that regard, but Wabason did not think so. Crown counsel stated that she would make inquiries. Mr. Young was not removed from the record. The target date was maintained.

[18] On October 12, 2011, Mr. Young was again absent due to his ongoing medical condition. Wabason informed the court that he had been in touch with Devin Bains as potential new counsel. Wabason told the court that he had told Mr. Bains of the target date but could not speak to his availability. He said that he would continue to try to finish the arrangements to retain Mr. Bains. Mr. Young was not removed from the record. The target date was maintained.

[19] On October 19, 2011, Mr. Young was again absent. Wabason informed the court that he wanted to be represented by Mr. Bains but had not yet been able to retain him. A LAO official explained that a new legal aid certificate had been issued but that LAO had refused to authorize Toronto-Thunder Bay travel expenses for Mr. Bains, and that Wabason had appealed against this refusal. Crown counsel suggested that the Crown might take the position that Wabason would have to proceed without counsel if he was not willing to retain local counsel. She also stated that she would be in touch with Mr. Bains in regard to his availability. Mr. Young was not removed from the record. The target date was maintained.

[20] On October 31, 2011, Mr. Young was yet again absent due to his ongoing medical condition. Crown counsel informed the court that she had been in contact with Mr. Bains, who had informed her that he was not yet retained, that he was not available on the target date, and that he would not be able to provide later dates until he was retained. A LAO official explained that three days earlier, the local Area Committee of LAO had dismissed Wabason’s first appeal against the refusal to authorize travel expenses for Mr. Bains and that Wabason had available to him a further appeal, which was to LAO’s provincial office. Civil Crown counsel submitted that, if the further appeal within LAO was denied, Wabason could bring a Fisher application in the Superior Court, but that he did not have an absolute right to counsel of his choice. She also submitted, in the alternative, that the court could appoint amicus. In that regard, she noted that local counsel George Joseph was present in court and was willing to take such an appointment. Mr. Joseph stated that the local LAO office had contacted him to see if he was willing to act as amicus, and he confirmed that he was willing to do so. Wabason stated that he still wanted Mr. Bains as counsel, did not want Mr. Joseph to represent him, had not known that LAO had contacted Mr. Joseph to see if he was available to act as amicus, and wanted to file his further appeal against LAO’s refusal to authorize Mr. Bains’s travel expenses. Mr. Young was not removed from the record. The target date was maintained.

[21] On November 14, 2011, Mr. Young was yet again absent. An official from LAO informed the court that three days earlier, the provincial office of LAO had dismissed Wabason’s second appeal against the refusal to authorize Mr. Bains’s travel expenses. Wabason confirmed that he did not want Mr. Young to be his counsel. Mr. Young was not removed from the record. The target date was maintained.

[22] On November 18, 2011, Mr. Young was present for the first time since July 7 and was removed from the record. Crown counsel informed the court that she had spoken to Mr. Bains, and that he had informed her that he had received a legal aid certificate and was still trying to resolve the travel-expenses issue, and that if it was resolved he would be seeking an adjournment of the preliminary inquiry from January to March or April because he was not available on the target date. Crown counsel submitted that the decision whether to appoint amicus should be adjourned for a week. The court appointed Mr. Joseph as amicus. The target date was maintained.

[23] On November 25, 2011, Crown counsel informed the court that she had received a letter from Mr. Bains, who stated that he had not been able to resolve the travel-expenses issues. He further stated that Wabason should be able to exercise his right to counsel of choice, and suggested that the court should name him as counsel “in some capacity.” Wabason stated his request that Mr. Bains be appointed as amicus, which was denied. The target date was maintained.

[24] During this appearance and prior to Mr. Wabason’s explicit request that Mr. Bains be appointed as amicus, the Court made repeated references to Mr. Wabason’s previous request that Mr. Bains be appointed as amicus. The Court noted that Mr. Wabason clearly wanted Mr. Bains as counsel. The Court also noted that amicus is counsel for the court, not counsel for the accused, and that references to Mr. Bains being wanted as both were inconsistent and confusing.

[25] During January 9-13, 2012, the evidence on the preliminary inquiry was heard as scheduled. Prior to the commencement of the preliminary inquiry, Wabason adopted the Statement of Issues drafted by counsel for Webber and Hawk. On January 20, 2012, submissions were heard and the preliminary inquiry was adjourned for the delivery of the presiding judge’s reserved judgment. On February 13, 2012, the preliminary inquiry was adjourned one day further for the delivery of the reserved judgment. On February 14, 2012, the preliminary inquiry judge ordered Wabason, Webber and Hawk to stand trial as charged for (1) second degree murder and (2) break and enter.

[26] The total time frame during the proceedings in the Ontario Court of Justice is 10 months, 25 days. As noted earlier, the Applicant does not allege any unreasonable delay in this phase.

II. THE PROCEEDINGS IN THE SUPERIOR COURT OF JUSTICE:

PHASE I—EVENTS TO 2014

[27] A new charge of robbery against Hawk was put before this Court in a separate Indictment. On April 30, 2012, Hawk pled guilty to that charge, and the murder and break-and-enter charges against him were withdrawn. On August 24, 2012, Regional Senior Judge Pierce sentenced Hawk to two years less a day in prison, minus 525 days of pre-sentence time served on a 1:1 basis, and to three years’ probation.

[28] On February 27, 2012, the Crown filed an Indictment in the Superior Court that alleged that Wabason and Webber committed (1) second degree murder and (2) break-and-enter. The same day, Wabason and Webber made their first appearance in the Superior Court. Wabason was not yet represented. He was still trying to retain Mr. Bains. Webber’s counsel asked that, since the matter was unlikely to resolve, a date be set for a pre-trial conference for his client. He also suggested that the court consider appointing amicus for Wabason. Crown counsel noted that, as of this time, the jury sittings were “all accounted for up until next fall and Hobson has been in custody since July of 2009 and it would surely take precedence over this matter.”

[29] On April 20, 2012, the pre-trial conference for Webber was commenced but not completed. When the matter was spoken to in court, Crown counsel stated that Wabason had still not been able to retain Mr. Bains. Wabason stated that he still wanted to be represented by Mr. Bains, and if that proved impossible he would probably have to retain local counsel. Wabason’s sister informed the court that Mr. Bains had reiterated that he was not willing to represent her brother on a legal aid certificate unless LAO authorized his travel expenses. She further stated that she did not know when Mr. Bains would be available to conduct a trial. Crown counsel stated that she would write to Mr. Bains to obtain this information. Mr. Wabason’s sister advised the Court that Mr. Bains had advised her to tell Mr. Wabason to get a lawyer in town, because of the travel funding issue.

[30] On April 30, 2012, Wabason was still trying to retain Mr. Bains, who had requested that the matter be adjourned for four weeks. Crown counsel stated that she had not spoken to Mr. Bains: “Mr. Bains was here on Friday. I didn’t speak to him.” Mr. Wabason said he was still working on retaining Mr. Bains, and asked for four weeks during which time Mr. Bains would be retained. Crown counsel expressed concern that this was what Mr. Wabason had been saying since September. The court noted that a continuation of the pre-trial conference for Webber was needed in any event. Crown counsel suggested that there be a further adjournment to determine Mr. Bains’ status.

[31] On May 28, 2012, Crown counsel informed the court that the travel-expenses issue was still unresolved. Wabason informed the court that Mr. Bains was to be before the court the next day on another matter. Crown counsel and Wabason then both suggested that the present matter be adjourned to the next day.

[32] On May 29, 2012, Mr. Bains appeared before the court and confirmed that he was willing to represent Wabason, but not on a legal aid certificate that did not authorize his travel expenses. He informed the court that he was still in communication with LAO, but that there was “no finality as yet” about the requested authorization. He also stated that he would write to the Crown in regard to LAO’s final determination when it was received.

[33] At this appearance it was confirmed that the September and October jury sittings had now been “consumed” and “dedicated”. Mr. Bains indicated that there had been no “solidification” of the retainer issues, and that there had been ongoing discussions with Mr. Wabason and Legal Aid. Crown counsel asked to be advised whether Mr. Bains would accept Mr. Wabason as a client, in order to be able to consider whether appointment of amicus curiae would be necessary. Bains confirmed that he expected to be able to advise whether he could accept Mr. Wabason prior to the next court date on 9 July 2012.

[34] On July 9, 2012, Crown counsel stated that she had not received the expected correspondence from Mr. Bains. Wabason told the court that he had spoken to Mr. Bains, who had asked him to inform the court that he would be “coming on board” and to ask for a two-week adjournment. Wabason agreed to ask Mr. Bains to write to the Crown in this regard. The Court noted that “[t]here are lawyers in town here that you can retain if you wish to do so.”

[35] On July 30, 2012, Crown counsel asked that the matter be adjourned to a date when assigned Crown counsel was available so that the pre-trial conference for Webber could continue. Crown counsel also informed the court that he had received a letter from Mr. Bains confirming that he was now in a position to represent Mr. Wabason but that he was not available for the December sittings. The case was adjourned to August 30.

[36] On August 30, 2012, Mr. Bains appeared through an agent, a pre-trial conference report was filed, and a time-management teleconference was scheduled. This appearance was scheduled for a judicial pre-trial. Mr. Bains had previously requested that the pre-trial conference be adjourned as he would not be available and would not be ready. That informal request had been denied. The Pre-Trial Conference Report filed also made this plain. Mr. Watkins appeared as agent for Mr. Bains, but did not have instructions or authority to make commitments as contemplated by Rule 28.05(6).

[37] On September 17, 2012, in anticipation of a pre-trial teleconference and discussions between counsel to narrow the issues to be tried, Wabason was remanded to the October 29 assignment court.

[38] On September 19, 2012, the anticipated pre-trial teleconference was held. Crown counsel informed the court that she and Mr. Bains had begun the process of narrowing the issues to be tried and that it was anticipated that the issues could be further narrowed through additional discussions during the next 30-60 days. Mr. Bains agreed. In regard to possible trial dates, Crown counsel noted that another matter had priority at the December sittings and that she was not available for the January sittings, which were in any event already booked. Mr. Bains informed the court that he was not available in December due to another homicide trial commitment, was not available at the next open jury sittings in February due to another homicide trial commitment, and was not available for the May sittings due to yet another homicide trial commitment, but expected his calendar to open up from June onward.

[39] On November 26, 2012, Crown counsel informed the court that she and Mr. Bains had substantially narrowed the issues to be tried, had arranged for the trial to be heard during special jury sittings in June, and would arrange for dates for pre-trial applications. The court asked that prior to the next appearance counsel communicate with the trial coordinator and find a mutually available trial date. Mr. Bains indicated that he had a murder case in Hamilton that conflicted with the December 2012 jury sittings in Thunder Bay that was scheduled to continue until 11 January 2013, not including time for jury deliberations. Crown counsel indicated a “difficulty” with the January 2013 sittings because she had carriage of a three-day in-custody trial that was scheduled for 28 and 30 January 2013. The parties did not yet know how long this trial would take.

[40] The trial co-ordinator confirmed that the January 2013 jury sittings were scheduled to commence on 14 January 2013. They were already committed to another accused, although there was some discussion about whether that matter would proceed. The Court agreed to arrange a special jury sittings, and both counsel agreed to book off June 2013 for those special sittings, subject to a determination of how much time required.

[41] On January 28, 2013, the matter was spoken to and adjourned at the request of the Crown and the defence because the sentencing of Webber scheduled for February 11 could have an impact on ongoing discussions.

[42] On February 25, 2013, the trial date of June 17 was confirmed. Crown counsel provided the Court with email correspondence from Mr. Bains indicating that his current trial was running late, which had limited his opportunity to properly canvass all issues with Mr. Wabason, and was likely to impact the start time for his murder trial scheduled to begin in March 2013. Accordingly, Mr. Bains requested that the Crown act as his agent to adjourn the matter to the next assignment court. Ms. Kinsella advised that the Crown could not appear as agent, as the Crown’s position would be that motions dates needed to be set and the trial date confirmed.

[43] On May 9, 2013, an agent appeared for Mr. Bains and informed the court that the anticipated schedule of an ongoing homicide trial had “fallen out of alignment” and was now going to extend over the scheduled trial of the present matter in June. He further informed the court that Wabason understood that this would cause a delay, but that he continued to want Mr. Bains as his counsel and was willing to waive his s. 11(b) rights in regard to the delay that would occur. Bains’s agent further informed the court that if it became apparent that the consequent delay would be too extensive, Bains would work with Wabason to find alternative counsel. Crown counsel neither consented to nor opposed the consequent adjournment application, but noted that the next jury sittings in September and November were already booked. Regional Senior Judge Pierce expressed her dismay that the matter would not be going to trial as scheduled. Crown counsel fairly stated, however, that she accepted Mr. Bains’s explanation that he had become unavailable because another trial was going unexpectedly long, which was beyond his control. A new trial date was set, peremptory on the defence, for the December sittings, with the s. 11(b) consequences of the adjournment to December 2 expressly waived. Wabason stated that he understood that he would have to find another lawyer if Mr. Bains was not available for the December sittings.

[44] On May 27, 2013, an agent appeared for Mr. Bains. The court was informed that Mr. Bains was not available for the December sittings, and that he was seeking alternative counsel for Wabason. Mr. Bains subsequently filed an application for an adjournment, setting out how two preceding homicide trials had been delayed (1) due to the unavailability of the Court, which caused an unexpected delay, and (2) due to disclosure issues and illness of a key Crown witness, and that this was the reason that he had become no longer able to defend the present case at the June sittings.

[45] Crown counsel noted that Mr. Bains had not responded to correspondence concerning the scheduling of matters arising from the adjournment granted on 9 May 2013.

[46] On July 12, 2013, Steven Hinkson appeared as potential new counsel for Wabason and brought an application to adjourn the trial from the December sittings to the February sittings, when Mr. Hinkson was available. He also stated, in the alternative, that the present matter could be tried at the December sittings if the trial of another one of his clients, who was out of custody and being prosecuted by the federal Crown, could be adjourned to the February sittings. Crown counsel opposed the application for an adjournment. The court dismissed the application.

[47] On August 2, 2013, Crown counsel informed the court that Mr. Bains was actively assisting Wabason to find new counsel. Wabason acknowledged that he understood that this trial date was marked peremptory, and that he therefore had to seek a lawyer who was available for the December sittings. During this appearance, a voluntariness application was scheduled for a full day on 14 November 2013.

[48] On September 13, 2013, Mr. Doucette appeared as potential counsel for Wabason. Mr. Doucette then submitted that there would have to be an adjournment of the trial for the following reasons: that he intended to bring a Kokopenace application to challenge the Thunder Bay jury roll; that there would not be sufficient time for the Crown to make disclosure of materials relevant to that application in regard to the 2013 roll in order to litigate it before the December sittings; and that in any event the Crown should be allowed to rely on the post-Kokopenace 2014 jury roll as one that might be more Charter-compliant. He also stated that he could not be properly prepared to defend the case at the December sittings. The matter was put over three weeks for Mr. Doucette to be retained and to bring a formal adjournment application.

[49] On October 4, 2013, Mr. Doucette informed the court that he was now retained. He reiterated that time was needed to properly litigate the Kokopenace application and that he could not be properly prepared to defend the case at the December sittings. Crown counsel stated that she was not opposed to the adjournment. The application for an adjournment was allowed. It was agreed that pre-trial applications could be heard in January, and Mr. Doucette stated that he was available for trial throughout March, April, May and June. The week of January 27 was set for the Kokopenace application and the trial was scheduled for a special sittings to commence on 7 April 2014.

[50] Scheduling issues arose and counsel accordingly sought at a teleconference to have the Kokopenace application heard in May. The application was scheduled for June because there was not a judge to hear it in May.

[51] On November 29, 2013, Mr. Doucette asked that the week of January 27 be used to litigate the Crown’s voluntariness voir dire and a series of defence applications, including an application to determine the scope of the Crown’s disclosure obligation in furtherance of the Kokopenace application. He requested that a week prior to the April sittings be found to argue the Kokopenace application proper, and that the trial date of the April sittings be maintained, which Senior Regional Judge Pierce described as a “very tall order.”

[52] To this point the case was 33 months old.

III. THE PROCEEDINGS IN THE SUPERIOR COURT OF JUSTICE:

PHASE II—EVENTS IN 2014 AND 2015

[53] On January 3, 2014, a pre-trial teleconference was held before Regional Senior Judge Pierce. It was confirmed that all pre-trial applications but for the Kokopenace application proper would be heard the week of January 17 and that, once the defence had received any outstanding disclosure ordered by the court, the defence would complete the filing of its Kokopenace application by March 1.

[54] During January 27-31, 2014, the court heard all pre-trial applications but for the Kokopenace application proper.

[55] On February 12, 2014, the court heard continuing submissions, begun the week of January 27, in regard to the response to notices that had been served on First Nations with a privacy interest in materials that were to be disclosed in relation to the Kokopenace application.

[56] On February 20, 2014, the court heard concluding submissions in regard to the response to the notices that had been served on the First Nations. Mr. Doucette confirmed that, with the notice issue now disposed of, matters were on schedule for the hearing of the Kokopenace application, which was set, in accordance with Justice McCartney’s first availability, for the week of March 31.

[57] On February 24, 2014, Justice McCartney released his decision in regard to the scope of disclosure in relation to the Kokopenace application and his decision in regard to other pre-trial applications.

[58] During March 31—April 4, 2014, the Kokopenace application was heard and Justice McCartney reserved judgment.

[59] On April 15, 2014, Mr. Justice McCartney released his decision finding that the jury roll for 2014 was unconstitutional. The remedy ordered was “a temporary stay of proceedings for one year to allow the Applicant to have his trial before a jury chosen from a new jury roll.”

[60] On April 17, 2014, Justice McCartney entered the temporary stay of proceedings and, as ancillary relief under s. 24(1), ordered that Wabason be released on bail. To this point in time, Wabason had been in custody three years, 28 days. His Honour also ordered: that the case next be spoken to in assignment court on October 27, 2014; that the Crown make full disclosure of all relevant material concerning the 2015 jury roll no later than January 31, 2015; and that the Crown summons Wabason to court no later than that date.

[61] Mr. Wabason did not make any application for judicial interim release prior to the decision of Justice McCartney on April 15, 2014, and the subsequent appearance on April 17, 2014, at which time he was released.

[62] On June 8, 2014, Mr. Wabason was arrested on an allegation that he had breached the recognizance entered into pursuant to Justice McCartney’s release order. It was alleged that Wabason had breached his recognizance on May 24 by being in a licensed establishment and by being out of his residence past his curfew.

[63] On August 15, 2014, Mr. Justice Fitzpatrick held a revocation hearing resulting in an order. His Honour found that the evidence of the alleged offence was not sufficient to be accepted even on the low reasonable and probable grounds threshold and, accordingly, ordered that Wabason’s bail on the present matter be continued on the same terms. As had previously been agreed between counsel in the event of this result, Wabason was then also released on a parallel Ontario Court of Justice recognizance in regard to the alleged breach charge, on the same terms and conditions. From his June arrest prior to this point in time, Wabason had been in custody an additional 2 months, 7 days, bringing his total time in custody to 3 years, 3 months, 5 days.

[64] On October 27, 2014, the case was spoken to in assignment court before Regional Senior Judge Pierce. Defence counsel noted Justice McCartney’s order that the Crown make disclosure on the Kokopenace application in regard to the 2015 jury roll no later than January 31; reviewed what the parties agreed was the fastest possible schedule for the review and filing of the application materials and the preparation of oral argument on that application; and explained that this would lead to the Kokopenace and other pre-trial applications being heard during March 30—April 2 and April 7—April 10, which would allow the trial to take place beginning May 11, 2015, the first day of that months’ jury sittings, if the case was not stayed. He further explained that all three defence counsel who were involved in the case were available for all these dates. On this day, Senior Regional Judge Pierce, both in regard to another case and the present matter, stated that she was working with a serious shortage of judges—there being only three full-time judges available in the jurisdiction during the time-frame that was being discussed—and that she would need to convene a teleconference to fine tune the application and trial dates that were being proposed because she could not promise that a judge would be available for those dates.

[65] On October 30, 2014, the teleconference referred to on the last court day took place, and dates for the hearing of pre-trial applications and the trial were set.

[66] On November 13, 2014, Mr. Wabason was arrested on charges that he had breached his bail conditions on 17 October 2014, and breached his bail conditions while also committing an assault on 3 November 2014. He was detained pursuant to s. 524 following a bail revocation hearing held at the Superior Court of Justice on 29 January 2015. He remained in custody on consent on both informations that were before the Ontario Court of Justice.

[67] On November 24, 2014, the dates that had been set during the October 30 teleconference were placed on the record. Two weeks were set commencing June 1 for the Kokopenace and other pre-trial applications, and three weeks commencing September 14 were set for the trial. Mr. Doucette noted that the Kokopenace application was not as previously suggested to be heard in May because there was no judge available to hear it at that time, which necessitated a trial date being set in September, the month of the next available jury sittings.

[68] On January 29, 2015, Justice Fitzpatrick held a revocation hearing. It was admitted that there was a case to meet in regard to the alleged breaches of recognizance on October 17 and November 3, 2014. The issue was whether Wabason should none the less be re-released. His Honour held that Wabason should be detained on the secondary ground and, accordingly, he ordered that Wabason’s bail on the present matter be revoked.

[69] From his November arrest to the scheduled trial date, Wabason will have been in custody an additional 10 months, 1 day, bringing the total time that he will have been in custody to 4 years, 1 month, 6 days.

[70] On April 17, 2015, the temporary stay of proceedings ended. Prior to the end of the temporary stay, defence counsel sought pre-trial application dates in late March and early April 2015 so that the trial could take place at the May 2015 jury sittings, if the case was not once again stayed. Due to a lack of judicial resources, the pre-trial applications were scheduled for June 2015 and the trial for the September 2015 sittings.

[71] Contemporaneously, the Accused brought an application challenging the composition of the 2015 roll. That application was dismissed by me on July 27, 2015.

[72] In the course of this application being argued, counsel advised that on June 10, 2015, Mr. Wabason was sentenced on one count of assault contrary to s. 266 of the Criminal Code. His sentence was one day of jail in addition to 89 days pre-sentence custody, followed by 12 months’ probation. Enhanced credit for pre-sentence custody was awarded on a 1.5:1 basis, such that 60 days that he has been in custody are attributed to this sentence.

Applicant`s Position

[73] Mr. Doucette references the Supreme Court of Canada decision in R. v. Godin, supra, at para. 18 where Cromwell J. stated:

[18] The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, “[t]he general approach . . . is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.”

[74] Mr. Doucette relies on the leading cases of Askov and Morin, where the Supreme Court of Canada held that, to determine whether there has been unreasonable delay contrary to s. 11(b) of the Charter, four distinct factors are to be considered: the total length of the delay; whether there has been any waiver of the delay; the reasons for delay; and prejudice to the interests of the defendant – including his liberty, security of the person and fair trial interests – occasioned by the delay.

[75] Mr. Doucette makes it clear in his submissions that he is alleging unreasonable delay only in what occurred in the Superior Court after December 31, 2013. In regard to the proceedings in the Ontario Court, he submits that although the time that Mr. Wabason’s charges were before that court was not unreasonable, that time must be taken into account as part of the total delay.

[76] He submits that the same applies to the first phase of proceedings in the Superior Court, that although the time before the court in this phase was not unreasonable it too must be taken into account as part of the total delay. At the end of this phase, the case was 33 months old.

[77] He submits that from January 2014 on, all delay was caused by failure of the Ontario Government to provide a proper jury roll, and also a failure to provide adequate judicial resources to this jurisdiction.

[78] Counsel agree that the total delay of 53 months and 25 days in the case at bar is sufficient to trigger a consideration of the remaining factors.

[79] With respect to the second factor of waiver, Mr. Doucette references the Supreme Court of Canada in Morin: “The length of [the total period of delay] may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this [remaining] period is unreasonable having regard to the interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.” Wabason waived the delay between the June sittings and the December sittings (June 18—December 2), a period of five months and 15 days. Mr. Doucette submits that when this amount is subtracted from the total delay, the remaining delay that is to be considered is 48 months and 10 days.

[80] He notes that the reasons for delay are traditionally categorized as: time requirements that are inherent; actions of the Crown; actions of the defence; limits on court resources that are institutional, which the Supreme Court of Canada held (Morin, p. 18) is “the most difficult to reconcile with the dictates of s. 11(b)” of the Charter; and causes that are miscellaneous or other. Where there are multiple causes of delay that are not solely attributable to the state (whether in regards to the actions of the Crown or court resources), these have been labelled “neutral” and have not been used in the calculus of state delay that “cannot be relied upon … to explain away delay that is otherwise unreasonable.”

[81] It is the Applicant’s position that the crux of the issue in the case before me is that, in the context of a case that was already more than two years old, and thus at a time when it was especially important that the case proceed expeditiously, there was an additional 21 months of institutional delay caused by the failure of Ontario to provide a constitutional jury roll and to provide adequate judicial resources to Thunder Bay.

[82] The Applicant submits and concedes that the reasons for the periods of delay in the lower court either were inherent in the nature of the case - the prosecution of four and then three defendants on a serious charge - or were “neutral,” in that they were caused by overlapping actions of the Crown and the defence. He agrees that there was thus no institutional delay. He submits that the 11 months of these proceedings in the lower court are none the less important: they are part of the total delay in the case during which prejudice was accruing, in particular because by the end of this period the Applicant had already spent 10 months and 25 days in custody, and they are thus an important foundational context for the delay that subsequently occurred in the trial court.

[83] In reviewing the delay in Superior Court in what he describes as Phase I, Mr. Doucette submits that in this period of 17 months and 3 days (after the waived period is subtracted) any delay from February 14, 2012, to August 30, 2012 (six months and 16 days), was inherent or other/inherent. He relies on the fact that Legal Aid funding was a factor beyond the parties’ control.

[84] Mr. Doucette then categorizes the period from August 30, 2012, to June 17, 2013 (nine months, 18 days), as neutral because there was no jury panel for three months, the Crown was not available in the fourth and the defendant not available in the fourth or fifth month. The first mutually available date for counsel was in June.

[85] He then assesses from December 2, 2013, to December 31, 2013, as neutral. By this time, the Applicant had spent two years, 9 months and 11 days in custody.

[86] In regard to the 21 months and 13 days of Phase II in the trial court, from January 2014 to the trial date in September 2015, Mr. Doucette submits that time is all attributable to institutional delay necessitated because from January 1, 2014, to April 17, 2014, the jury roll was unconstitutional. He submits from April 2014 (when proceedings were stayed) to April 2015 the roll remained unconstitutional.

[87] He then submits that 24 days (from April 17, 2015 to May 11, 2015) were a new intake period, and that the time from May 11, 2015, to the projected trial date of September 2015 is institutional delay in setting a trial date due to the lack of judicial resources.

[88] In sum, Mr. Doucette submits that the delay that accrued in these periods of time, which totals 21 months, is all institutional delay, three times the Supreme Court’s guideline of 6-8 months for institutional delay in the trial court set in Askov and confirmed in Morin.

[89] Mr. Doucette comments on the fourth factor of prejudice to those interests of the Applicant that s. 11(b) of the Charter seeks to protect, namely liberty, security of the person, and a fair trial. He references Cromwell J. in the Supreme Court in Godin:

[31] The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.”

[90] In regard to the Applicant’s liberty interest, Mr. Doucette notes that by the time that the charges were temporarily stayed and he was released on bail, Mr. Wabason had already spent three years and 28 days in custody. (Due to his ongoing jeopardy in the present matter, in the period since the charges were stayed, as the result of two arrests and on the second occasion the revocation of his bail by the trial court, he has spent an additional 12 months and eight days in custody.) Mr. Doucette argues that the total amount of imprisonment to the trial date is thus four years, one month and six days, which, even if one deducts the waiver period, amounts to more than three-and-one-half years in custody.

[91] In regard to the Applicant’s security of the person interest, he submits that I should infer that Mr. Wabason has suffered the anxiety and concern that normally arises when faced with the most serious of charges for a protracted period of time. As stated by Sopinka J. for the unanimous court in R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120, 52 C.C.C. (3d) 97, and thereafter quoted and cited with approval by the majority of the Supreme Court in both Askov and Morin:

“Having found that the delay is substantially longer than can be justified on any acceptable basis, it would be difficult to conclude that the appellant’s s. 11(b) rights have not been violated because the appellant has suffered no prejudice. In this particular context, the inference of prejudice is so strong that it would be difficult to disagree with the view of Lamer J., in Mills and Rahey that it is virtually irrebutable.”

[92] In considering the factor of balancing the interests he submits that, as in Askov, “there is no basis upon which [the institutional delay in this case] can be justified, and as a result a stay of proceedings must be directed.” He further submits that the sheer length of the total delay in the present matter, the unjustifiable and extraordinary institutional delay in the latter half of the total delay, and the prejudice to the Applicant’s liberty and security of the person interests to be inferred from such long delay, demonstrates that the delay has been unreasonable.

[93] He acknowledges that, as held in Godin, although there is a strong societal interest in having serious charges tried on the merits, the process of a case can be “delayed to such a degree that [the defendant’s] constitutional right to be tried within a reasonable time [is] violated” and thus requires a stay of proceedings.” In this regard, he references R. v. Kporwodu and Veno (sub nom R. v. Kporwodu (2005), 2005 11389 (ON CA), 195 C.C.C. (3d) 501 (Ont. C.A.), paras. 184-186, 192-193), where the Court of Appeal upheld a stay of proceedings against a prosecution of parents for the first degree murder of their infant child where there had been, respectively, 55 and 42 months of total delay, and neither defendant had spent any time in custody..

[94] In summary, Mr. Doucette has focused his position by dividing this case into three stages: proceedings in the Ontario Court of Justice to the end of the preliminary inquiry; from committal in this court until the matter was stayed by McCartney J. in 2014; and from that date to the present. He states his position that he only alleges unreasonable delay in what happened in this court after December 31, 2013. He acknowledges that in regard to the proceedings in the Ontario Court of Justice, the time was not unreasonable, but must be taken into account as part of the total delay. The same acknowledgment is made with respect to the first phase of proceedings in this court. He does note that by the end of 2013, this case was 33 months old. The additional time beyond that, from January 2014, is what he argues amounts to institutional delay, caused by failure of the Ontario Government to provide a proper constitutional jury roll, and a failure to provide adequate judicial resources to the Northwest Region.

Crown’s Position

[95] As the Crown acknowledged the length of time is sufficient to trigger the delay issue, he focused first on the fact of the reasons for delay. The Crown approaches his submissions by responding to the three stages of proceedings in this matter as noted by the Applicant.

[96] The Crown agrees that there is no delay that can be attributed to the Crown in the Ontario Court. Although he agrees that stage can be categorized as inherent, the Crown points to the actions of Mr. Wabason in retaining counsel of choice, which the Crown submits – while not a factor of fault on the part of the Applicant – are an indication that Mr. Wabason was content to have the proceedings take a longer time than would have been taken, absent the issue of attempting to retain out-of-town counsel. It is, the Crown comments, part of looking at ‘the forest rather than the trees.’

[97] He submits that the same comments apply to Phase I in the Superior Court. At the core of the time taken in this phase are the decisions Mr. Wabason made about who was going to be his counsel, and thereafter counsel’s decisions about how the matter was going to be litigated, and availability of counsel. While the Crown takes no issue with Mr. Wabason’s right to retain out-of-town counsel, the Crown submits that there were consequences that flow from that in terms of how quickly the matter could proceed and, in that sense, though not as an aspect of fault, the time is attributable to the Accused. The Crown submits when looking at scheduling the first trial date in June 2013, the predominant factor in scheduling is Mr. Bains’s schedule.

[98] He argues that the same comment applies to the second period from June to December 2013, and similar considerations apply with respect to moving from December 2013 into April 2014. The Crown argues that Mr. Wabason must be considered to have understood that if he chooses to have a particular counsel, he needs to know when that counsel is available in order to have the matter proceed as quickly as possible. Similarly, an accused must be aware of the potential delay in bringing motions and applications.

[99] With respect to the third phase, the Crown acknowledges that there was delay arising from Justice McCartney’s decision to stay the charges. The Crown disagrees with the submission of the Applicant that the appropriate starting point is January 2014. He argues that the delay that arises from the absence of a constitutional jury is from the point of time that that decision is made from when the trial would otherwise have happened. Jury rolls are finalized at the end of December and that is not sufficient time to use a new roll to get jurors into a January sitting. The Crown argues that Justice McCartney’s decision stayed the matter to the next year’s jury roll and notes that Wabason was to be brought back to court in January 2015. The Crown submits that, if Wabason had not decided to litigate the jury issue this year, he could have had a trial in the March or May sittings. The reason for any delay now was because of the Applicant’s challenge to this year’s roll. There is, the Crown submits, an interplay between the issue of unreasonable delay and the challenge to the jury roll.

[100] The Crown submits that the time period for the Askov – Morin test is the time period for the entire proceeding. The Crown notes that in the total time for proceedings in Ontario Court of 10 months and 25 days, no judicial interim release was applied for throughout. All that time, he submits, was either inherent, or inherent and Accused in retaining of counsel.

[101] He submits that the total time between committal to the Superior Court on the first Kokopenace application was two years, two months and one day. The Crown submits that two months, six days was inherent intake time; four months and 10 days was the result of the Applicant not having retained counsel; 20 days were for defence counsel to review disclosure; eight months and 28 days from September 19, 2012, to June 17, 2013, was to schedule the trial at the earliest date available to defence counsel (which the Crown categorizes as inherent and defence related); five months and 15 days from June 17 to December 2, 2013 (was waived by defence because defence counsel was no longer available and was being removed from the record); and four months and 13 days from December 2 to April 15, 2014, was because of a trial adjournment at defence request to address defence motions and allow new defence counsel to prepare. The Crown attributes this to defence delay.

[102] The Crown relies on the decision in R. v. Austin, 2009 ONCA 329, 245 C.C.C. (3d) 284, at para. 56 where the Court of Appeal notes, “It is an error to isolate the delay in one court and assess the reasonableness of that delay in isolation.”

[103] The Crown then notes that total times between the decision that the 2014 jury roll was unconstitutional and the trial scheduled for September is one year and five months. The Crown submits that the 10 months, 22 days from April 15, 2014, to March 9, 2015, is delay arising from the time of the Applicant’s challenge to the 2014 roll to the first available jury sittings in 2015. He notes that a further delay from March 9 to June 1, 2015, is time from the first available 2015 sittings to the beginning of pre-trial motions.

[104] The first time periods, June 1 to June 12 (when pre-trial motions were held), and from June 11 to the scheduled trial date in September, totalling three months and 12 days, is time which the Crown categorizes as defence/inherent or defence/inherent/institutional.

[105] The Crown’s position is that, taking all of the proceedings into consideration, this case has taken this length of time to prosecute primarily because of decisions made by the Applicant. He acknowledges the total time is approaching 54 months, but argues that the unreasonable delay arising from the 2014 jury roll decision is less than 11 months, below the 14-18 guidelines range established in Morin. Further, he argues that even if the operative delay is increased to account for some portion of the delay between the May 2014 and September 2015 sittings, the delay is in the middle of the range. He submits that even factoring some institutional delay from the spring to December and 10 ½ months flowing from Justice McCartney’s decision, the delay is in the range of acceptable delay.

[106] Referencing the factor of prejudice to the application, the Crown submits that the Applicant does not allege, and the record does not provide any evidence to suggest, any prejudice to the Appellant’s fair trial rights as a consequence of delay. The institutional delay has occurred in order to enhance the Applicant’s right to a fair trial. He submits that the Applicant relies upon inferred prejudice, emphasizing his liberty and security of the person interests. He argues that the former is primarily as a result of the time he has spent in custody awaiting trial. The Respondent concedes that prejudice arises from extended periods of pre-trial detention, however, it is important to distinguish between prejudice arising from the fact of being charged, and prejudice arising from delay.

[107] In this case, the Crown argues that the Applicant was responsible for all of the delay between his arrest and his initial release subsequent to the decision on the first Kokopenace application. During this period of detention, he did not seek judicial interim release. The combination of these factors - that the Applicant was prepared to engage in a course of action that led to further delay while not seeking release - limits the prejudice that ought to be inferred.

[108] After the decision on the first Kokopenace application, the Crown consented to the Applicant’s release on very reasonable conditions. This served to mitigate continued prejudice in light of the delay arising from that decision.

[109] Although delay occurred as a consequence of the 2014 Kokopenace application, this was known in April 2014 when that decision was made. The Applicant delayed this present application until after the 2015 challenge to the jury. This speaks against an inference of prejudice arising from Kokopenace caused delay.

[110] The Crown’s position notes that the Applicant asks the court to infer interference with his security of the person interest arising from anxiety and concern from facing serious charges for a protracted time. The Crown submits that this inference ought not be drawn on the facts of this case, particularly given that the overwhelming majority of the delay is attributable to the Applicant.

[111] In considering the interest in a trial on the merits, the Crown argues that this is a serious case. The charges allege a homicide in the course of a home invasion, in which the victim of the home invasion watched the father of her child collapse in front of her after having been stabbed four times in the back. There is a substantial public interest in a trial on the merits.

[112] With respect to the factor of balancing, the Crown argues that there is an obvious and substantial interest in having a determination on the merits. The matter has been before the courts for a long time, but most of that time is because of the Applicant’s own decisions. He submits that in a case where the only operative delay is below the ceiling of the Morin guidelines, and the bulk of the proceeding delay is attributable to the Applicant, the court ought conclude that the Applicant has not met his onus to establish a breach of s. 11(b) of the Charter.

Legal Principles

[113] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Section 11(b) is designed to protect the rights of accused persons and also the interest of society in the fair and expeditious resolution of criminal proceedings.

[114] In R. v. Morin, supra, Sopinka J. held that the primary purpose of s. 11(b) of the Charter is to protect three rights:

1. the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings;

2. the right to liberty, which is protected by seeking to minimize exposure to restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and

3. the right to a fair trial.

[115] The burden of proof is on the defendant to establish that he or she has not been tried within a reasonable time: R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, 49 C.C.C. (3d) 289, at para. 25.

[116] The Ontario Court of Appeal provides a caution to trial judges in R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 48:

Judges should be cautious about engaging in a minute analysis of the normal vicissitudes of a trial for the purpose of allocating delay to the Crown or to the defence on s. 11(b) Charter applications - for example, the need to pause to consider unforeseen developments during the trial, the customary requirement to juggle the line-up and availability of witnesses, insignificant administrative glitches or early adjournments. Except in rare cases where unreasonable delay arising from such issues can readily be attributed to one side or the other or to the court system, I would think that delays arising from these sorts of factors during the normal evolution of a trial would be part of the inherent time requirements of the case.

[117] In R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, Justice Code heard four appeals staying proceedings for unreasonable delay. He set out a comprehensive analysis and review of the principles in cases involving undue delay at paras. 2-9:

[2] The one error that is common to all four appeals is the proper calculation of institutional delay. In all four cases, the entire period from the set date appearance to the trial date was automatically characterized as systemic or institutional delay, without further analysis. This is not a correct approach to calculating this particular cause of delay, given that institutional delay only "starts to run when the parties are ready for trial but the system cannot accommodate them", as Sopinka J. put it in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 71 C.C.C. (3d) 1, at pp. 794-95 S.C.R., p. 18 C.C.C. The court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were ready to try the case.

[3] It is now well known that the framework for s. 11(b) motions requires the court to analyze four distinct factors: the overall length of delay from the laying of charges until the trial concludes; waiver of any individual time periods; the reasons for the various periods of delay; and prejudice to the particular interests of the accused protected by s. 11(b). See R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120, [1989] S.C.J. No. 119, 52 C.C.C. (3d) 97; R. v. Askov (1990), 1990 45 (SCC), 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106, 59 C.C.C. (3d) 449; R. v. Morin, supra.

[4] Having made findings about each of these four factors, the final balancing stage of analysis requires consideration of the societal interest in a trial on the merits. See R. v. Morin, supra, at pp. 12-13 C.C.C.; R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No. 5004, 191 C.C.C. (3d) 347 (C.A.), at paras. 21-25; R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711, 190 C.C.C. (3d) 453 (C.A.), at para. 41.

[5] The first factor, concerning the length of overall delay, is simply a mechanism for weeding out frivolous applications. It is referred to as "the triggering mechanism or threshold determination of the excessiveness of the delay". It is only necessary to go on and consider the other three factors if the overall period of delay "is of sufficient length to raise an issue as to its reasonableness". See R. v. Askov, supra, at p. 681 O.R., pp. 1209-10 S.C.R., p. 466 C.C.C.; [page191] R. v. Morin, supra, at p. 789 S.C.R., p. 14 C.C.C.

[6] The second factor, waiver of time periods, can be either express or implied but it "must be clear and unequivocal" and made with "full knowledge of the rights the procedure was enacted to protect". When counsel expressly states, on the record, that s. 11(b) is waived for the period of an adjournment, there is little difficulty in applying this factor. However, a waiver can also be implied, for example, from consent to a period of delay where "a choice has been made between available options" and "the actions of the accused amounted to an agreement to the delay" rather than "mere acquiescence in the inevitable". Once a waiver has been found, that period of delay is simply removed from the s. 11(b) analysis and the overall delay is shortened. See R. v. Askov, supra, at p. 674 O.R., p. 1247 S.C.R., pp. 481-82 and 494-95 C.C.C.; R. v. Morin, supra, at p. 790 S.C.R., pp. 13-15 C.C.C.

[7] The third factor, reasons for delay, can be the most important and also the most difficult of the four factors in some cases. It does not involve findings of fault, as there can be good or necessary reasons for delay. This factor simply requires an objective analysis of each period of delay in order to determine its cause. The five traditional causes are: the inherent time requirements of the case; any actions of the defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes, such as judicial delays. Careful analysis of the transcripts of each date where the proceedings were delayed is critically important to this factor. Having objectively determined the cause of each period of delay, based on the transcripts and any other relevant evidence, this factor then assigns a weight to that period. Some delays are said to "weigh against the Crown", some delays are said to "weigh against the defence" and some delays are said to be "neutral". Needless to say, delays caused by the accused's own actions "will justify" an otherwise unreasonable period of delay because the accused invariably seeks some benefit from such delays, such as additional time to prepare, to retain counsel, to bring some collateral proceedings or to try to resolve the case. On the other hand, delays caused by the Crown or by inadequate resources "cannot be relied upon . . . to explain away delay that is otherwise unreasonable". Finally, delay due to the inherent requirements of the case "is neutral and does not count against the Crown or the accused". See R. v. Askov, supra, pp. 477-81 and 483 C.C.C.; R. v. Morin, supra, at p. 794 S.C.R., pp. 16-23 C.C.C.; R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 128 C.C.C. (3d) 483, at p. 500 C.C.C. [page192]

[8] The fourth factor is prejudice to those interests of the accused that s. 11(b) seeks to protect, namely, liberty, security of the person and fair trial. Prejudice to one or more of these interests can be inferred, without extrinsic evidence, from "a very long and unreasonable delay", in other words, from delay that is "substantially longer than can be justified on any acceptable basis". In a case where the period of unjustified delay is "closer to the line", the accused may lead evidence of actual prejudice to one or more of the protected interests, in order to show "that there has been unusual prejudice by reason of special circumstances". See R. v. Askov, supra, at p. 689 O.R., p. 1218 S.C.R., pp. 474 and 482-84 C.C.C.; R. v. Morin, supra, at pp. 23-24 C.C.C.; R. v. Smith, supra, at p. 1138 S.C.R., p. 111 C.C.C.

[9] At the end of assessing these four factors, the court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown. The court should also arrive at some assessment as to the strength or weakness of the claim to prejudice. It is only unreasonable periods of delay, causing prejudice, which s. 11(b) protects against. As noted above, these factors must then be balanced against the societal interest in a trial on the merits.

ANALYSIS

Length of the Delay

[118] The overall length of time began with the arrest of the Accused on March 19, 2011, and extends to the scheduled trial date of September 14, 2015, which totals 53 months and 25 days. In that time frame, the Applicant has waived six months, leaving a time of 48 months, 10 days to be factored into the 11(b) analysis.

[119] Within this time frame, counsel acknowledges that the only period of unreasonable delay is in Phase II in the Superior Court (January 2014 to September 2015), a period of 21 months. At that time the case was 33 months old.

[120] As established in Askov, Morin and Godin, the guidelines refer to periods of eight to 10 months in the provincial courts and six to eight months from committal to trial, for a total guideline period of 14 – 18 months. Despite these timelines, the Supreme Court has been clear that the time lines are to be treated as guidelines, and not as a fixed limitation period to be applied in a mechanical fashion (Morin, paras. 51-52).

[121] There is an initial disagreement between counsel as to the interpretation of McCartney J.’s endorsement that there be a stay of “one year to have his trial before a jury chosen from a new jury roll”. The endorsement includes that the matter was to be adjourned to the October 2014 assignment court, and that dates be set in January 2015 for the disclosure of materials.

[122] I agree with the interpretation of the Crown that the endorsement should be purposively interpreted that the trial could have been held beginning in jury sittings in March 2015, based on the 2014 jury roll. The delay in this matter not proceeding in the jury sittings in April 2015 was the consequence of a new application challenging the 2014 roll. That challenge was ultimately unsuccessful.

[123] In my view, in the unusual circumstances in this case, that is whether the impugned unreasonable delay is 21 months submitted by Mr. Doucette, or a maximum of 14 months as submitted by the Crown, is of no particular consequence. Even if I accept the period of delay of 21 months, I rely on the comments of Justice Code in Lahiry at para. 100:

[100] … In any event, even if the guidelines had been exceeded, a careful analysis of the reasons for delay is critically important on any s. 11(b) motion because the guidelines are flexible and the balancing takes a number of other factors into account. As Sopinka J. stated in R. v. Morin, supra, at paras. 50-52:

The purpose of the suggested period was not therefore that it was to be treated as a limitation period and inflexible . . . A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors . . . I have already stressed that a guideline is not to be treated as a fixed limitation period. It will yield to other factors.

Waiver

[124] As noted in these reasons, the Applicant had waived the period of delay from June to December 2013.

Reasons For The Delay

[125] It is clear that the Applicant’s focal point of the delay is the time period as a consequence of the ruling to stay proceedings based on the flawed jury roll. The Crown acknowledges that to be institutional delay. The Applicant does not allege any unreasonable delay up to that point, however, the entire time must be reviewed in looking at the reasons for this trial to have taken over four years to be ready to proceed. Additionally, it is important to consider the events up to January 2014 in order to consider the factor of prejudice, and for the balancing which must be done.

[126] I review the various time periods in this case as follows:

March 19, 2011 – February 27, 2013

(1) During this time period, disclosure was provided. After Mr. Young did not appear, a focus hearing was held on September 9, 2011, at which time Mr. Wabason indicated his intention to retain Mr. Bains. This is the beginning of the attempts to retain Mr. Bains.

(2) The matter was then adjourned periodically from October 3, 2011, to November 18, 2011, when Mr. Joseph was appointed amicus so the preliminary could proceed beginning January 9, 2012. During this time, although counsel does not allege unreasonable delay, Mr. Wabason knew as of October 19, 2011, that there was an issue with Legal Aid funding Mr. Bains.

(3) Of significance is that after the indictment was filed in Superior Court in February 2012, in April 2012 the court is told that Mr. Bains is suggesting to Wabason through his sister, to get other counsel. Mr. Bains appears, not as counsel, on May 29, 2012, and says he will let the Crown know by June 25 if he has resolved the issue of Legal Aid funding for travel expenses.

(4) On July 9, 2012, Mr. Wabason appeared, and said he was advised by Mr. Bains to seek a two-week remand. The Crown had not been notified of that request. On July 30, Mr. Bains notified counsel that he had finalized his retainer with Legal Aid. A pre-trial date was set.

(5) On September 19, 2012, a pre-trial teleconference was held, and a date of June 2013 was discussed. On November 26, the Crown stated that issues had been narrowed, and on February 23, 2013, the June trial dates were confirmed.

(6) On May 9, 2013, Mr. Watkins appeared as agent for Bains to request an adjournment of the June trial date. Trial was set for the December sittings with Mr. Wabason waiving that delay. I find that although the Crown did not oppose the adjournment, the Crown was otherwise prepared to proceed in June.

(7) On May 27, 2013, although Mr. Watkins appeared as agent in setting the December date, Mr. Bains informed the court that he could no longer be counsel as he already had a trial scheduled for December.

(8) June 12, 2013, Mr. Hinkson appears as potential counsel and seeks to adjourn the trial to February, which is not granted.

(9) On July 25, 2013, Mr. Bains is formally removed as counsel. From July to September 2013, Mr. Wabason continues to seek counsel.

(10) On September 13, 2013, Mr. Doucette appears as potential counsel, and October 4 he goes on record as counsel. He states he will seek an adjournment to prepare. On October 4, an adjournment is granted, and a trial date of April 7, 2014, is fixed with pre-trial motions to be heard in January.

January 3, 2014 – September 14, 2015

(11) Pre-trial applications are scheduled. Kokopenace application is heard, in January, and proceedings against Mr. Wabason are stayed.

The Time To Obtain Counsel

[127] I am satisfied that from the time of his arrest to the retaining of Mr. Doucette, the delay from February 2012 to October 2013 is related significantly to Mr. Wabason and the difficulties with obtaining counsel. Mr. Doucette has argued that those difficulties should be attributed to Legal Aid, and the time it took for counsel to obtain funding for travel expenses.

[128] In the overall calculation of delay, I note that as early as the Preliminary Hearing in January 2012, Mr. Wabason was experiencing difficulty in retaining Mr. Bains. In February, Bains suggests to Wabason that he seek other counsel. Bains’ retainer was formalized on July 30, 2012. From that date, to the retaining of Mr. Doucette on October 4, 2013, the record is consistent with adjournment requests by Bains and Hinkson.

[129] Despite the fact that counsel alleges no unreasonable delay in Phase I, as Mr. Wabason had first stated his intention to retain Mr. Bains in October 2011, I attribute the period of Phase I, from February 12, 2012, to Mr. Bains formally going on the record on August 30, 2012, to the Applicant. This period amounts to six months, 16 days.

[130] From the time Mr. Bains goes on the record on August 30, tentative trial dates of June 2013 were set. On February 25, 2013, the trial dates were confirmed. In June, those dates are adjourned to the December sittings, at the request of the Applicant. While he waives his rights during this period, I note in the overall consideration of delay, this six month delay is attributed to the Applicant.

[131] On May 27, 2013, Mr. Bains advises the court through an agent that he could not be available for the December dates. A pre-trial was fixed for June 25, 2013.

[132] On July 25, 2013, Mr. Bains was removed as counsel of record. On September 13, 2013, Mr. Doucette came on record as “potential” counsel, and indicated he would seek an adjournment. That retainer was formalized on October 4, 2013, the trial dates were vacated, and a trial date of April 7, 2014, was established.

[133] I do not consider the period from July 25 to October 4 as inherent, or other. The fact is that this period of time was again a result of Mr. Wabason’s continuing insistence on Mr. Bains, and then his unavailability. I attribute this two month, 10 day delay to the Applicant.

[134] When Mr. Doucette came on as counsel on October 4, 2013, a trial date of April 7, 2014, was set. This is the date on which I find that a counsel had been formally retained and was prepared to go to trial. Institutional delay begins at the time counsel is prepared for trial. It was the Applicant’s request to adjourn the trial from the December date to the April 2014 sittings. That period of delay, four months and 13 days, is not attributable to the Crown.

[135] The fact that Mr. Wabason went through four counsel before obtaining a counsel who could proceed on the trial dates should not now permit him to rely on the difficulty in obtaining counsel as a reason for delay.

[136] Justice Code in Lahiry, supra, considered the issue of the availability of counsel at para. 29:

[29] More recently, in R. v. Schertzer, supra, at paras. 91-94 and 110-12, the court treated the entire 13-month period between setting a date and the preliminary inquiry as "part of the inherent time required to prepare for the lengthy preliminary inquiry". Similarly, the entire ten-month period between setting a date and the trial was also "part of the inherent time requirements of the case" because "the date was dictated by defence counsel's availability". In R. v. Meisner, supra, at paras. 35-38, Hill J. set out a similar analysis to the effect that the time defence counsel required to prepare the case and to make dates available in his calendar was "not properly characterized as institutional delay".

[137] In R. v. Chatwell, 1998 3560 (ON CA), [1998] O.J. No. 205, 122 C.C.C. (3d) 162, the Ontario Court of Appeal noted at paras. 14 and 15:

[14] Moreover, it seems to us that counsel who remains unpaid -- whether by Legal Aid or otherwise -- should either proceed to discharge his professional responsibilities and proceed to trial or, if he is sufficiently concerned about non-payment, should seek to remove himself from the record. At the very least, if counsel does neither but rather seeks an adjournment in order to clarify his financial position, the resulting delay cannot properly be seen as institutional for the purposes of s. 11(b) of the Charter. Rather, it must appropriately be treated as the responsibility of the defence.

[15] While it is not necessary to determine whether the conduct of Legal Aid could ever be appropriately considered to be the source of institutional delay, we are of the view that the judge below erred in the circumstances of this case in attributing to the state, rather than the defence, responsibility for the delay from January 2, 1996.

[138] At para. 84 in Lahiry, Justice Code dealt with the fact that one of the appellants made certain choices in seeking adjournments, which were considered as “apparently beneficial delays” in stating:

[84] Carreira is not to be faulted for seeking these delays, although the adjournment of the third trial date is particularly suspect. He simply made choices, asserting that he needed more time for a variety of reasons, and he then made use of it in order to raise money to retain counsel, to seek alcohol counselling, to [page218] try to resolve the case and to review a transcript of one officer's testimony. These were important benefits to him that required time. What he cannot do is take these apparently beneficial delays, which he sought, and then turn them into a sword. In any event, none of this course of conduct could fairly be characterized as "diligent" pursuit of a trial and "trying everything he could to have his case heard as soon as possible", as the trial judge found.

Delay From December 2013

[139] Counsel has submitted, and the Crown acknowledges, that the delay resulting from Justice McCartney’s decision to stay the charges is institutional. While that is technically correct, in my view, the reasons behind that institutional delay must be considered.

[140] In Lahiry, Justice Code commented on delays that were “important benefits to the accused that required time.” He noted that the accused had made certain choices, and that “[w]hat [he] cannot do is take these apparently beneficial delays, which he sought, and then turn them into a sword”. He noted that the accused’s conduct in that case could not “fairly be characterized as diligent.”

[141] The stay in this proceeding ended as of April 17, 2015. The Applicant alleges that all delay since then to the date of trial is institutional. I do not agree. This matter could have proceeded as of that date, but for the 2015 Kokopenace application, which proceeded following the Supreme Court of Canada ruling in Kokopenace. It was the Applicant’s decision to challenge the 2015 roll which has resulted in this case being heard in September.

[142] The delay alleged in the commencement of the trial in this case was precipitated by the challenge to the 2014 and the 2015 jury roll. That was a decision made by the Applicant who must be assumed to have considered that the consequences of a decision in his favour could, as it did, have resulted in significant delay. In R. v. Faulkner, 2013 ONSC 2373, Justice Code, in addressing an issue with respect to delay resulting from the bringing of a certiorari motion, stated (at para. 52):

[52] There is a consistent body of case law holding that delay, while a defence motion seeking relief in the nature of certiorari is pending, is delay caused by “actions of the accused.”

[143] He continued at para. 58:

[58] There is a strong line of binding authority holding that delay caused by a third party records Motion is defence delay and it is certainly not delay attributable to the Crown. This line of authority supports the Crown’s position, if appointed counsel for the records Motion was actually Faulkner’s counsel.

[144] I consider that to be analogous to the circumstances of this case. This case was scheduled to be heard originally in April 2014. It is the actions of the Accused from that date to April 2015 which caused the delay. That cannot be attributed to the Crown, or the state.

PREJUDICE

[145] In commenting on the factor of prejudice in R. v. Godin, supra, the Court stated at para. 30:

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

[146] In R. v. Faulkner, supra, Justice Code stated:

[117] All of the various divisions within the Court on the issue of proof of prejudice, and the relevance and meaning of prejudice in the s. 11(b) context, were resolved in the Smith, Askov and Morin trilogy by a classic Canadian compromise. It was held that prejudice could be inferred, without any direct evidence of the subjective effects of the delay on the individual accused, but only in those cases where there was “a very long and unreasonable delay”, that is, where the delay was “substantially longer than can be justified on any acceptable basis”. In other words, the inference of prejudice was linked to the reasons for delay such that unreasonable and unjustified delays over long periods would infer prejudice. Otherwise, the accused would have to prove “that there has been unusual prejudice by reason of special circumstances”. See: R. v. Smith, supra at p. 111; R. v. Askov et al, supra at pp. 482-4; R. v. Morin, supra at pp. 23-4.

[118] Related to the debate about how to prove prejudice, and whether it could simply be assumed, was the question of whether prejudice to s. 11(b) interests could arise from delays caused by the accused’s own actions or from delays that were necessary and justified. In R. v. Conway, supra at pp. 306 and 308, one of the Court’s early s. 11(b) cases decided prior to the Smith, Askov, Morin trilogy, the majority of the Court addressed this issue and stated:

[1] Certainly, the prejudice suffered by the accused is an important consideration. While some degree of impairment may necessarily result from the mere passage of time, in my view, greater weight in the over-all assessment of reasonableness should attach to impairment resulting from delays not attributable to the person charged.

[2] …

[3] Some elements relevant to the assessment can best be established by the person charged. For instance, if prejudice is an issue, then the person charged is best suited to establish that element. As remarked earlier, prejudice resulting from delay requested, caused or consented to by the person charged may be weighed differently from prejudice resulting from delay originating elsewhere. [Emphasis added.]

[121] The common sense doctrinal principle that emerges from the above line of binding authority is that prejudice is linked to the reasons for delay. All delay causes prejudice in a broad general sense but the legally relevant form of prejudice, that carries real weight in the s. 11(b) analysis, is prejudice caused by unreasonable and unjustified periods of delay. Prejudice resulting from the accused’s own actions carries little or no weight and prejudice resulting from the inherent needs of the case carries neutral weight. In other words, when the delay is caused by the accused or when the delay is required by the inherent needs of the case, these reasons can “justify” or “excuse” any resulting prejudice as Cory J. and Sopinka J. put it in Askov and in Morin.

[147] In considering the issue of prejudice, I note that the Applicant relies only on inferred prejudice. The Accused’s rights to liberty and security of the person can be inferred from the length of time spent in custody awaiting trial, even taking into consideration the time spent on charges/convictions while released on conditions.

[148] As Justice Code noted in his reference to Conway, prejudice resulting from delay attributed to the person charged, as I have done in this case, may be weighed differently from prejudice resulting from delay originating elsewhere.

[149] I have further considered in the factor of prejudice inferred from the time in custody, that no application for release on bail was ever made. I further note that he was returned to custody after being released by Justice McCartney following the stay in 2015.

[150] There is no allegation of actual prejudice of the Accused’s right to make full answer and defence as a result of the delay.

[151] I reference again the comments of Code J. in Lahiry where he stated at para. 9:

[9] At the end of assessing these four factors, the court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown. The court should also arrive at some assessment as to the strength or weakness of the claim to prejudice. It is only unreasonable periods of delay, causing prejudice, which s. 11(b) protects against. As noted above, these factors must then be balanced against the societal interest in a trial on the merits. [My emphasis added.]

[152] The only unreasonable delay alleged in this case is the time after the decision of McCartney J. As I previously noted, I do not consider that delay to be unreasonable in the circumstances of this case.

BALANCING

[153] In balancing the factors in this case, in spite of the lengthy delay overall, and the delay in Phase II of the Superior Court, as I have found that most of the delay can be attributed to the Applicant, and the choices he made as to counsel and the bringing of motions which, if successful, should have anticipated lengthy delay, I do not place significant weight on that factor.

[154] For similar reasons, as prejudice is linked to the reasons for the delay, I do not place significant weight on the factor of prejudice to the Accused’s liberty and security interests.

[155] The Accused’s interests relating to liberty, security of the person and fair trial must be balanced against the societal interest in a trial on the merits. In the balancing process, I note the charges against the Accused are very serious. However, that can only be one of the factors to consider. I do not, however, overlook the fact that the charge here is murder, and there is a societal interest in the trial proceeding, including the right of those affected as family.

[156] In the balancing process, I have considered that in the overall delay, the only unreasonable delay relied on is in Phase II of Superior Court. As I have indicated, even if I accept the Applicant’s argued delay of 21 months, it is attributable to the choice – not the fault – of the Applicant in bringing a motion seeking a remedy which would, if granted, unnecessarily delay the trial.

[157] In R. v. Kporwodu, supra , the Ontario Court of Appeal dealt with the situation where delay from charges against the accused to the estimated date of verdict were 55 and 42 months respectively. The Court also discussed the factors of liberty interest and security interest.

[165] As the Supreme Court of Canada affirmed in R. v. Rahey, supra, at p. 605 S.C.R., p. 300 C.C.C., an individual's liberty interests can be impaired by restrictions on their free movement that are imposed while the individual is released on bail.

[172] In R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, 58 O.R. (2d) 543, [1986] S.C.J. No. 39, 26 C.C.C. (3d) 481, at p. 868 S.C.R., p. 581 C.C.C., Lamer J. (as he then was) adopted the following description of what is encompassed by the phrase "security of the person" in the context of s. 11(b): "It encompasses a protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation". Security of the person recognizes the stigmatization, loss of privacy, and stress and anxiety created by criminal proceedings. (See Morin, supra, at p. 786 S.C.R., 12 C.C.C.) As well, an individual's security interest can be infringed by any state action that has a "serious and profound effect on a person's psychological integrity", including state interference with a person's familial relations. (See New Brunswick (Ministry of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, at paras. 60-61.)

[158] In R. v. Kporwodu, the Court of Appeal referred to the trial judge’s reasoning on balancing factors as follows:

[186] The trial judge described the legal principles applicable to the balancing exercise in his stay ruling as follows:

No one factor is determinative. Rather, all of the factors must be balanced in the circumstances of the case, having regard to the interests s. 11(b) of the Charter is designed to protect. The test is not one of balancing the societal interest in a trial on the merits, particularly where the charge is a serious one such as murder, against the prejudice to the defendant. The seriousness of the charge is one circumstance that informs the Court's consideration of each, and all, of the enumerated factors. The seriousness of the charge is not a factor in and of itself. See R. v. Sharma (1992), 1992 90 (SCC), 71 C.C.C. (3d) 184 at 196 (S.C.C.). The general approach to a determination of whether or not the right has been denied is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against the factors which either inevitably lead to delay or are otherwise the cause of delay. Some delay is inevitable. At some point, the delay becomes unreasonable. See R. v. Morin, supra, at 13 and R. v. Smith (1989), 1989 12 (SCC), 52 C.C.C. (3d) 97 at 105 (S.C.C.).

However, the Court should examine the various segments of time in order to determine the legal significance of the entire delay. This approach is necessary to, and an integral part of the balancing of the interests protected by s. 11(b) of the Charter. If the overall delay is compatible with the values underlying this section, the fact that any given interval of time leading to the total delay is excessive, when viewed in isolation, is of no consequence to this application.

[159] In R. v. Atkinson, 1991 7113 (ON CA), [1991] O.J. No. 113, 5 O.R. (3d) 301, the Court of Appeal stated:

[42] Askov makes it clear that the nature of the case and the inherent time requirements of it have to be taken into account in the determination of whether an accused has been brought to trial within a reasonable time. It seems to me to be almost axiomatic that a longer period of delay will be reasonable in a complex fraud or in a murder case which requires the commitment of substantial preparation time, court time and supporting resources than will be required for a simpler shorter case.

[43] I do not think that in Askov the Supreme Court of Canada purported to set out solutions for all delay problems in all criminal courts, or in relation to all criminal trials. While the general principles by which the constitutional right to trial within a reasonable time are to be judged are set out in R. v. Askov, regard must be had to what was involved in that case.

[160] I have also considered several other cases where very lengthy delays have not been found to be unreasonable, and in breach of s. 11(b) Charter rights.

[161] In R. v. Tran, supra, the Court of Appeal dealt with an appeal by the Crown from a stay of proceedings due to unreasonable delay. At para. 63, although commenting on delay in the Ontario Court, the Court of Appeal noted that the Morin guideline “is just that: a guideline, not a limitation period. Durations of several months can be justified by the presence or absence of prejudice.”

[162] In R. v. Austin, supra, the Court considered a delay of approximately 25 months from the time of arrest to the scheduled trial date. At para. 47, the Court noted that “the guideline periods do not start to run until after inherent time requirements of a case have elapsed.” At paras. 56 and 57, the Court stated:

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

[57] In R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), aff’d 1997 331 (SCC), [1997] 3 S.C.R. 700, Doherty J.A. stated at p. 345:

I can see nothing in the language of s. 11(b) which suggests any right to have one’s trial proceed according to a constitutionally mandated timetable. Section 11(b) creates one right – the right to be tried within a reasonable time. As long as the entire time period in issue cannot be said to be unreasonable when tested against the principles pronounced in R. v. Morin…, there is no violation of s. 11(b). [Emphasis added, citations omitted.]

[163] In R. v. Faulkner, supra, Justice Code stated:

[129] I am satisfied that Faulkner has not established a violation of his s. 11(b) Charter rights. Although the total delay of four years and six months is unusual, there was very little unreasonable or unjustified delay in this case. Furthermore, the prejudice that Faulkner experienced was mainly caused by his own actions and by the needs of the case, given the way in which he and his appointed counsel chose to conduct it. This is simply not legally relevant prejudice, in the s. 11(b) context, and it must be “overlooked” as La Forest J. put it in Rahey.

[130] In conclusion, this case joins a long line of other cases where very lengthy total delays, before reaching trial, have not resulted in a violation of s. 11(b) of the Charter. For example: in R. v. Conway, supra, a total delay of five years and two months was found to be reasonable; in R. v. Horgan, supra, a total delay of five years at the time of the s. 11(b) Motion, and seven years by the end of the trial, was found to be reasonable; in R. v. White et al, supra, a total delay of six years and nine months was found to be reasonable; in R. v. Cornacchia, supra, a total delay of six years was found to be reasonable; in R. v. Allen, supra, a total delay of almost four years was found to be reasonable; in R. v. Schertzer et al, supra, a total delay of four years and eight months was found to be reasonable; and in R. v. Qureshi et al (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), a total delay of four years and three months was found to be reasonable.

[131] The common thread running through all these cases, like the case at bar, is that much of the delay was caused by actions of the accused and/or much of the delay was due to lengthy periods of inherent time requirements that were driven by the circumstances of the particular case. These kinds of delays are not unreasonable or unjustified, in the s. 11(b) sense, because they are either sought by the accused for his own benefit or they are necessary, in light of the nature of the case and the way it is being conducted.

[164] I particularly note the reasons of Justice Code. While the overall delay in this case is lengthy, the period of any unreasonable delay is not. Considering the nature of the delay, I am of the view that society’s interest outweighs the Applicant’s interest under s. 11(b). This is one of those cases where while s. 11(b) is meant to be a shield, the courts have recognized that it can be distorted to the point that it is used as a sword.

[165] For the above reasons, this Application is dismissed.

___”original signed by”

Mr. Justice T. A. Platana

Released: October 2, 2015

CITATION: R. v. Wabason, 2015 ONSC 6132

COURT FILE NO.: CR-11-0142

DATE: 2015-10-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen,

Respondent

• and -

Shaldon Wabason,

Applicant/Defendant

REASONS FOR JUDGMENT ON

SECTION 11(B) CHARTER APPLICATION

Platana J.

Released: October 2, 2015

/mls