RULING ON A SECTION 11(b) APPLICATION

I INTRODUCTION

[1] The Applicants are charged, along with seven other co-accused, with trafficking in cocaine, possession of cocaine for the purpose of trafficking and importation of cocaine. The charges stem from an investigation dubbed Project Odyssey extending over the period of May 2 to May 8, 2013. The trial is scheduled to proceed on April 4 to 29, 2016. The Applicants claim that their rights under section 11(b) of the Charter of Rights and Freedoms have been violated and seek a stay of proceedings. On January 27, 2016 I dismissed the application and these are my reasons for so doing.

II THE SECTION 11(b) ANALYSIS

[2] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. The primary purpose of s. 11(b), as enunciated by Sopinka J. in R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (SCC) at pp. 12-13, is the "protection of the individual rights and the provision of fundamental justice for the accused." However, as Laskin J.A. has explained in R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.) at p. 458, s. 11(b) protects several individual rights of the accused as well as rights of the broader collective:

Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pretrial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (SCC) at p. 12.

Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. See R. v. MacDougall (1998), 1998 CanLII 763 (SCC), 128 C.C.C. (3d) 483 (SCC) at p. 496.

[3] The determination of whether s. 11(b) has been violated is highly case-specific and involves a balancing of the rights mentioned by Laskin J.A. against the length and causes of the delay.

[4] In determining whether the delay is unreasonable, the relevant time period is from the date of arrest or charge to the end of the trial. The factors to be considered in analyzing whether a delay is unreasonable are: (A) the length of the delay; (B) waiver of time periods; (C) the reasons for the delay, including (1) inherent time requirements of the case, (2) actions of the accused, (3) actions of the Crown, (4) limits on institutional resources, and (5) other reasons for delay; and (D) prejudice to the accused.

[5] I will first discuss the legal principles that are relevant to (A) the length of the delay; (B) the waiver of time periods; and (C) the reasons for the delay. I will then set out a chronology that applies these principles to the facts of this case. Then, having determined the total actionable delay in this case, I will consider the claims of prejudice brought by the various applicants.

(A) The Length of the Delay

[6] The total delay in this case is 32 months and 15 days to the anticipated date of their trial. Of course, for the purposes of the s. 11(b) analysis, the concern is the delay attributable to actions of the Crown or institutional delay ("actionable delay"). This obviously does not include the delay that is deemed to be neutral, such as intake periods, or the delay caused by or waived by the applicant.

[7] The applicant takes the position that the actionable delay is 19 months, 24 days. The Crown says the relevant delay is at most 7 months, 10 days. However, there were significant differences between the ways the various accused conducted themselves. Consequently, the amount of actionable delay attributable to them differs.

[8] In considering the total length of delay, one should consider the administrative guidelines set out in R. v. Morin, supra, of eight to ten months following the intake period to the completion of the preliminary inquiry and another six to eight months from committal to trial: R. v. C.R.G. (2005), 2005 CanLII 32192 (ON CA), 77 O.R. (3d) 308 (C.A.) at para. 19; R. v. Satkunananthan, 2001 CanLII 24061 (ON CA), [2001] O.J. No. 1019 (C.A.) at para. 39. Or as expressed more recently by our Court of Appeal in R. v. N.N.M. (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.) at p. 452, the administrative guideline suggests a "range of sixteen to eighteen months for a case that proceeds through both levels of court." It must be kept in mind that these guidelines are not to be applied as if they were judicially developed limitation periods. While only the defence estimate of actionable delay falls outside the Morin guidelines, the allegations of prejudice in this case must be considered.

(B) Waiver of Time Periods

[9] An accused person may waive his or her rights under s. 11(b) either in their entirety or, more commonly, by agreeing that specific time periods need not be considered in the overall assessment of reasonableness. A waiver must be clear and unequivocal with full knowledge of the rights guaranteed by s. 11(b) and of the effect waiver will have on those rights. If no real choice or option exists there can be no waiver. A waiver may be explicit or implicit. An explicit waiver ordinarily involves express advertence to the delay issue. An implicit waiver arises when it is appropriate to infer from the conduct of the defence that a particular period of delay is acceptable. For example, agreement to a future date for an appearance may be sufficient to constitute waiver:

[10] Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant's s. 11(b) rights might be inferred based on the foregoing circumstances.[^1] But an important qualification to this is that the notion of waiver contemplates that a choice has been made between available options. Agreement to the inevitable, or the only option, does not constitute waiver.

[11] The onus is upon the Crown to prove or establish waiver. There was no explicit waiver by the applicant in this case. However, this does not preclude consideration of any delays to which the applicant may have contributed, or to which he may be said to have acquiesced. Such factors will now be considered.

(C) The Reasons for the Delay

(1) Inherent Time Requirements of the Case

[12] As Sopinka J. explained in R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.J. No. 25 at para 41:

All offences have certain inherent time requirements which inevitably lead to delay. Just as the fire truck must get to the fire, so must a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which must be evaluate. [Emphasis added.]

[13] In R. v. MacDougall 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 at para. 44, McLachlin J. stated that the inherent time requirements of a case consist of "the period of time that would normally be required to process a case, assuming the availability of adequate institutional resources." Importantly, the period of time attributable to the inherent time requirements of a case is neutral in terms of the s. 11(b) analysis.

[14] The first part of the inherent time requirements of a case has been described as the intake requirements of a case. These include preliminary matters, such as applications for bail; applications for legal aid; retention of counsel by the accused; and disclosure by the Crown. As for delay involved in the holding of judicial pre-trials, the more recent case law from our Court of Appeal indicates that this should properly be considered part of the inherent time requirements of a case and the resulting delay is therefore neutral.

[15] Another important part of the inherent time requirements of a case is the time required for counsel to prepare for a case. As made clear in the above passage from Morin, the more complex the case, the longer the period required to properly prepare for it. The need for preparation can change the calculation of institutional delay between a set date and a preliminary inquiry or a set date and a trial date. This is recognized in R. v. N.N.M. (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.). Justice Juriansz made it clear that the time required for preparation is part of the inherent time requirements of the case and that this could affect the calculation of institutional delay. When discussing an "extraordinary delay" of almost a year between a set date and the preliminary inquiry, Juriansz J.A. stated at paras. 28 and 29:

In this case counsel did not even put their own availability on the record. Counsel merely stated that November 24, 2003, was the earliest date the court could provide. It is extremely doubtful counsel were available for the preliminary inquiry immediately. Counsel's availability is useful context for assessing the reasonableness of the total delay in the concluding balancing analysis. It is also worth noting that neither party allotted any time for counsel to prepare for the preliminary hearing. Counsel's preparation time would be part of the inherent time required in this case. [Emphasis added.]

[16] As well, when discussing the assessment of the reasonableness of the total delay, Justice Juriansz at para. 70 observed:

Moreover, neither party in this case took into account the preparation time required by counsel. As noted above, Sopinka J. in Morin made clear that the time counsel require to prepare for trial and the other steps in the proceeding is inherently required.

[17] In Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425, while the Ontario Court of Appeal did not mention N.N.M., the Court did say of the six-month period between the set-date appearance in this court and the trial date, "Ordinarily, this would be considered institutional delay, assuming the parties are otherwise ready to proceed." (Emphasis added.) I do not take this passage to mean that both parties must be ready to proceed the next day when setting a trial date or that institutional delay only commences when both parties are entirely ready to proceed. But I do take this passage from Schertzer, like the preceding passages from N.N.M., to be a clear recognition that when preparation is required for a preliminary inquiry or a trial, it is unreasonable to consider that the entirety of the delay from the set date should count as institutional delay against the Crown. Rather, the period of institutional delay should be reduced by the amount of time that would have been required for counsel to prepare.[^2] In making this calculation, a judge also should heed the comments of Sopinka J. in Morin, at para 42: "Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges."

[18] This was a complex case involving as it involved 10 co-accused, notes from over 30 police officers, 4 days of surveillance, a civilian witness and the execution of multiple search warrants. The need for preparation is a significant consideration in this case. In assessing the delay between the set date and the date for the preliminary inquiry and between the set date and the trial date, I have reduced the period of institutional delay by two months to account for necessary trial preparation by the defence. In doing so, I should note that I consider two months to be a conservative estimate of the amount of time required for trial, particularly keeping in mind Justice Sopinka's admonition that counsel cannot be expected to devote their time exclusively to one case.

[19] I will outline in the chronology at Part III, infra., the other time periods that I have found to be part of the inherent time requirements of the case.

(2) Actions of the Accused

In R. v. Morin, supra, Sopinka J. at p. 793 made it clear that the actions of the accused, though short of waiver, should nonetheless be taken into account:

This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.

[20] Justice Sopinka concluded that such actions "must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable." This does not mean that the pursuit of such legitimate issues by the defence is to be discouraged. Rather, it is simply recognition that the defence raising such further issues will increase the complexity of the matter, requiring more time for the matter to be litigated.

(3) Actions of the Crown

[21] The applicants are quite critical of the Crown's decision to prosecute all ten co-accused together. However, the defence did not bring a motion to sever until Ms. Webb indicated that a motion for severance had been filed on the same day as the 11(b) motion was argued. Given the nature of the case, the Crown was well within its rights to prosecute all ten co-accused together and, in my view, having separate trials would not have been in the public interest.

(4) Limits on Institutional Resources

[22] In R. v. Morin, at para. 47, Sopinka J. defined institutional delay as "the period that starts to run when the parties are ready for trial but the system cannot accommodate them." In most cases, the most significant period of time attributable to limits on institutional resources will be the time periods between a set date and a preliminary inquiry or trial. However, as noted above, the amount of time attributable to institutional delay may be reduced when significant preparation is required for the preliminary inquiry or trial. This is likely only to be a consideration in complex cases.

(5) Other Reasons for Delay

[23] The parties raised no other reasons for delay during the relevant period of time.

III CHRONOLOGY OF EVENTS

[24] The following is brief chronology of the relevant dates and an analysis of the various time periods in terms of the legal principles outlined above.

(A) Proceedings in the Ontario Court of Justice

July 21, 2013 to December 17, 2014

[25] Mr. Sandhu was arrested on July 21, 2013 and Mr. Singh was arrested on July 25, 2013. Mr. Sandhu did not retain counsel until December 17, 2013 and it was only then that a judicial re-trial could be scheduled. All of this time is neutral.

December 18, 2013 to January 21, 2014

[26] The judicial pre-trial for the two applicants is scheduled for January 21, 2014. The applicants claim that this is too long and should be actionable time since it is the result of the Crown deciding to prosecute all 10 co-accused together. I disagree. The Crown was ready to hold a judicial pre-trial as early as October 22, 2013 but was unable to do so since Mr. Sandhu had yet to properly retain counsel. All of this time is neutral.

January 22, 2013 to February 18, 2014

[27] During this time a judicial pre-trial is held for the other co-accused, a statement of issues is filed with the court and counsel for Mr. Singh indicate they are not available until November of 2014. Dates for the preliminary inquiry are set for November 10, 12, 13, 14, 17 and 18, 2014.

February 18, 2014 to November 10, 2014

[28] The total delay here is 9 months and 6 days. It should be noted that the Crown had arranged to make earlier dates available to accommodate the hearing and dates as early as April, 2014 were offered. While counsel for Mr. Sandhu were available in May and June 2014, and counsel for Mr. Singh was available on the earlier dates, November 10, 2014 was the first date agreeable to all parties. Of this further delay of over six months some 2 months should be considered part of the inherent time requirements of the case as preparation time for the preliminary inquiry. The remaining delay of slightly more than four months is the result of a need to accommodate the schedules of counsel for the co-accused.

November 10 to November 19, 2014

[29] This was the time required for the conduct of the preliminary inquiry and the delay is neutral.

(B) Proceedings in the Superior Court of Justice

November 19, 2014 to February 4, 2015

[30] The matter is first in the Superior Court On December 17, 2014. One December 17, 2014 a judicial pre-trial is scheduled for February 4, 2015 and the matter is to return to court on January 16, 2015 to confirm that date as 3 co-accused are still not represented by counsel. On January 16, 2015, the February 4, 2015 judicial pre-trial is confirmed. On February 4, 2015 the Crown suggested a 4 week trial in September 2015 and the matter is adjourned one week to permit the Crown to check officer’s leave dates and to canvass dates with counsel. The Crown agreed to check if witnesses would be available over the summer, in case the Court was able to find time to schedule the hearing in July or August. The defence argues that this is too long a period to wait for a judicial pre-trial and suggests that some of this time must count against the crown. In the circumstances of this case I disagree. The actions of the co-accused are as responsible for this delay as any actions of the Crown.

February 4, 2015 to February 20, 2015

[31] Crown counsel has the flu and cannot attend on February 11, 2015 and the matter is adjourned to February 20, 2015 when the trial dates are set for April 4 to 29, 2016. An adjournment due to ill counsel is neutral time. None of this time is actionable delay.

February 21, 2015 to April 4, 2016

[32] Mr. Sandhu’s counsel indicated she would be available in May 2015 until the fall of 2015, and then not again until Oct. 2016. Mr. Singh’s counsel indicated he was available for all dates offered by the Court. The Court was able to accommodate the trial on July 20, 2015 and then starting September 2015. The Crown was available to start in January 2016 and remaining counsel were ready by Feb. 2016. However, counsel for co-accused, Mr. Iqbal and Mr. Sharma were not available until April 2016 and this was when the trial dates were set. I would attribute this time as follows. Two months of preparation time for trial are inherent requirements of the case. Two months of institutional delay from May 22, 2015 to July 20, 2015 when the court had no available dates. Five months and 11 days of Crown delay as the Crown was not available from July 20, 2015 until the beginning of 2016. Four months and two days of neutral delay from January 2, 2016 to April 4, 2016 which was the further delay necessitated by counsel for co-accused, Mr. Iqbal and Mr. Sharma.

IV Total Actionable Delay

[33] Based on the foregoing calculations the total actionable delay in this case is eight months, 11 days. There is another eight months of delay that resulted from the need to accommodate counsel for the co-accused. I appreciate that the Courts have recognized that it is the obligation of the Crown to bring an accused to trial within a reasonable time. Thus, delays caused by the need to accommodate co-accused cannot simply be considered neutral. The Crown’s legitimate interest in conducting a joint trial of co-accused must be balanced against an applicants’ right to be tried within a reasonable time. In this case I do not doubt that the Crown’s desire to try the co-accused together was legitimate and defensible, but this also imposes on the Crown an obligation to take appropriate measures to protect the rights of the accused to be tried within a reasonable time. The applicants suggest that the Crown failed in meeting this obligation. In this case, I disagree. I find that the case was diligent and proactive in moving the matter move forward as quickly as possible. Disclosure was provided within a reasonable time frame. Judicial pre-trials were also conducted as expeditiously as possible. At the time of setting the preliminary hearing the Crown took steps to open up additional court time in order to accommodate the hearing on an earlier date. At the time of setting the trial date, when it appeared that the issue of counsel availability could cause delay, the Crown took it upon himself to collect the availability of all counsel in order to ensure the earliest date possible. All of this was undertaken with a view to limiting any unreasonable delay while respecting each accused’s right to be represented by counsel of their choice.

[34] In any event, I note that even if I consider the extra eight months caused by the need to accommodate counsel for the co-accused to be actionable delay, the total delay in this case would be 16 months and 11 days, which is still within the Morin guidelines that would consider a delay of 18 months until trial in the Superior Court.

V Prejudice to the Applicants

(A) General Principles about Prejudice

[35] As Justice Cory made clear in R. v. Askov (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 (SCC), accused persons suffer prejudice when their trials are delayed. That prejudice can be inferred from prolonged delay even in instances where no actual or direct evidence of prejudice is presented by the accused. Indeed, as Cory J. wrote in Askov at 474:

I agree with the position taken by Lamer J. that s. 11(b) explicitly focuses upon the individual interest of liberty and security of the person. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter. There could be no greater frustration imaginable for an innocent person charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family. It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty. It follows that on the same fundamental level of importance, all accused persons, each of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time.

[Emphasis added.]

[36] In assessing the prejudice to the accused, one must focus on prejudice resulting only from the delay, not prejudice resulting from the fact that the accused is charged with a criminal offence. As our Court of Appeal explained in R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 192 C.C.C. (3d) 91 (Ont. C.A.), at 171:

There is a difference between prejudice arising from merely being charged with a criminal offence and prejudice arising from delay.

The focus of prejudice under s. 11(b) is the prejudice flowing from a situation "prolonged" by delay rather than the mere fact of being charged with a criminal offence: Bennett, 1991 CanLII 2701 (ON CA), [1991] O.J. No. 884, supra, at p. 222 O.R., p. 478 C.C.C. In R. v. Silveira, [1998] O.J. No. 1622, 35 M.V.R. (3d) 30 (Gen. Div.), Hill J. clarified at para. 53, that "[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial." He accepted, however, that the delay to trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines. [Emphasis added]

[37] The foregoing passage from Kovacs-Tatar, could be read as suggesting that it is only prejudice resulting from delay beyond the administrative guidelines that should be taken into account at this stage of the analysis. However, it would be an error to reach this generalized conclusion on the basis of Kovacs-Tatar. Indeed, Juriansz J.A. seems to have rejected such an approach in the subsequent case of N.N.M., supra, saying at p. 453. "Even though the combination of Crown and institutional delay is within the guidelines, it is necessary to consider whether the total delay is unreasonable in light of the actual prejudice the respondent has experienced."

[38] There is a duty placed on the Applicant to bring alleged prejudice to the attention of the Crown or court. As Justice Arbour stated in R. v. Bennett, 1991 CanLII 2701 (ON CA), [1991] O.J. No. 884 (C.A.), aff’d 1992 CanLII 43 (SCC), [1992] S.C.J. No. 91 at para 109 – 110.

…[I]f an accused is being prejudiced by delay in a less apparent way, he or she must bear responsibility for taking the initiative in alleviating that prejudice.

[39] This, in my view, is not inconsistent with the proposition that an accused need not assert his s.11(b) right. An accused who claims prejudice, beyond the prejudice common to most accused and inferred from any delay, is claiming an entitlement to a speedier trial than other accused in apparently similar circumstances. The only way for the system to accommodate that claim is to hear it expressed. There comes a point, in my opinion, where an accused who is suffering a special prejudice from the delay of his trial must bring his or her plight to the attention of the prosecuting authorities and the court.

[40] The analysis of prejudice is, by necessity, a case-specific undertaking. Some accused may suffer no prejudice from delay and may in fact welcome it.[^3] However, others may suffer such significant prejudice from delay that s. 11(b) might require they be tried before the upper limit of the administrative guidelines. This relationship between the amount of prejudice and the length of acceptable delay was recognized by Rosenberg J.A. in R. v. C.R.G., supra, at p. 319, "[T]he amount of delay that was tolerable in this case must be at the lower end of the range given the prejudice to the respondent because of the very strict bail conditions." Therefore, it is necessary to consider the specifics claims of prejudice in this case.

(B) The Claims of Prejudice in this Case

[41] Prejudice in the 11(b) context can be inferred from the length of the delay and also specific prejudice demonstrated through evidence. Prejudice is related to the interests that section 11(b) protects: the right to a fair trial; liberty, and security of the person. I will consider each of these in turn.

[42] There is no suggestion that the fair trial interests of any of the applicants were affected by the passage of time. This makes sense as the Crown’s case consists of both real evidence (i.e. drug evidence) and viva voce evidence concerning observations (i.e. identification evidence). Real evidence is rarely compromised with the passage of time. The same is not true of viva voce evidence, as a witness’s memory can fade over time. However, in the present case there is little risk of the delay impacting the accused’s fair trial rights. The witnesses in this case will be police officers who made extensive contemporaneous notes of the events. The applicants have failed to establish that any other witnesses will be able to remember relevant events due to the passage of time.

[43] Thus in assessing their claims of prejudice I will focus on claims of prejudice to either the security interests or liberty interests of the various applicants. All of the applicants rely on the inferred prejudice discussed by Cory J. in Askov. The Crown acknowledges that some prejudice can be inferred in this case but submits that it does not extend beyond what most accused individuals experience when faced with criminal proceedings.

(1) Mr. Sandhu

[44] Mr. Sandhu was released on a surety bail a day after his arrest. The conditions of the bail were not overly restrictive. He was initially on a curfew to be in his place of residence from 6 p.m. onwards, which was subsequently amended to 11 p.m. onwards. Mr. Sandhu indicates that he lost his business because he could not pay attention to it due to his legal troubles. Mr. Sandhu does adequately explain this nor does he explain how the closing of his business was a direct result of the delay in reaching trial as opposed to the simple fact that he was charged. Mr. Sandhu further indicates that he lost income due to his inability to work nights, however he never made a request to have his bail varied to allow him to take on these additional hours.

[45] Mr. Sandhu indicates he is stressed by the fact that his friends and family members may find out about his charges. However, this is a result of his charges, as opposed to just the delay. He further indicates that he is stressed by not being able to spend as much time with his daughter due to work obligations. This is difficult to understand as he also claims to be working fewer hours than he used to. Mr. Sandhu outlines his inability to make family trips to the United States or India, which impacts on his enjoyment of life. He makes no reference to the fact that his bail conditions in no way prevent him from making family trips within Ontario. Moreover, he has not sought to vary his bail in this regard.

(2) Mr. Singh

[46] Mr. Singh was also released on a surety bail with conditions not to be out of his residence without his surety and not to drive a truck. He later applied to have his brother-in-law added as a surety in order for him to accompany him to work, to which the Crown consented. He was prohibited from driving a truck as the allegations are that he used a truck to bring drugs into Canada. Mr. Singh indicates that he suffered financially due to his inability to earn an income due to his bail conditions. But he did not bring an application to vary his bail to permit him to drive a truck. It should also be noted that his bail conditions did not preclude Mr. Singh from seeking other types of employment and he has not indicated that he made any effort to do so.

[47] Mr. Singh indicates that he has been frustrated, irritable and anxious because he is forced, by his bail conditions, to remain at home. He indicates it has been stressful to live with this matter hanging over his head and he is suffering the strain of not being able to earn an income. As I have already indicated Mr. Singh could have sought a further bail variation to permit him to work and he has failed to do so. Moreover, these issues really stem from the fact that he is charged rather than from the delay I his trial.

(C) Conclusion With Respect to Prejudice Claims

[48] I find that neither applicant has clearly identified prejudice that they have suffered as a result of the delay in this matter coming to trial as opposed to prejudice stemming from the fact that they have been charged with serious criminal offences. Moreover, to the extent that they believe they have been prejudice they should have brought this to the attention of the Court by way of a bail review. Neither of them did so. While they have no doubt suffered some anxiety, stress and financial strain, the Applicants have not demonstrated that their situation is any different from that of any other person facing serious criminal charges.

VI Conclusion

[49] The delay in this case has certainly been long enough to justify the bringing of the present application. But, for the reasons outlined above, I find that the actionable delay falls within the guidelines enunciated in Askov and Morin, particularly given the complexity of the matter.

[50] Of course, the proper determination of an application such as this also requires the court balance the interests of the applicants against the interests of society. As Justice Cory recognized in Askov at para. 44, there is "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law." Moreover, as was pointed out in Morin at para. 30, "[a]s the seriousness of the offence increases so does the societal demand that the accused be brought to trial." There is no question that the applicants are charged with serious crimes. Thus, I find that there is a compelling societal interest in having the applicants' trial proceed.

[51] For the foregoing reasons, the application is dismissed.

T. Ducharme J.

Released: April 5, 2016

CITATION: R. v. Sandhu, 2016 ONSC 2271

COURT FILE NO.: CR-14-00000802-0000

DATE: 20160405

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

SANDHU and SINGH

Applicants

RULING ON A SECTION 11(b) APPLICATION

Ducharme J.

Released: April 5, 2016

[^1]: R. v. Smith (1989), 1989 CanLII 12 (SCC), 52 C.C.C. (3d) 97 per Sopinka J. at 109 (SCC)

[^2]: In R. v. McCormack, [2009] O.J. No. 5803 (S.C.J.), a much less complex case, Justice Croll took the same approach and treated the entirety of the four-month period between the set date and the preliminary inquiry as "time necessary for counsel to prepare for the preliminary inquiry" and therefore part of the inherent time requirements of the case.

[^3]: Doherty J., "Delay" (National Federation of Law Societies, National Criminal Law Program: Tactics, Procedure and Practice, July 1989, Halifax) at 2-3.

R. v. Sandhu, 2016 ONSC 2271

Case Summary

RULING ON A SECTION 11(b) APPLICATION

I INTRODUCTION

II THE SECTION 11(b) ANALYSIS

(A) The Length of the Delay

(B) Waiver of Time Periods

(C) The Reasons for the Delay

(1) Inherent Time Requirements of the Case

(2) Actions of the Accused

(3) Actions of the Crown

(4) Limits on Institutional Resources

(5) Other Reasons for Delay

III CHRONOLOGY OF EVENTS

(A) Proceedings in the Ontario Court of Justice

(B) Proceedings in the Superior Court of Justice

IV Total Actionable Delay

V Prejudice to the Applicants

(A) General Principles about Prejudice

(B) The Claims of Prejudice in this Case

(1) Mr. Sandhu

(2) Mr. Singh

(C) Conclusion With Respect to Prejudice Claims

VI Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 2