COURT FILE NO.: CR-14-0008-MO

DATE: 2015-12-16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. R. Gosman, Agent - Public Prosecution Service of Canada, Respondent

Respondent

• and -

BRENT CADEAU

Mr. L. Kinahan, for the Defence, Applicant.

Applicant

HEARD: October 20, 2015,

at Kenora, Ontario

Madam Justice H.M. Pierce

Reasons on Application for Stay of Proceedings

Introduction

[1] In 2011, the applicant, Brent Cadeau, was employed in Northwestern Ontario as a Detective Sergeant with the Nishnawbe-Aski Police Service. Following an investigation that began ten months earlier, he was charged on December 9, 2011, with four counts of trafficking in oxycodone contrary to s. 5(1) of the Controlled Drugs and Substances Act. By the time the indictment was signed in March, 2014, three counts remained. The applicant was released on a promise to appear, with a condition that he remain in northern Ontario. This term of release was varied when he retained counsel in Winnipeg.

[2] Mr. Cadeau applies for a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms, arguing that his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter has been breached. As of the date the application was heard, October 20, 2015, the charges had been outstanding for more than 45 months. Although the disclosure made by the Crown was voluminous, the Crown agrees that this is not a complex case; counsel estimates that five days will be required for trial. By virtue of a scheduling order, this application was ordered heard sixty days prior to trial.

[3] Apart from the prejudice that the applicant says should be inferred by the delay in getting to trial, Mr. Cadeau submits that he has suffered actual prejudice as a result of the delay.

[4] The Crown concedes that the time under consideration is about 46 months, a delay that warrants consideration by the court to determine whether Mr. Cadeau’s constitutional right to be tried within a reasonable period of time has been breached. However, the Crown argues that this duration is not unreasonable when closely examined, in that the applicant has either waived the delay or been the reason for the delay. It is a unique feature of this case that Mr. Kinahan is the third counsel retained to represent the applicant.

Principles of Law

[5] Section 11(b) of the Charter of Rights and Freedoms guarantees the right to be tried within a reasonable time. The Supreme Court of Canada developed the principles underpinning this constitutional guarantee in R. v. Askov, 1990 45 (SCC), [1990] 59 C.C.C. (3d) 449 (S.C.C.) and subsequently in R. v. Morin, 1992 89 (SCC), [1992] 71 C.C.C. (3d) 1 (S.C.C.).

[6] In Askov, the court recognized that the guarantee in s. 11(b) has several purposes: for accused persons, to protect their rights to be tried within a reasonable time; for society, to ensure that those who are charged are dealt with according to law, and that those on trial be treated fairly, with minimal prejudice: para. 44.

[7] The court in Askov recognized that it is difficult for persons charged and their families to await resolution of the charges: para. 43. As well, the court observed that delays in trials affect witnesses: they may become unwell or unavailable; their memories may erode; and the stress of a pending trial may also weigh on them: para. 45.

[8] In Morin, the Supreme Court emphasized that the primary purpose of s. 11(b) is the protection of an accused person’s rights, and that the interests of society are secondary.

[9] In Morin, at para. 31, the Supreme Court identified the following factors for consideration under a s. 11(b) Charter application:

1. the length of the delay;

2. waiver of delay;

3. the reasons for the delay, including

(a) inherent time requirements for the case;

(b) actions of the accused;

(c) actions of the Crown;

(d) limits on institutional resources,

(e) other reasons for delay; and,

4. prejudice to the accused.

[10] As the court noted at para. 32 of Morin, the court is required to balance these factors in assessing whether the delay is unreasonable. The onus is on the applicant to establish a breach of his right to trial within a reasonable time.

[11] In this case, the Crown argues that certain time periods have been waived by the applicant. In Morin, the court subtracted from any delay time periods said to be waived by the accused in order to examine whether the remaining times were reasonable: para 37. It is therefore useful to consider the nature of waiver in this context.

[12] Waiver of s. 11(b) rights by an accused person must be clear and unequivocal, made in the knowledge of the rights and the effect that his or her waiver will have on that right. Waiver can be explicit or implicit, but if implicit, it must not be merely inadvertent. As Cory J. stated in Askov at para. 65,

…there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee.

See also Morin, para. 38.

[13] The Supreme Court of Canada in R. v. Smith, (1989), 1989 12 (SCC), 52 C.C.C. (3d) 97 at 109 held that agreement to a future court date will, in most circumstances, be considered a waiver, observing:

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

[14] The court in Morin also commented on the nature of inherent time requirements, holding that each case contained inherent time requirements; the more complex the case, the longer it will take counsel to prepare for and conduct the trial. Common inherent requirements include retaining counsel, bail hearings, police and administrative paperwork, disclosure, whether a preliminary inquiry is held, and if so, whether further pre-trial meetings and added court dates will be required: paras. 41 – 43.

[15] In considering actions of the accused when evaluating delay, the court described actions which are voluntarily undertaken. Examples include change of venue motions, attacks on wiretap packets, adjournments that do not amount to waiver, attacks on search warrants, changes of solicitor, re-election, etc.: Morin, paras. 44 – 45.

[16] Actions of the Crown may also be considered for the purposes of considering delay. The court in Morin cites examples such as adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc.: para. 46.

[17] Finally, limitations on institutional resources are another potential reason for delay. At para. 47 of Morin, the court noted that this period runs from the time the parties are ready for trial but the system cannot accommodate them. At para. 55, the court held that acceptable institutional delay in the provincial court ranged between 8 – 10 months and a further 6 – 8 months after committal for trial.

[18] The court in Morin also held that there may be other source of delay; for example, actions of the trial judge: para. 59.

[19] Finally, prejudice to the accused is the last factor to be considered in a s. 11(b) analysis. The purpose of s. 11(b) is to protect an accused from restrictions of his right to life, liberty, security of the person, and the right to make full answer and defence. As well, s. 11(b) serves to expedite trials and minimize prejudice. Prejudice may be inferred from long delay or it may be specifically proven: Morin, paras. 61 – 63.

Discussion

[20] It is not contested that a delay of 45 months to the hearing of the application bears scrutiny. I am mindful that, by reserving to give reasons on the application, the time is further extended. Pending the delivery of reasons on the application, the case is endorsed to be spoken to at Assignment Court on January 25, 2016.

The applicant submits that the delay involved in this case is as follows:

(a) intake time in the Ontario Court of Justice: February 10, 2012: 2 months;

(b) Crown and institutional delays in the Ontario Court: February 10, 2012 to March 13, 2013; and August 21, 2013 to February 6, 2014: 23 months and 24 days;

(c) Crown and institutional delay in the Superior Court of Justice: February 6, 2014 to April 17, 2014; June 9, 2014 to December 8, 2014; March 30, 2015 to May 11, 2015; and May 11, 2015 to August 6, 2015: 12 months and 18 days.

[21] Thus, the applicant submits that the minimum Crown and institutional delay in this case is 36 months and 12 days.

[22] The applicant submits that the total time waived is 53 days. He also submits that no actions of the defence delayed the case and that disclosure requests were timely and persistent.

[23] By contrast, the applicant says that the Crown’s failure to provide complete disclosure before the date for the preliminary inquiry was set led to an under-estimate about what time would be required. The defence says the Crown should have provided an accurate estimate, given its knowledge of the case. Further, the applicant submits that had the preliminary inquiry been completed in a timely way, the case could have been completed before defence counsel, Mr. Gibson, was elevated to the bench. The applicant argues that disclosure continued until as late as May of 2015, some three years and six months after the charges were laid. The applicant contends that the Crown should have simply supplied second copies of the material at the initial request and had it done so, much of the time lost between June 9 and December 8, 2014, could have been avoided.

[24] In this case, two significant sources of delay arise. The first is attributable to the applicant’s difficulties with his counsel. His first counsel was appointed to the bench before the preliminary inquiry could be completed. This necessitated retaining second counsel, which Mr. Cadeau did promptly. His second counsel, Mr. Gunn, required time to brief himself and accommodate his diary to Mr. Cadeau’s case. Unfortunately, Mr. Gunn felt he had lost contact with Mr. Cadeau and secured an order removing him as solicitor of record. Mr. Kinahan was then retained. Naturally, he, too, required time to become familiar with the file and to accommodate his diary to Mr. Cadeau’s case.

[25] The second major issue in this case was the time required for disclosure. Although characterized as a straightforward case, the Crown produced voluminous disclosure that defence counsel was required to review and absorb in order to defend the case. This exercise would have been time consuming enough, but unfortunately, after three counsel and the applicant reviewed the materials, the large file became disorganized and certain disclosure materials were mislaid. By the time Mr. Kinahan realized that Mr. Gunn did not have portions of the disclosure thought to be missing, and asked the Crown to produce a duplicate set of disclosure, together with some new disclosure, much time was lost. The defence submits that the Crown’s failure to make timely disclosure led to unreasonable delay.

[26] Against that backdrop, I will review the time required to try this case and consider prejudice to the accused.

[27] The investigation of these charges began in February or March of 2011 but the applicant wasn’t charged with four counts of trafficking until December 9, 2011. By the time the indictment was signed, there were three counts remaining. From the date of arrest until this application was heard, more than 45 months had elapsed. Pending release of this decision, the case was set to Assignment Court on January 26, 2016, to be spoken to. Depending upon the outcome of the application, a trial date could then be set.

[28] Mr. Cadeau was released on a promise to appear to await his first appearance in court on January 10, 2012. This amounts to 32 days of delay which is inherent to the case. In this time, the accused retained his first counsel, Mr. Gibson.

[29] On January 10, 2012, Mr. Gibson appeared and filed a designation of counsel and asked that the case be remanded to February 14, 2012. The Crown had not yet received a disclosure request from the defence but indicated that there is a “very large” disclosure package. The applicant submits that the Crown should have had disclosure ready at the first appearance. I do not agree. Given the size of the disclosure package, the fact that no request for disclosure had been made, and further, that the adjournment was made at the request of the defence, I find that a further 35 days is attributable to inherent delay.

[30] On February 14, 2012, Mr. Gibson appeared by an agent who asked that the case be adjourned to March 20, 2012, for plea or to set a trial date. The subject of disclosure was not raised. This resulted in a further 35 days of delay which is inherent.

[31] On March 20, 2012, Mr. Gibson was present in court. The Crown proposed and the defence agreed that the matter adjourn to May 22, 2012, in order that the Crown could make a request for follow-up disclosure and unseal some warrants. The defence concurred that disclosure was voluminous. The matter was marked peremptory to enter a plea or set a trial date. This amounted to 63 days of inherent delay.

[32] By May 22, 2012, because of a conflict a new Crown was assigned to the file. As well, the new prosecutor had just received four more volumes of disclosure that had not yet been disclosed to the defence. Despite the matter being peremptory, the Crown requested a further adjournment to June 19, 2012, to enable it to make the additional disclosure before setting a date for preliminary inquiry. Mr. Gibson was not present in court but supplied his dates. The case was adjourned to June 19, 2012, peremptory, a delay of 28 days, which is attributable to the Crown.

[33] On June 19, 2012, both counsel were present. Preliminary inquiry was set for one day on September 27, 2012, at the request of the defence who wished to hear from four witnesses. Additional disclosure was promised in the interim. Mr. Gibson indicated that more time might be required, depending upon the outcome of his review of additional disclosure. The applicant submits that the delay arising out of institutional resources was not unreasonable. This amounted to 100 days of waiver by consent.

[34] On September 27, 2012, the preliminary inquiry began but was not completed. Only one witness of an expected four testified and was cross-examined. This required one day; the time expended was neutral.

[35] The applicant submits that the failure to complete the preliminary inquiry was attributable to defence counsel’s inability to predict the length of time required without complete disclosure. Respectfully, there is no evidence that Mr. Gibson complained about this. He indicated that as a result of the evidence of the witness who did testify, there were “a couple of police officers” that he wanted to hear from in addition to the other witnesses identified.

[36] The defence submits that the interval between September 27, 2012, and the continuation of the preliminary inquiry on March 13, 2013, was unreasonable, arguing that the court had only one day for continuation of the preliminary hearing on November 8, 2012. I do not agree. The bulk of that delay was attributable to Mr. Gibson’s calendar, for the reasons that follow.

[37] At the close of the day on September 27th, the court canvassed with counsel dates for continuation of the preliminary inquiry. Defence counsel estimated 1½ - 2 days would be required. The court had only one day, November 8, 2012, available. Neither the Crown nor the defence were available on that date. Mr. Gibson had no time available before the New Year and commencing January 8, 2013, was engaged in a two month jury trial. The court adjourned the case to October 23, 2012, to set a date for continuation of the preliminary inquiry in consultation with the trial coordinator. This amounted to 26 days of institutional delay.

[38] On October 23, 2012, both counsel were represented by agents who appeared before Mr. Justice Bishop to set a date for the continuation of the preliminary inquiry. There was no indication of the Crown’s availability. Mr. Gibson had two dates available in December. His remaining dates were in the New Year. By contrast, the court had three days available in November, two in December, and two in late January, none of which were available to Mr. Gibson. In 2013, Mr. Gibson’s first available dates started in March. Because the March calendar had not been released, Justice Bishop adjourned the case to Justice Hoshizaki on October 26, 2012, to set a date for the continuation of the preliminary inquiry. In doing so, Justice Bishop cautioned,

…You know any delay is going to be attributed to the accused because there are lots of dates between now and the rest of this year. And if he can’t appear because his lawyer is in some other court, then that delay will be attributed. And I’m only concerned because the [the allegations] go back to September of ’09 and February of ’10.

[39] The time elapsed was three days of waived time.

[40] On October 26, 2012, both counsel were represented by the same agent who presented dates in March and April, 2013 for the continuation of the preliminary inquiry. The court set the case to March 13th and 14th, 2013. The duration was 122 days once the “bring forward” date below is considered. Because Mr. Gibson was not available in January or February, this amounts to waiver by the defence.

[41] Mr. Gibson was appointed to the Ontario Court of Justice on January 24, 2013, and could therefore not continue with the case. The matter was brought forward to March 5, 2013, to be re-scheduled. Mr. Cadeau retained Mr. Gunn who appeared by agent at that time. At the request of the defence, the case was adjourned to March 21, 2013, to re-schedule the continuation of the preliminary inquiry. Sixteen days elapsed. The intervening appointment of Mr. Gibson was out of the accused’s control. In my view, it amounted to neutral time.

[42] On March 21, 2013, both counsel were represented by the same agent. Defence counsel requested that the case be adjourned to August 21 – 22, 2013, for continuation of the preliminary inquiry. Mr. Cadeau testified that he was not content with these dates but he knew that his new counsel was busy and he needed some time to review the voluminous disclosure. The court assigned these dates as well as August 23 if required. This amounted to 153 days, waived by consent.

[43] On June 21, 2013, Mr. Cadeau’s terms of bail were amended on consent, to permit him to leave the province.

[44] On August 21, 2013, four witnesses testified and a re-election to proceed as a trial was made with Mr. Cadeau’s consent. This comprised one day of neutral time.

[45] On August 22, 2013, because the case was converted from a preliminary inquiry to a trial, the Crown wished to call further evidence including a final expert report. The defence considered calling evidence. Counsel agreed that the case should be adjourned to schedule two more days for completion. Counsel for the defence submitted that it was preferable not to split up the Crown’s two witnesses who would testify about technological matters. Time elapsed: one day of neutral time.

[46] The applicant argues that the institutional delay involved between August 21, 2013, and February 6, 2014, was unreasonable. He says that despite a multi-day hearing being required, in view of the delay, the Ontario Court should have made more dates available. However, no objection appears on the record.

[47] On August 22, 2013, with the consent of counsel, the case was adjourned to September 23, 2013, to set a date for the continuation of trial. Time elapsed: 32 days, waived by consent of counsel.

[48] On September 23, 2013, each counsel was represented by an agent. Trial dates had previously been canvassed. The case was adjourned on consent to February 6th and 7th, 2014, for continuation of trial. Time elapsed: 136 days, waived by consent.

[49] On February 6, 2014, defence counsel advised that he did not receive the Crown’s revised expert report until January 17, 2014, instead of in the fall as anticipated, and that the new report affected the way the defence intended to proceed. The late disclosure would have necessitated an adjournment of the trial. By way of compromise, Mr. Gunn advised the court that the accused wished to re-elect, to which the Crown consented, and the defence further consented to a committal for trial in the Superior Court. The re-election was made on Mr. Cadeau’s written instructions. He re-elected and was committed for trial on consent. An indictment was filed in the Superior Court on March 28, 2014, and the matter returned to court on April 7, 2014. Time elapsed: 60 days which is attributable to the Crown for providing late disclosure.

[50] On April 7, 2014, Mr. Gunn applied to be removed as counsel for Mr. Cadeau on the grounds that he had lost contact with his client. Mr. Cadeau testified that he gave his change of address and contact information to Mr. Gunn when he moved from Sioux Lookout to Dorion but this new information was not noted. As well, some courier communications from his counsel could not be delivered to his residential address.

[51] Mr. Cadeau testified that he was waiting for Mr. Gunn’s direction and apparently did not take timely steps to contact Mr. Gunn. He agreed in cross-examination that he had been to Mr. Gunn’s office and knew how to reach him, and as of January 14, 2014, Mr. Gunn had Mr. Cadeau’s contact information. Mr. Cadeau advised the court that Mr. Gunn should be removed as counsel, indicating he was in the process of retaining new counsel. The case was adjourned to Assignment Court on June 9, 2014, to permit Mr. Cadeau to retain new counsel. The accused submits this time, 63 days, is waived. In my view, in accordance with the example cited above in Morin, this represents the actions of the applicant.

[52] The difficulty with disclosure began about this time. Mr. Kinahan asked Mr. Gunn to forward Mr. Cadeau’s disclosure immediately after he was retained. By May 27th, Mr. Kinahan had begun his review of the two boxes of disclosure which he described as a mass of paper. He wrote to Gunn to request volume 3, which was missing among the seven bound volumes of disclosure.

[53] On May 27, 2014, Mr. Kinahan also wrote to the Crown to request another copy of volume 3 and of Officer McCallum’s notes.

[54] Later that day, Mr. Kinahan wrote again to the Crown advising that in view of the difficulty in reviewing materials that were not bound,

I am just advising you now that, over and above what was requested this morning, I may be requesting all other materials provided thus far that is not found in Volumes 1 – 4 in the first set of disclosure and volumes 1 – 4 in the second set of disclosure.

[55] Mr. Kinahan also advised that he had the transcript from the first preliminary inquiry date but had not been given the transcripts for the subsequent dates. He asked the Crown for the dates and contact information for the court reporter.

[56] Mr. Gosman replied on May 27th, saying, “Let me know if Mr. Gunn can solve this for you. If not, I’ll send a replacement vol 4 [sic] and another set of McCallum notes.”

[57] Mr. Kinahan replied that day, acknowledging Mr. Gosman and responding, “I will wait to see what I hear back from Mr. Gunn.”

[58] On May 30, 2014, Mr. Gunn advised Mr. Kinahan that he did not have volume three and that he recalled that Mr. Cadeau had taken it to review. Mr. Cadeau denied that he had any of the disclosure materials. Mr. Gunn suggested to Mr. Kinahan that he request a second volume three from the Crown.

[59] In court on June 9, 2014, both counsel are represented by agents. Mr. Kinahan asked to be shown as counsel of record. The defence concedes that the period from April 17 – June 9, 2014, when Mr. Cadeau was retaining counsel, was waived. Defence counsel was awaiting transcripts from the preliminary inquiry for review and indicated that he requested further disclosure from the Crown. As a result, the defence requested an adjournment of two months before setting a date for a pre-trial. The case was adjourned to August 25, 2014, on consent, a period of 77 days that was waived.

[60] On August 22, 2014, before the next court appearance, the Crown e-mailed defence counsel saying, “If you need anything by way of disclosure, let me know.” Apparently Mr. Kinahan did not immediately follow up.

[61] The applicant does not say that the Crown was stonewalling over the issue of disclosure, but contends that the Crown should have been more proactive. The defence argues that the Crown should have prepared a whole new disclosure package. At the same time, Mr. Kinahan admitted that he tries to avoid multiple disclosure requests because they become convoluted and represent an additional expense for the accused. Mr. Kinahan’s instructions to his agent on August 22, 2014, indicate that he made an oral request of the Crown for a duplicate volume 3 of the disclosure and the loose-leaf materials but he had not yet made a written request. He also indicated to his agent that he had now reviewed the transcripts from the preliminary inquiry.

[62] This criticism about the delay in Crown disclosure is misdirected for two reasons: first, the defence specifically advised the Crown that it would first explore the matter with Mr. Gunn. Apparently, the defence did not immediately advise the Crown of the outcome of that inquiry, received on May 30th nor immediately send a written request for a duplicate of volume 3 of the disclosure. Parenthetically, there is no complaint in the record by previous defence counsel that volume three of the disclosure was missing. Second, the defence did not ask for a whole new disclosure package. This hiatus constitutes 77 days, which amounts to waiver.

[63] On August 25, 2014, the case returned to Assignment Court to set a pretrial date. Both counsel were represented by agents. The agent for the defence asked for an adjournment, indicating that Mr. Kinahan was recently retained “and still trying to get a handle on the case and the disclosure.” He also indicated to the court that one volume of disclosure was missing. Mr. Kinahan’s instructions to his agent also flagged an issue about his client’s re-election that he wished to discuss with Mr. Cadeau. The case was further adjourned to September 22, 2014, a period of 28 days, waived by the accused.

[64] The case returned to court on September 22, 2014. Again, both counsel were represented by agents. The transcript of that appearance indicates only that the defence requested an adjournment to November 10, 2014.

[65] The record indicates that before that court appearance, Mr. Kinahan wrote to the Crown on September 19, 2014, requesting a duplicate copy of all disclosure provided to previous counsel as well as additional itemized disclosure. This appears to be Mr. Kinahans first written request for disclosure, notwithstanding the Crowns offer almost a month earlier. He acknowledged that this was a late request and given the size of the disclosure, he did not expect that the Crown could comply in short order. Mr. Kinahan’s letter states in part:

I realize that this is an unusual request but frankly the state of the file when I received it was such that 1 volume, being volume 3 is missing and the loose leaf paper that accompanied the materials is in such a state of disarray that it is like trying to put together a monstrous jigsaw puzzle with no template.

[66] Mr. Kinahan also requested an e-brief if one existed. This appears to be the first written request by Mr. Kinahan for duplicate disclosure since Mr. Gunn made him aware on May 30, 2014, that he did not have volume three and suggested that he contact the Crown for a duplicate copy, a hiatus of more than 3 ½ months.

[67] In any event, the time elapsed for this adjournment was 49 days, which was waived by the accused.

[68] The record indicates that, following Mr. Kinahans letter of September 19th, seeking duplicate and new disclosure, Detective Sergeant Duggan was assigned the file on October 14, 2014, with instructions to review the file and respond to Mr. Kinahans disclosure requests of September 19th. He did so, and reviewed the additional requests for disclosure with Mr. Gosman on October 17th. Officer Duggan was instructed to prepare a complete duplicate copy of the disclosure for Mr. Kinahan.

[69] Officer Duggan telephoned Mr. Kinahan`s office on October 21, 2014 and was advised that counsel would be returning to his office the following day. He left a message for Mr. Kinahan to contact him regarding the disclosure request of September 19th.

[70] When Officer Duggan did not hear from Mr. Kinahan by October 27th, he followed up with another telephone call. Mr. Kinahan spoke to the officer but as it was not a convenient time for Mr. Kinahan to talk about the file, the officer left his number.

[71] When Mr. Kinahan did not return his call, Officer Duggan called again on November 4th. Mr. Kinahan set an appointment for them to discuss the file the following day. Sometime prior to this conversation, the officer offered to travel from Kenora to southern Ontario to review the disclosure with Mr. Kinahan.

[72] Officer Duggan and Mr. Kinahan did review the file contents in detail by telephone on November 5th. The officer met with Mr. Gosman on November 13th to report on the file review, including new disclosure requested. Mr. Gosman sent the duplicate and additional disclosure by courier, arriving December 2, 2014.

[73] In the meantime, that matter returned to court on November 10, 2014. Counsel were again represented by agents. Mr. Kinahan’s agent asked to have the case adjourned to January 19, 2015, because of his concern about incomplete disclosure. He specifically waived Mr. Cadeau’s s. 11(b) rights. The agent for the Crown related that Mr. Gosman was frustrated with the slow pace of the proceeding and continuing requests for adjournments for the defence to sort through disclosure. The Crown objected to a two month adjournment sought by the defence.

[74] Mr. Kinahan`s agent read into the record the following portion of his instructions:

I received disclosure, however, it was in somewhat of a state of disarray. And Mr. Gosman and the case management officer and myself have been working on sorting out some of the issues. In that regard I`m expecting several replacement volumes to be delivered within the next several days. Over and above that issue there is also additional disclosure that has been ordered as well as [sic] that has never been previously ordered. As such, we are jointly requesting that this matter be adjourned one more time to allow for receipt, review of these materials and be in a position to set a judicial pretrial at the next appearance.

[75] The case was adjourned to December 8, 2014, to set a date for a pretrial. The elapsed time was 28 days, which time was specifically waived by the accused.

[76] The applicant submits that the institutional delay in the Superior Court of Justice has not been excessive, at the same time arguing in his factum that the delay between February 6, 2014, and April 17, 2014, is potentially questionable. As the indictment was not filed in the Superior Court until March 28, 2014, I conclude that the applicant meant to complain about these dates in 2015 and not 2014.

[77] The applicant also concedes in his factum that the Superior Court was able to accommodate a pretrial within one month and 28 days of setting the date and potentially a trial by October, 2015.

[78] On December 8, 2014, the case returned to court to set a pretrial date. Both counsel were represented by agents. Although the Crown was available for February 2nd, the defence was not. The defence concedes that the period February 2 – March 30, 2015, was waived by the defence due to counsel’s unavailability. The case was set for March 30, 2015 on consent. From December 8, 2014, to February 2, 2015, a period of 57 days of inherent delay and from February 3 – March 30, 2015, a period of 56 further days, waived by the accused.

[79] The pretrial held on March 30, 2015 was adjourned for the defence to seek further instructions from the accused concerning further re-election and to consider whether to bring an application for undue delay. The pretrial was adjourned to May 11, 2015, for continuation, an interval of 42 days, resulting from actions of the applicant.

[80] On May 13, 2015, the pretrial continued. The defence advised that it would bring an application for undue delay. This required 1 day of neutral time.

[81] The scheduling of the application date did not take place until June 11, 2015, because the assistant trial coordinator at Kenora had to seek dates for a Thunder Bay judge to hear the matter. In my view, this was an institutional delay of 29 days.

[82] On June 11, 2015, the hearing of the undue delay application was scheduled for October 20, 2015. The interval is 130 days of time attributable to the applicant. After argument of this application, decision was reserved.

Summary of Delays

[83] In this case, the delay to the hearing of this application was approximately 45 months or, approximately 1, 395 days (based on a 31-day month). Of that time, 784 days was waived by the applicant. There are a further 235 days of delay attributable to actions of the applicant as a result of changing counsel, clarifying instructions, and considering and bringing a delay application. As against these delays, there are approximately 20 days of neutral time, 222 days of inherent time and 55 days of institutional delay which counts against the Crown. Finally, 88 days of delay are attributable specifically to the Crown.

[84] The Morin guideline suggests between 8 – 10 months of institutional delay in the provincial courts and 6 – 8 months after committal for trial. In my view, most of the delay in this case results from either the actions of the applicant or waiver by the applicant’s counsel. The time remaining falls within the parameters set in Morin as a guideline to trial courts.

Prejudice to Accused

[85] The accused submits that he has suffered actual prejudice related to the delay. Examples of prejudice cited are that:

1. he has had his liberty interest curtailed, including his freedom of movement to leave the Province of Ontario;

2. he has experienced the stigma of the outstanding charges and the real potential for incarceration for 45 months, causing the applicant and his family stress and anxiety and diminishing their quality of life. The applicant’s wife, a serving member of the Ontario Provincial Police, feels the stigma of the charges most acutely;

3. he has suffered financial prejudice as a result of being suspended without pay, and has incurred substantial expense for repeated appearances in court;

4. in addition to living with the stigma of the charges, he has lived under a cloud of suspicion while the investigation was proceeding some ten months prior to the charges being laid; and

5. the passage of time has negatively affected his ability to recall events relevant to the charges, impairing his right to make full answer and defence.

[86] Morin sets out the principle that the longer the delay, that the more likely an inference of prejudice will be drawn. In this case, the applicant has cited specific instances of prejudice. To some degree, this prejudice is experienced by all persons who are accused: the stigma of accusation, the loss of income, the passage of time interfering with one’s ability to recall events. I accept that, for Mr. Cadeau, the prejudice is real. It is also regrettable. However, it is evident that much of the delay in this case is accounted for by having three senior defence counsel on the case who had busy calendars, and needed time to review the case to understand the issues. Further significant delay resulted from the loss of initial disclosure provided to counsel.

[87] Subsequently, the defence did not move effectively to follow-up on missing disclosure, or to advance additional requests for disclosure. Ultimately, the decision to bring a delay application led to further delay. The applicant is wholly entitled to assert his Charter rights in that regard, but the decision about how to advance his case falls to him.

[88] I am of the view that for the reasons expressed, the delay is not unreasonable, the application is dismissed. The trial of this case should be expedited.

_______“original signed by”

The Hon. Madam Justice H.M. Pierce

Released: December 16, 2015

COURT FILE NO.: CR-14-0008-MO

DATE: 2015-12-16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

BRENT CADEAU

Applicant

REASONS ON APPLICATION FOR STAY OF PROCEEDINGS

Pierce J.

Released: December 16, 2015

/cs