FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] This is an application by the accused, Michael Pottle, seeking to have the Indictment before the court stayed pursuant to s. 24(1) of the Charter of Rights and Freedoms. The applicant argues that his right to a trial within a reasonable period of time under s. 11(b) of the Charter has been infringed.

[2] For the reasons set out below, his application fails.

Factual Background

The Charges

[3] The applicant, Michael Pottle, and his co-accused, Richard Wayner, were committed to stand trial on the following charges:

• Sexual Assault (Two counts);

• Overcoming Resistance in the Commission of an Offence by Choking;

• Uttering Threats to Cause Death;

• Unlawful Confinement;

• Sexual Interference;

• Failure to Comply with Undertaking.

The Allegations

[4] On 2 August 2012, the complainant, C, then 14 years of age, met the applicant and Wayner after being invited out by her friend, J.S. The group ended up at the applicant’s residence where C was offered and consumed alcohol. She became intoxicated to the point that she was unable to walk. The applicant, Wayner and J.S. began to fondle her breasts and vagina over her clothing without her consent. In response, C punched Wayner in the face and kicked him in the groin area. At some point, C lost consciousness but awoke to find herself being dragged up the stairs by Wayner and J.S. At the same time, the applicant was attempting to pull down her pants. C alleged that she was taken into a bedroom where she was sexually assaulted by the applicant and Wayner, both of whom subjected her to forced vaginal and anal intercourse. Throughout this period, C resisted but was held by the throat and choked. The assaults lasted approximately 30 minutes after which all three males threatened to kill C if she informed on them.

[5] Afterwards, C was prevented from leaving and was taken to Wayner’s residence. Left alone in a bedroom whilst Wayner and J.S. left to purchase cigarettes, the complainant texted a friend and began to scream out of the window. When police arrived on scene they found the complainant in Wayner’s residence, crying. She was subsequently taken to the hospital.

[6] Upon examination, semen was found on the complainant’s breasts. DNA analysis could not exclude Pottle as the owner.

[7] On 20 August 2013, J.S. was convicted of the offences of Sexual Assault and Unlawful Confinement. The applicant and Wayner proceeded to trial.

The Legal Principles

[8] The principles that resolve the question of whether s. 11(b) of the Charter has been violated are well settled. In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, the Supreme Court of Canada outlined the following factors to be considered in deciding whether there was a breach of s. 11(b):

(1) the length of the delay;

(2) any waiver of time periods by the accused;

(3) the reasons for the delay, including:

a. the inherent time requirements of the case,

b. the conduct of the accused or delays attributable to the accused,

c. the conduct of the Crown or delays attributable to the Crown,

d. systemic or institutional delays, and

e. any other reasons for delay; and

(4) any prejudice to the accused.

[9] Any evaluation of s. 11(b) involves balancing the rights of the accused to fair trial in a timely manner against society’s rights to ensure that those persons accused of criminal acts are tried in the justice system: R. v. Morin, at pp. 12-13, 29-30; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 450-451, 474-477; R. v. MacDougall, [1998] S.C.R. 45, at paras. 30-31; R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), at para. 9.

[10] If a Charter violation is found to exist, the only remedy available is a stay of proceedings: R. v. Askov; R. v. Tran, 2012 ONCA 18.

THE LENGTH OF THE DELAY

1. The Length of the Delay and Waiver by the Accused

[11] The length of the delay to be evaluated for the purposes of the first factor is the total amount of time from the date of charge until completion of trial. If that delay is unexceptional, no further inquiry need be undertaken: R. v. Morin, at pp. 14-15; R. v. Antoine (1983), 1983 CanLII 1743 (ON CA), 5 C.C.C. (3d) 97 (Ont. C.A.); R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.).

[12] In this case, there is no dispute amongst the parties that the total delay of 43 months from the date of charge to the commencement of the trial is of sufficient length to warrant an evaluation of the factors enunciated in Morin.

[13] Delay periods that were waived by the accused are deducted from the total period to be evaluated: R. v. Askov, at pp. 480-481; R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at pp. 316-318; R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120, at p. 109; R. v. Morin, at pp. 15-16; R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814, at pp. 191-192; R. v. H.(L.T.), 2008 SCC 49, at paras. 7, 40-43, 96-98.

[14] Once again, in this case, there is agreement on this point: there was no explicit waiver by the applicant of any of the time periods in this case.

[15] The history of this case is peppered with unusual events discussed in detail below.

2. Chronology of the Case

[16] The following is a recitation of the timeline of this case:

i. The Intake Period: 3 August 2012 to 16 January 2013

[17] 3 August 2012 to 28 August 2012: The Bail Hearing

The accused was arrested on 3 August 2012 and appeared in court the next day. The matter was adjourned and, on 8 August 2016, a bail hearing commenced but ended up being struck when the court was informed that the defence wished to call witnesses. The hearing was rescheduled for 16 August 2016, when the accused was released on a $5000 surety bail with conditions that included house arrest with exceptions. He was remanded to attend the set date court at College Park on 28 August 2016.

[18] 28 August 2012 to 18 October 2012

The accused failed to attend court on 28 August 2012 and the matter was adjourned to 4 September 2012. On that date, initial disclosure was provided to the defence and the matter went to 20 September 2012. There was a further adjournment to 18 October 2012 for the Crown to provide additional disclosure.

[19] 18 October 2012 to 15 November 2012

On 18 October 2012, the case was further remanded to 15 November 2012. The reason for the adjournment is unclear as the transcript for this date has not been provided to the court. On 15 November 2012, the applicant’s counsel attended and requested that the matter go over again, indicating that a further review of disclosure was necessary before a “meaningful pre-trial” could take place. As a result, the matter was remanded to 6 December 2012.

[20] 6 December 2012 to 16 January 2013: The Pre-Trial

A judicial pre-trial was set for 16 January 2013, which, according to the agent appearing for the applicant, was “the first date that worked based on all counsel’s availability”. The pre-trial was conducted on that date. Both parties agreed to set a two-day preliminary inquiry to take place on 21 and 22 August 2013. In the intervening period, the accused attended court to vary his bail with the consent of the Crown.

Calculation of Delay (5 months 3 days)

[21] In assessing time periods, it is important to remember that the courts have long rejected the notion that s. 11(b) imposes a judicial timetable on the criminal justice system: R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), aff’d 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700. The duty of the court is to assess delay applications in a flexible manner which balances the accused’s constitutional rights against the right of society to ensure persons charged with an offence are brought to trial. In other words, s. 11(b) evaluations are not mechanical algebraic computations involving a rigid mathematical formula: R. v. Morin, at p. 13; R. v. MacMunn, 2008 ONCA 520, at paras. 26, 45; R. v. Allen, at p. 345; R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 (Ont. C.A.), at para. 86; R. v. Kporwodu (2005), 2005 CanLII 11389 (ON CA), 75 OR (3d) 190 (Ont. C.A.), at paras. 184-197; R. v. Bennett (1991), 1991 CanLII 2701 (ON CA), 64 C.C.C. (3d) 449 (Ont. C.A.), at p. 467, aff’d 1992 CanLII 61 (SCC), [1992] 2 S.C.R. 168; R. v. Qureshi, at para. 13; R. v. G.(C.R.) (2005), 2005 CanLII 32192 (ON CA), 206 C.C.C. (3d) 262 (Ont. C.A.), at paras. 15-20.

[22] The law recognises the importance of the initial intake period, which requires the creation and receipt of the Crown brief, the retainer of counsel by the accused, the preparation and delivery of disclosure to the defence, and the holding of a meaningful judicial pre-trial. Such time has generally been held to be neutral in the calculation of delay: R. v. Lahiry, 2011 ONSC 6780, at para. 19; R. v. Tran, at paras. 34-37; R. v. Nguyen, 2013 ONCA 169, at para. 72; R. v. Richards, 2012 ONSC 3479, at paras. 9-10; R. v. Emanuel, 2012 ONSC 1132, at paras. 13-15; R. v. Rutherford, 2012 ONSC 2969, at paras. 41-42.

[23] Intake periods vary in length according to the complexity of the case. Case law reveals intake periods ranging from two to eleven months: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.), at paras. 30-32; R. v. Schertzer, 2009 ONCA 742, at paras. 77-80.

[24] I do not agree with Mr. Chernovsky, counsel for the applicant, that this was a straightforward case which required an intake period of less than two months. The allegations involve a serious sexual assault on an underage complainant; there were three original accused persons, one of whom was a youth, and the Crown’s assessment of the case would require consideration of whether to call the youth accused person at the preliminary hearing. Having said that, one would have thought that a three to four month intake period would have been appropriate in this case, yet the time from first appearance to setting the trial date was approximately 5 months and 13 days.

[25] In the absence of an explanation, I would be prepared to count at least one month as constituting institutional delay: R. v. G.(C.R.), at paras. 15-19. Having regard to the applicant’s counsel’s comments on 15 November 2012, however, it would appear that all parties recognised that a further month’s adjournment would be required to properly assess the disclosure provided by the Crown. That being the case, the entire period from first appearance (3 August 2012) to the setting of the preliminary inquiry date (16 January 2013) can be characterised as a reasonable intake period and should be considered neutral.

ii. The Preliminary Inquiry: 16 January 2013 to 21 August 2013

[26] 16 January 2013 to 21 August 2013

Almost eight months later, the preliminary inquiry commenced and was completed on time. On 22 August 2013, the applicant and his co-accused were committed to stand trial at the Superior Court of Justice. This two-day period forms part of the inherent trial time of the case. The case was remanded to 25 September 2013, for its first appearance in the Assignment Court.

Calculation of Delay (7 months 5 days)

[27] The preliminary inquiry took place approximately 7 months 5 days after the setting of the date. Both parties claim the entire period to be institutional delay. Mr. Boulet, for the Crown, submits that this is the most generous view of the delay. I agree. It is also incorrect and I am not bound to accept it: R. v. Lahiry, at para. 35, and R. v. Tran, at para. 35.

[28] In R. v. Morin, Sopinka J. explained that systemic or institutional delay begins “to run when the parties are ready for trial but the system cannot accommodate them.” Preparation of the case, scheduling requirements, and the reality that both the Crown and defence counsel have a litany of other cases on their plate, mean that some period of the time between the setting of the trial date and the commencement of the hearing is part of the inherent time requirements and should not be counted as institutional delay. As an example, in R. v. Sharma, Sopinka J. subtracted three months from the set date to trial date period as he took the view that counsel could not be said to be ready for trial immediately on setting the date.

[29] Sopinka J.’s observations, however, were soon forgotten: courts routinely began to calculate institutional delay from when the trial date was set. The Court of Appeal for Ontario revisited the topic in R. v. M.(N.N.) (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.), where Juriansz J.A. reminded us of the comments made by Sopinka J. in Morin and Sharma which emphasised the need for the court to calculate delay based on the dates when counsel were ready. Further appellate judgments confirmed this as the correct approach: R. v. Schertzer, at paras. 91-94, 110-112; R. v. Khan, 2011 ONCA 173, at paras. 32-36.

[30] Finally, in R. v. Lahiry, Code J. conducted a thorough review of the authorities on the point. He made clear, at paras. 31 to 34, that counsel are obliged to put their availability dates on the record when setting a hearing date so that the proper allocation of institutional delay could be made. The Lahiry approach was adopted in R. v. Tran, at para. 30.

[31] Turning to the circumstances of this case, I note that, when setting the preliminary inquiry date, there was no mention of counsel’s earliest readiness date. In my view, counsel were obliged to put these dates on the record. Failure by counsel to do so places the court in the artificial position of having to determine, retrospectively, when the s. 11(b) clock began to run. Counsel’s silence raises the risk that a court may find the entire period between the set date appearance and trial to be neutral. In this case, I am prepared to apportion two months of the time period as part of the inherent time requirements of the case when counsel had to prepare to properly litigate the matter.

[32] The remaining 5 months and 5 days is to be considered as institutional delay.

iii. The Superior Court Intake Period: 22 August 2013 to 9 December 2013

[33] 22 August 2013 to 9 December 2013

On 25 September 2013, the case arrived at the Assignment Court for its first scheduled appearance. However, Wayner’s counsel, Mr. Goldkind, did not. As a result, attempts to set a date for judicial pre-trial were unsuccessful and both accused were remanded to 2 October 2013. On that date, Mr. Goldkind again failed to appear and the matter was put over to 10 October 2013, so that Mr. Stein, counsel for the applicant, could contact him. On 10 October 2013, with all counsel finally present, the matter was adjourned to 9 December 2013 to accommodate the first date that Mr. Goldkind had available for pre-trial.

Calculation of Delay (Delay: 3 months 17 days)

[34] Committal to the Superior Court of Justice carries with it inherent time requirements required to move the case forward to trial. The information and preliminary inquiry exhibits must be transferred from the Ontario Court of Justice, the accused must attend the Assignment Court on a designated day, and counsel must fix a date for judicial pre-trial which performs a valuable function in evaluating the correct time estimates for trial.

[35] In R. v. Khan, at para. 53, Karakatsanis J.A. (as she then was), explained the necessity of holding a judicial pre-trial in the following way:

A judicial pre-trial is designed to streamline the issues if possible, to identify an accurate estimate of the required trial time, and to help ensure a fair and efficient trial. While a pre-trial may add several weeks to a neutral intake period in a particular case, it may well result in an earlier trial date or a shorter trial.

[36] Normally, the Superior Court intake process takes between two to three months. In this case, however, matters were complicated by the absence of Wayner’s counsel at the first scheduled appearance date. The matter was remanded on two occasions from 25 September to 10 October as Mr. Goldkind continued to be absent from court. When the parties were finally all present, the case had to be adjourned for nearly two months to accommodate Mr. Goldkind’s schedule. Both the applicant’s counsel and the Crown indicated that they would have been available for a pre-trial as early as November 2013. In my view, the slightly extended period of time is understandable given Mr. Goldkind’s initial absence and subsequent unavailability. The delay, constituting 3 months, 17 days should therefore be considered neutral.

iv. Setting the First Trial Date: 9 December 2013 to 14 October 2014

[37] 9 December 2013 to 14 October 2014

On 9 December 2013, following the judicial pre-trial, a 9-day jury trial was set for 14 October 2014. The transcript of the set date hearing reveals no details as to the availability of either the Crown or defence counsel. However, the Trial Confirmation Form filed as part of the court record reveals that Mr. Goldkind’s first availability date was 27 January 2014, whereas the applicant’s counsel, Mr. Stein, would not be available for trial until 3 March 2014. The Crown indicated that its first date was that of 24 March 2014.

Calculation of Delay (10 months 5 days)

[38] Both parties take the position that the entire period from set date to trial should be treated as institutional delay. For the reasons set out above, I disagree. Time began to run when the parties were ready for trial. In this case, Mr. Stein would not be able to start a trial until 3 March 2014, so this is the earliest date at which institutional delay could be said to begin. In my view, in a trial of this nature, the Crown would require three months to be ready: preliminary inquiry transcripts had to be obtained, witnesses had to be prepared for trial and potential pre-trial motions had to be considered and filed.

[39] In light of that analysis, I am of the view that 7 months is properly designated as institutional delay with the rest to be counted as neutral.

v. The First Trial to Second Trial: 14 October 2014 to 20 April 2015

[40] 14 October 2014: The First Trial Date

On the morning of trial, Mr. Goldkind requested an adjournment on the basis that he was not ready to proceed. Mr. Goldkind explained that he had been involved in a murder case which had prevented him from properly preparing Wayner’s defence. Proceeding with the trial would mean that Mr. Goldkind would not be able to defend his client in a manner which would match his usual standards.

[41] The Crown opposed the application emphasising the significance of the complainant’s youth and vulnerability. Mr. Stein, however, supported Mr. Goldkind’s request. In his view, “there is no separation between Mr. Wayner and Mr. Pottle; in others words, a severance application would be of no value to anybody. The facts are identical, the location is the same, people are together on the Crown’s evidence the entire time, and there’s no reason to separate the two.” Mr. Stein added that his client would be “significantly prejudiced” if Mr. Goldkind was not adequately prepared for trial.

[42] Having heard all submissions, the presiding judge granted the adjournment and traversed the matter to Practice Court where a new trial date of 28 September 2015 was set. Both the Crown and Mr. Stein put on record that they had earlier dates but that the selected date was the first that Mr. Goldkind could accommodate.

[43] 28 October 2014

Despite setting the 28 September 2015 date, the Crown brought the matter forward to announce that it had secured an earlier trial date of 13 April 2015. That date was agreed to by all counsel including Mr. Chernovsky, now acting as the applicant’s counsel. Mr. Goldkind, although not present, had communicated to the parties that he was available on this earlier date. The matter was accordingly remanded to 13 April 2015, with the 28 September 2015 trial date being vacated.

[44] 4 November 2014 to 20 April 2015

On 4 November 2014, Mr. Chernovsky notified the court that the 13 April 2015 date was no longer satisfactory as it conflicted with Pottle’s exam schedule. However, due to Mr. Goldkind’s absence, the matter was put over to 6 November 2014. Mr. Chernovsky was directed to bring a formal adjournment application. On 6 November 2014, Mr. Goldkind again being absent, the matter was put over to 26 November 2014. Mr. Chernovsky informed the court that he would prepare an adjournment application to be heard on that date. The Crown consented to the application, as a new trial date of 20 April 2015 had been secured in the interim.

[45] Calculation of Delay (6 months, 6 days)

The adjournment of the first trial date lays entirely at the feet of Wayner’s co-counsel, Mr. Goldkind, who was unable to prepare properly for trial due to his busy workload. It is significant that the applicant, through his counsel, supported Mr. Goldkind’s adjournment request. Quite properly, the Crown was not content to settle for the November trial date and prioritised the matter by seeking out and obtaining an earlier date.

[46] In my view, the entire period between the two trial dates, which totals 6 months 6 days, is to be treated as neutral in the s. 11(b) calculation.

vi. The Second Trial Date to the Third Trial Date: 20 April to 7 March 2016

[47] 20 April 2015: The Second Trial Date

The trial began as scheduled with a pre-trial motion, brought by the applicant, to exclude a statement made upon arrest. However, on 21 April 2015, Crown counsel, Mr. Cole, informed the court that he had contracted a serious eye infection which might be contagious. As a result, a mistrial was declared and counsel attended the Trial Coordinator’s office to adjourn to a new trial date of 7 March 2016. Mr. Cole informed the presiding judge, Hainey J., that the scheduling of the date had been complicated by the Crown’s belief that the complainant’s evidence required a courtroom with CCTV facilities.

[48] Although he had agreed to the 7 March 2016 date, Mr. Chernovsky also indicated that he was free in the last week of July and the first week of August 2015, but Mr. Goldkind was not. However, Mr. Chernovsky was not available in either January or February 2016, which is why the date of 7 March 2016 had been selected. Mr. Chernovsky made clear to the court that, had the Crown opted not to proceed with a CCTV courtroom, all parties would have been ready to proceed on 23 November 2015.

[49] Calculation of Delay (10 months 17 days)

[50] In R. v. MacDougall, the Supreme Court of Canada dealt with a case where a trial judge, due to sentence an accused on his guilty plea, fell ill causing the sentencing hearing to be delayed. The case was suspended indefinitely as a result of the illness and, some 15 months after the plea, the Crown asked for a new judge to be assigned. The defence filed a motion for a stay of charges under s. 11(b) citing a 22-month delay from the date of charge to the hearing of the stay motion. The Supreme Court of Canada ruled that the accused’s right to a trial within a reasonable time had not been infringed. McLachlin J. (as she then was) clarified the meaning of inherent time requirements to include “extraordinary and unforeseeable events” such as the illness of the trial judge in that case. In R. v. Hoffner, 2005 CanLII 32924 (ON SC), [2005] O.J. No. 3862 (S.C.J.), the court extended that reasoning to an unexpected illness afflicting a Crown witness. The Hoffner decision was cited with approval by the court in R. v. A.J.W., 2009 ONCA 661. Illness to counsel, either Crown or defence, should not be treated any differently: R. v. Ponnuthurai, 2015 ONSC 8104, at para. 26.

[51] The delay caused by the Crown’s ill health in this case is, accordingly, to be treated as part of the inherent time requirements of the case and therefore neutral. The question for this court is whether all of the time between the mistrial and third trial date falls within this category.

[52] Mr. Chernovsky argues that the clock began to run on 23 November 2015, when all parties were ready to proceed. Mr. Boulet, on the other hand, submits the entire time should be deemed neutral as the youthful Crown witness in the case required the CCTV courtroom to testify effectively. He relies on R. v. Allen, at para. 27, where Doherty J.A. observed that:

The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[53] Mr. Boulet presses the argument that, since the youthful witness required CCTV, the Crown could not be expected to simply push aside other such cases on the 23 November 2015 date to take precedence. This case, he argues, is not “an island” whose needs assume supremacy over all other cases.

[54] In normal circumstances, I would agree with Mr. Boulet. Squeezing the applicant’s trial into the November date and forcing another trial out of the CCTV courtroom makes little sense. However, the history of this case demanded greater prioritisation. There had already been two previous trial dates and a lengthy time period between the charge and mistrial. At that point, it was incumbent upon the Crown to place greater emphasis on obtaining a rapid date which could accommodate all counsel. To its credit, the Crown sought, to no avail, to re-schedule the date in July 2015. However, once defence counsel agreed to their availability in November, the Crown had to make a choice: force another trial to step aside, find an alternative method of permitting the complainant to testify, or give up the CCTV facilities. It was open to the Crown, for example, to consider applying for a screen to shield the complainant from the applicant. None of these options appear to have been considered in this case.

[55] For these reasons, I am of the view that the institutional delay should be determined from the 23 November 2015 date. However, as Mr. Chernovsky was unavailable in either January or February, the institutional delay totals 1 month, 13 days. Mr. Chernovsky argues that the Supreme Court of Canada in R. v. Godin, 2009 SCC 26, indicated that counsel should not be forced “to hold themselves in a state of perpetual availability”. Godin, however, can be distinguished, as there the defence counsel was offered a single date which was refused. In this case, Mr. Chernovsky was unavailable throughout the two-month period. If, however, I am wrong on this point, and the entire period is to be counted, the delay constitutes 3 months 13 days.

3. Total Delay

[56] I conclude that the total Crown/institutional delay periods are as follows:

(a) Time between the set date and Preliminary Hearing: 5 months 5 days

(b) Time between the set date and the first Trial Date: 7 months

[57] Total Institutional Delay: 15 months 18 days.

[58] As a result, I find that the institutional delay that occurred in this case is well within the Morin guidelines. I turn now to the question of prejudice.

PREJUDICE

[59] The only prejudice relevant to the s. 11(b) analysis is that which arises from the delay in completing a case. Any prejudice stemming from the fact that the accused has been charged with committing an offence falls outside s. 11(b) considerations: R. v. Conway, at p. 305; R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 OR (3d) 161 (Ont. C.A.), at paras. 32-34. Proof of prejudice falls at the feet of the applicant and depends on several factors. Prejudice may be inferred from an excessive length of delay: R. v. Morin, at p. 801; R. v. Godin, at para. 31. The court may also take into account any pre-trial custody before trial or restrictive conditions as part of the release on bail.

[60] With characteristic candour, Mr. Chernovsky concedes that the bulk of the delay cannot be laid at the Crown’s feet but asks this court to shorten the time allotted to acceptable institutional delay in light of the prejudice suffered by the applicant: R. v. Seegmiller (2004), 191 CCC (3d) (Ont. C.A.), at para. 25.

[61] Two witnesses testified on the prejudice aspect of the application: the applicant and his mother, Wendy Taylor. Both told the court that, as a result of the charges being laid, the applicant was forced to leave the subsidised housing that he shared with his mother. Metro community housing, the landlord of the property, moved to evict the applicant and his mother after discovering that the applicant had been charged with these offences. Eventually, a settlement was reached whereby Ms. Taylor would remain on the premises but the applicant would move out. Moreover, the applicant could not attend any Metro housing property, and failure to abide by these conditions would result in Ms. Taylor’s eviction.

[62] The applicant moved, after his bail was amended, to allow him to reside with his sureties in North York. After a year had elapsed, the applicant was allowed to visit Ms. Taylor at her home but arrangements to do so proved difficult. Ms. Taylor’s hours of work did not mesh with the applicant’s time at school making visits very restrictive, time consuming and costly.

[63] The applicant conceded that, even though his incarceration forced his absence from work, his employer, Price Chopper, held his position until he was released and supported him thereafter. Since the allegations were publicized work colleagues became aware of the allegations, which caused him stress and embarrassment. The applicant testified that he ultimately quit his job and became reclusive.

[64] Some months later, however, the applicant began a course in construction engineering. According to the applicant he performed well and achieved a 79.7 grade average in the class. He ultimately graduated and received a diploma. In advancing prejudice, the applicant placed emphasis on the bail condition requiring him to observe a curfew. This made completing his studies more onerous.

[65] In terms of employment, the applicant testified to his inability to seek work for fear of being discovered as a person charged with the serious offences before the court.

[66] I reject these arguments. Whilst I accept that the delay in proceeding to trial caused both stress and inconvenience to the applicant, the institutional delay was not of the length that would warrant the reduction of the Morin timelines.

[67] Moreover, much of the prejudice that the applicant complains of stems from the charge rather than the delay itself and, as such, is not part of the s. 11(b) analysis: R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 624; R. v. Kovacs-Tatar, at paras. 32-33; R. v. Silveira, [1998] O.J. No. 1622 (Ont. Gen Div.), at para. 53; R. v. Boghossian, 2015 ONSC 5364, at paras. 30-31.

[68] Ironically, it could also be said that the delay benefited the applicant. He conceded, in cross-examination, that the curfew condition kept him away from bars and restaurants that he might frequent if no such condition existed. In that respect, the charges and the delay proved beneficial to the applicant in obtaining a diploma. It is noted that the curfew was lifted after he applied for a bail variation to which the Crown consented.

[69] The applicant himself testified that his work at Price Chopper was unaffected and that the company had been supportive. His only complaint was that his manager shared a Facebook article reporting the allegations with the rest of the company. That, however was prejudice resulting from the charge and not from delay. The decision to leave Price Chopper was made by the applicant himself, for his own reasons. His perceived dilemma that potential employers might “Google him” and discover the allegations is, once again, a fact of the charge rather than the delay.

[70] The applicant’s current employment (with a construction company) gives him work experience that actually goes hand-in-hand with the diploma. On this point, the applicant agreed that he was “staying on track”.

[71] Finally, I cannot ignore the fact that Mr. Stein, applicant’s counsel on 14 October 2014, supported Mr. Goldkind’s adjournment application on the basis that his client would suffer greater prejudice if the request was not granted. Mr. Chernovsky raises no issues to suggest that the delay compromised any fair trial interests. In light of my finding that the overall delay in this case was within the Morin guidelines, I am not prepared to accede to the applicant’s argument that the length of the delay caused significant prejudice necessitating a reduction of the acceptable period of delay.

Conclusion

[72] In the final analysis, I must conclude that the delay in this case was reasonable. It is also beyond dispute that the charges are very serious and that there is a strong societal interest in having a trial of the allegations.

[73] For the above reasons, I conclude that there was no violation of the applicant’s s. 11(b) Charter rights and the application is dismissed.

[74] I thank both counsel for their helpful material and submissions.

S.A.Q. Akhtar J.

Released: 14 March 2016

CITATION: R. v. Pottle, 2016 ONSC 1758

COURT FILE NO.: CR-13-10000639-0000

DATE: 20160314

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL POTTLE

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Pottle, 2016 ONSC 1758

Case Summary