Court File and Parties

File No.: CRIM J (F) 1240/15 Date: 20160429 Ontario Superior Court of Justice

Between: Duran Fernandes, Justin Fernandes and Luis Lima J. Penman, for Duran Fernandes C. S. White, for Justin Fernandes Y. Schochet, for Luis Lima Applicants

- and -

Her Majesty the Queen S. Weinstock, for the Respondent Respondent

Heard: April 1, 2016

Ruling on Section 11(b) Charter Application

Sproat J.

Introduction

[1] My reasons on the section 11(b) application are as follows. In referring to time, I will generally use approximations in terms of the number of months. As such the individual periods of delay identified will not add up exactly to the total number of months of delay. While Mr. Weinstock argued this application he was not one of the Crown Attorneys handling this case previously and so was not responsible for the delay that occurred.

[2] On February 22, 2013 the Peel Regional Police (“PRP”) executed a search warrant and found a marijuana grow operation and seized 2090 plants. Duran and Justin Fernandes were arrested at the scene. Lima was arrested four days later. A further search warrant was executed at a residence where the police seized 6.4 kilograms of marijuana. The accused are charged with production of, and possession for the purpose of trafficking a controlled substance contrary to the Controlled Drugs and Substances Act. Their trial is scheduled to begin November 7, 2016 being a delay of 44.5 months.

The Law

[3] In R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1, Justice Sopinka explained the purpose of section 11(b) as follows:

The primary purpose of s. 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this court. I will address each of these interests and their interaction.

The individual rights which the section seeks to protect are: (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial.

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

The secondary societal interest is most obvious when it parallels that of the Accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. (p. 12 – C.C.C.)

There is, as well, a societal interest that is by its very nature adverse to the interests of the Accused. In Conway, a majority of this court recognized that the interests of the Accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (p. 474). As the seriousness of the offence increases so does the societal demand that the Accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.

[4] Justice Sopinka identified the factors to be considered by the Court as follows:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including (a) inherent time requirements of the case; (b) actions of the Accused; (c) actions of the Crown; (d) limits on institutional resources, and (e) other reasons for delay, and
4. prejudice to the Accused. (p.13 – C.C.C.)

[5] Justice Sopinka provided guidance as to the application of the factors stating:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.

The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. (p. 13 - C.C.C.)

[6] In Morin Justice Sopinka, referring to the Askov guidelines of a period of institutional delay of eight to ten months in the Ontario Court and six to eight months in the Superior Court, stated:

I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay.

A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors.

The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. (p. 21 – C.C.C.)

[7] In R. v. Lahiry 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) Code J. heard four summary conviction appeals and provided a very helpful overview of the general principles:

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

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

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

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

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

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

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

[10] As to institutional delay, Code J. explained:

[26] The trial judge had insisted, during oral argument of the s. 11 (b) motion, that defence counsel file his letter of instructions to his agent, setting out the earliest available dates that defence counsel was proposing for the trial. The letter was then made an exhibit on the motion. This is a correct and necessary approach to the calculation of institutional delay. As Sopinka J. put it in R. v. Morin, supra, at pp. 794-95 S.C.R., pp. 16, 18 and 26-27 C.C.C., systemic or institutional delay is "the period that starts to run when the parties are ready for trial but the system cannot accommodate them". He had noted, earlier in his reasons, that "time is required for counsel to prepare" and that "counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case". Sopinka J. held that this time, for counsel to prepare and to clear their calendars when taking on a new case, is part of the inherent time requirements of the case. On the facts of Morin's case, counsel had sought "the earliest date" for trial and was given a date that was just over 13 months away. Sopinka J. held that this entire 13 month-period was not systemic or institutional delay. He reasoned as follows [at paras. 70 and 73]:

As counsel for the defence did not indicate a readiness for trial but merely a request for the earliest trial date, it is somewhat unclear whether the case for the defence was as yet ready for trial . . . I am prepared to infer from the totality of the facts that an institutional delay of about 12 months was involved. This time period is the time from which the parties were ready for trial until the point at which the courts were able to accommodate this case. (Emphasis added)

[27] In other words, Sopinka J. allocated about one month as time for counsel to prepare and make themselves available for trial, after setting the trial date. Sopinka J.'s judgment in R. v. Sharma, [1992] 1 S.C.R. 814, [1992] S.C.J. No. 26, 71 C.C.C. (3d) 184, at p. 827 S.C.R., pp. 193-94 C.C.C., is to the same effect. The entire period, from the set date appearance to the trial date in that case, was just under 12 months. However, Sopinka J. held that only nine months was systemic delay. He deducted [page198] three months because systemic delay runs "from the time when the parties were ready for trial", and he was not prepared to infer that they were immediately ready and available for trial when setting the trial date.

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

[30] In R v. Mills, [1986] 1 S.C.R. 863 Justice Lamer stated:

146 The need for protecting the security interest of the individual accused arises from the nature of the criminal justice system and of our society. We have long recognized the need for an open and public criminal system as a vital means of ensuring respect for the integrity of the process. We also acknowledge the necessity of a free and unrestricted press. As a practical matter, however, the impact of a public process on the accused may well be to jeopardize or impair the benefits of the presumption of innocence. While the presumption will continue to operate in the context of the process itself, it has little force in the broader social context. Indeed many pay no more than lip service to the presumption of innocence. Doubt will have been sown as to the accused's integrity and conduct in the eyes of family, friends and colleagues. The repercussions and disruption will vary in intensity from case to case, but they inevitably arise and are part of the harsh reality of the criminal justice process.

147. Additionally, the process is adversarial and conflictual; the stress and anxiety resulting from a criminal charge is heightened by the very nature of the process.

148. Although, to some extent, these negative consequences are unavoidable, one of the purposes of s. 11 (b) is to limit the impact of such forms of prejudice to the accused by circumscribing the time period within which they may occur. In other words, while some such prejudice to the accused may be seen as a cost of the very right to a hearing, a fortiori a public one, it must nevertheless be kept to a minimum by a speedy determination of criminal responsibility. Hence, in my view, such forms of prejudice leading to impairment of the security of the person may, in and of themselves, constitute a violation of s. 11 (b) if allowed to foster over‑long.

[31] In R v. Yun [2005] O.J. No. 1584 (S.C.J.), Dawson J. discussed the relative significance of Crown and institutional delay as follows:

[42] As it seems to me, delay that is actually caused by the Crown is a matter of particular concern. We tolerate a degree of institutional delay because it is unavoidable. However I note that approximately 38% of the total delay of 22.5 months is directly attributable to the action or inaction of the police and Crown. I also feel compelled to mention again that delay caused by the Crown is particularly troubling in a jurisdiction where everyone is well aware that the system is overburdened and that unnecessary delays must be avoided whenever possible. The public, and those injured by potentially criminal conduct, are understandably distressed when criminal charges are dismissed due to delay. This makes needless delay of a significant length which is caused by the police or Crown particularly difficult to accept. There is perhaps more basis to tolerate a degree of excessive institutional delay in jurisdictions where communities are growing rapidly and outstripping the provision of permanent resources. In my view the interests protected by s. 11(b) are affected in a fundamentally more unacceptable fashion when the police or Crown fail to do what they are expected to do and there is no acceptable excuse for the delay. That is how I would characterize the 8.5 months of delay I have attributed to the Crown in the foregoing analysis. In the long term, tolerance of substantial delay inexcusably caused by the Crown or police will have a detrimental effect upon societal interests in ensuring that accused persons are brought to trial in a timely fashion.

[43] I also note that there is prejudice in this case which goes beyond the stigma associated with being charged and subjected to bail conditions. The uncontradicted evidence indicates that there has been a real impact on the health, family life and financial prospects of the accused. That has needlessly been extended by 8.5 months, not due to institutional delay, but due to the action or inaction of the police and/or the Crown. As stated recently by my colleague Justice Hill in R. v. McNeilly and Roy, unreported, April 12, 2005 (Ont. S.C.), at para. 72, “It is not self-evident logic that we are prepared to tolerate Crown-occasioned delay in the same manner as institutional delay.”

[44] In the particular circumstances of this case, I conclude that the accused has established that his s. 11(b) rights have been violated. There is not insignificant prejudice to the accused associated with, to use the words of Justice Hill, “Crown responsibility delay”. Moreover that delay is of a nature and type which is particularly unacceptable and problematic in a jurisdiction where vigilance and serious efforts to avoid unreasonable delay are the order of the day.

[32] In R v. Tran 2012 ONCA 18 Justice Simmons cautioned that judges should not engage in a minute analysis of typical trial contingencies:

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

[33] In R v. Chrostowski, [2006] O.J. No. 1306 (S.C.J.) the following comments by Dambrot J. capture a number of my thoughts regarding the Crown handling of this case:

[42] Crown counsel began his submissions on this application by reminding me, and properly so, that this case involves serious allegations, and that society has an interest in having them proceed to trial. But given the seriousness of the allegations, one would have expected that the Crown would have managed this case with a degree of attention commensurate with that seriousness. Regrettably, it did not. This case was not managed responsibly as it progressed through the courts. As a result, among other things, disclosure was delayed, a decision concerning what charges should be proceed with was delayed, a responsible estimate of the time required for a preliminary hearing was not made, the hearing of the preliminary hearing was delayed, correspondence from counsel for the applicants went unanswered, cell phone evidence was not prepared in a manner that would have permitted it to be introduced at trial and alibi evidence to be proffered by the defence was not given the attention it deserved. Most of this was not the responsibility of Crown counsel who argued the application before me, and who was candid and fair in addressing these issues. But if the Crown does not take the management of serious cases seriously, then there will inevitably be delays of the sort that took place in this case, and the outcome of applications under s.11(b) will not necessarily favour the Crown despite the seriousness of the offences. In this case, two aspects of the Crown’s failure to manage this case effectively have significance on this motion. I will consider each in turn.

Allocation of Time

Period One – February 22, 2013 (arrest) to September 10, 2013 (day prior to first JPT) 6.5 months

[34] In reviewing the transcripts of appearances during this time period and the Application Record, I note the following:

a) April 4 – a student from Derstine Penman attended indicating the firm was not yet retained to represent Justin and Duran Fernandes and agreed that the matter should go over to May 3 for the purpose of “perfecting retainer” and obtaining disclosure. Mr. Lima had retained counsel. b) May 3 – Derstine Penman student at law advises that firm now retained. Disclosure not available. c) May 31 – a student at Derstine Penman, appears and advises “we’re not yet retained” on behalf of Justin and Duran Fernandes. Disclosure packages provided. d) June 4 – the defence by letter requests additional disclosure. e) June 21 – a student at Derstine Penman advises that the firm has been retained for Justin Fernandes but not Duran Fernandes, and that additional disclosure has been requested. f) July 19 – all accused are now represented by counsel. The court was advised all three defence counsel are available on September 10 and the JPT was scheduled for September 11. g) September 9 – the defence by letter requests additional disclosure including documentation relating to a Barrie investigation on the basis that the PRP search warrant affiant relied in part on information regarding the Barrie investigation.

[35] A reasonable intake period for a case of even moderate complexity is three months. Scheduling and holding the JPT was also part of the inherent time requirement, to which I would typically allocate an additional month. The reasonable time to retain counsel is also part of the inherent time requirement.

[36] In this case, however, all accused had not retained counsel until July 19. On that date the earliest all defence counsel were available for a JPT was September 10 and it was in fact scheduled for September 11. The reasonable additional time to accommodate the schedules of all counsel in multi-accused cases is part of the inherent time requirement.

[37] I, therefore, find that there was no Crown or institutional delay in Period One and so allocate 6.5 months to the inherent requirements of the case.

Period Two – September 11, 2013 (first JPT) to November 28, 2014 (beginning of preliminary) 14.5 months

[38] In reviewing the transcripts I note the following:

a) September 11 – JPT commenced and adjourned to October 2 pending further disclosure b) October 2 – Crown position that preliminary date should be set and that Barrie Police investigation documents were third party records. (Mr. Weinstock conceded this was in error as the PRP had a copy of the Barrie ITO from the outset although the Crown was unaware of this fact until it was mentioned by PRP Cst. Mullinder testifying on January 26, 2015). Defence position that counsel not in a position to estimate time for preliminary specifically due to a possible Dawson application. Defence position that the Barrie documents issue needs to be resolved. c) October 11 – Crown provides additional disclosure. The judge observes that he doubted a meaningful JPT had been held given that disclosure was not complete. Adjourned to November 8 at request of defence to review disclosure. d) November 8 – reference by defence to Crown making every effort to obtain information on Barrie investigation which is anticipated to take 3 weeks. e) November 29 – the Crown refers to making additional disclosure available November 25. Discussion of 5 day preliminary including Dawson application. Accused elect trial by jury. The Crown suggests setting dates for a preliminary inquiry. The judge states he agrees that additional disclosure is required before setting a date. Adjourned to January 10 so Crown can complete further disclosure. f) December 11 - the Crown gave notice of its intention to introduce at the preliminary, under s. 540(7) of the Criminal Code, the notes of six police officers, the exhibit reports related to the two locations searched and copies of Certificates of Analysis. g) January 10 – preliminary set for November 28, December 10, 11, 15, 16 which were earliest possible dates. Defence counsel were all ready to proceed by February 24.

[39] From September 11, 2013 to January 10, 2014 the Crown was still providing ongoing disclosure. There was no good reason why the Crown provided disclosure in dribs and drabs over such an extended period. While I appreciate that disclosure need not be 100% complete before a preliminary is scheduled, in this case, the judge at the JPT on November 29 agreed that it was still premature to schedule the preliminary inquiry given the additional disclosure outstanding. Unless disclosure is substantially complete it is difficult to estimate the time required and schedule cases properly. I, therefore allocate the four months to January 10, when the preliminary inquiry was finally scheduled, to Crown delay. When the preliminary was scheduled the defence counsel were all available in 1.5 months but the preliminary was scheduled for 10.5 months from January 10. I, therefore, allocate Period Two as follows:

a) Crown – 4 months b) Defence – 1.5 months (this would alternatively be viewed as part of the inherent time requirement for all counsel to prepare for the preliminary) c) Institutional – 9 months

Period Three – November 28, 2014 – September 17, 2015 (time to conduct preliminary and to committal for trial) 9.5 months

[40] In reviewing the transcripts I note the following

a) November 28 – the Dawson application was scheduled to be argued for ½ day but the preparation of responding materials had “fallen through the cracks” at the Crown office. The application was, therefore, adjourned to December 10. The preliminary judge made reference to the fact that the adjournment “may have consequences down the line”. Counsel also reserved additional days January 26 and 27. b) December 10 – the Dawson application could not proceed as defence counsel Mr. Schochet advised by letter he could not attend due to the birth of a grand-child; he did not send an agent; and defence counsel did not consult with him whether he was joining the Dawson application and whether it could proceed in his absence. Mr. Lima did not want to proceed without counsel. c) December 11, 2014 – defence counsel Ms. McInnes apologizes for being late saying a 45 minute commute took 3 hours. Court refers to forgoing afternoon recess, ending at 3:30 – 4:00 p.m., and starting at 9:30 a.m. Monday. d) December 15 – preliminary begins. The judge gives Dawson ruling permitting cross-examination of the affiant in three areas. It takes the entire day for the Crown to examine Det. Utigard in chief. There were recurring technical difficulties in playing a video. Further delay was caused by the fact the Crown had not reviewed the surveillance video in advance so had no idea which computer files had relevant material. The judge referred the fact it did not make sense to spend time staring at a stationary vehicle. e) December 16 – there was a concern that additional time was required. The Verification of Trial Date Provided form indicates that the additional dates offered were December 18 and 22, 2014 and May 29, 2015. Crown counsel was available on all dates. Defence counsel were only available May 29, 2015. f) January 26-27 – On January 26 the Crown repeats her objection to disclosing documents related to the Barrie investigation. On January 27 there is reference to the next day scheduled being May 29 and an attempt to secure earlier date. The Court offered February 6. Crown says it is available later in February, March and April. There were continuing technical problems but they do not appear to have caused long delays. The Crown called as a witness a representative from the hydro utility who gave evidence, interspersed with arguments by counsel, over 40 pages of transcript only for the Court to observe that he was not an expert and for the Crown to decide that he was not the appropriate hydro representative to testify in relation to the charge of theft of electricity. g) May 29 – the Crown called a further hydro utility witness who was the “back billing co-ordinator”. She provided evidence based upon hypothetical facts, which were not proven in evidence, as to the electricity consumption at the premises assuming: i. that a certain number of high intensity lights and fans were operating; and ii. the hours of operation based upon the growth stages, and requirements, of a marijuana plant. The presiding judge pointed out that absent an evidentiary foundation the witnesses’ calculations meant nothing. The Crown then indicated that she would be seeking to recall a police officer to testify as to the number and type of lights and fans and an expert to give evidence concerning marijuana grow cycles because she “wasn’t expecting all of this to be an issue”. The judge denied the request for an adjournment to call this evidence. Counsel agree to make written submissions and then brief oral submissions. Crown written submissions by July 3 and the defence by July 22. Defence counsel Schochet was away until August 17 and asked for August 20 for oral argument. h) August 20 – oral argument. Court offered August 25, 26 or 27 as date for ruling. Crown available. One defence counsel not available. One accused having surgery September 2 with two weeks to recover. Adjourned to September 17. i) September 17 – ruling on committal for trial. SCJ assignment court September 18 too early for Crown and October 2 not available to Mr. Schochet. Adjourned to October 23.

[41] In summary the Dawson application and the preliminary hearing were scheduled for 4.5 days. The Crown wasted ½ day by not being prepared to proceed on November 28. On December 10 one defence counsel was unexpectedly absent. A snow storm caused delay in starting and an early ending on December 11. On December 15, the court offered multiple “dates” later the same week but one counsel was not available. I conclude a combination of these factors led to requiring additional days. As such I view this delay to late January as neutral time.

[42] The preliminary continued, and could and should have been completed on, January 26 and 27. The Crown wasted more time by calling a hydro utility witness who had nothing relevant to offer. In her decision on committal the judge referred to the hydro utility evidence presented by the Crown as being of virtually no assistance. The Crown was attempting to prove that there was a hydro bypass which should have been straight forward. The police officer observed and photographed a large gauge wire concealed behind air ducts leading to the basement hydro box. A technical person from the hydro utility could easily have provided an opinion on whether this mechanism bypassed the hydro meter. The Crown was also attempting to prove the bypass resulted in the theft of over $5000 in electricity which also should have been straight forward. This could have been proven by police notes detailing the number and type of lights, together with reports concerning the electricity required to run such lights and fans and the light required to grow marijuana plants to the level of maturity at seizure.

[43] If the evidence and argument had been completed January 27, I think a reasonable time to allocate to the judge preparing and delivering a ruling, given that on this scenario the judge would not have the benefit of written submissions, is one month.

[44] I, therefore, view the period December 16 – January 27 (being 1.5 months) plus an additional 1 month to February 27 to deliver a ruling, as part of the inherent time requirement.

[45] I allocate the six month period from February 28 to August 25 to Crown delay. The committal decision could have been rendered August 25 but was deferred to September 17 to accommodate defence counsel and one of the accused who had surgery. As such I allocate the further .75 month to September 17 to defence delay.

[46] In summary I allocate Period Three as follows:

a) inherent time – 2.5 months b) Crown delay – 6 months c) Defence delay - .75 months

Period Four – September 18, 2015 – November 7, 2016 – (time in Superior Court) 13.75 months

[47] In reviewing the transcripts I note the following:

a) October 23 – JPT set for November 10 b) November 10 – the court asked counsel for their first availability for a 5-7 week trial. The Crown was available immediately and to the end of 2016 with the exception of four weeks the first of those being April 25. The court then raised the possibility of scheduling the trial in the summer but this was not available to defence counsel. The discussion then turned to having motions in the spring and trial in the fall. While the transcript is somewhat unclear it appears two defence counsel had the week of February 23 and the first four days of March for motions, and then availability May 23 for 3 weeks and following that after Labour Day. The other defence counsel was unavailable in October. The court was available as of September 8. In the result motions were scheduled May 24 for 2-3 weeks and the trial November 7 for 2-3 weeks.

[48] I distill from the discussion on November 10, 2015:

a) the earliest availability of all defence counsel for a 5-7 week trial was the beginning November 2016. b) the Crown was available immediately and (except for 4 weeks in April 2015 and the OIC was unavailable June 1-17) through to November 2016. c) scheduling the motions prior to trial was agreed to but due to the schedules of defence counsel that did little to advance the trial date d) The presiding judge raised the possibility of scheduling the trial in the summer but that was not available to counsel

[49] The 2-3 weeks to November 10, 2015 is part of the intake-inherent time requirement.

[50] As stated by Sopinka J. in Morin, institutional delay starts to run when the parties are ready for trial but the system cannot accommodate them. All defence counsel were not available to start the trial before the jury prior to November 1 and the court scheduled it to start November 7. I do not, therefore, see that there is any institutional or Crown delay in Period Four. I view Period Four as part of the inherent time requirement of the case, being three months required to prepare for trial and the 10.75 months remaining in Period Four to accommodate the schedules of busy counsel who are booked well into the future. (Alternatively, the 10.75 months could be regarded as defence delay).

[51] In Brampton today Superior Court dates are now being offered approximately 10 months in the future. This is probably not materially different than in 2013. The court regularly books more cases into each week then could possibly proceed to trial based upon its experience with the frequency with which cases listed for trial are resolved or need to be adjourned.

[52] If, however, significant s. 11(b) concerns are identified in serious cases, the court has responded by simply adding the case to an already fully booked week with the direction that it be given priority. In other words, if circumstances warrant it such a case can proceed to trial in very short order. This supports my conclusion that there was no institutional delay in Period Four.

Summary – Allocation of Delay

	Inherent (Neutral)	Institutional	Crown	Defence
Period One	6.5 months
Period Two		9 months	4 months	1.5 months
Period Three	2.5 months		6 months	.75 months
Period Four	13.75 months

[53] The months allocated total 44, and not the full 44.5, months of delay due to rounding time periods up or down.

Evidence of Prejudice

[54] Duran Fernandes testified that he has been followed by the police from the courthouse and stopped by the police 5-7 times. Of these occasions, his wife was present 3-4 times and his children 1-2 times. Police called him a drug dealer in front of his wife and children. He has a home renovation business and has also been pulled over when clients were with him.

[55] He gave evidence respecting the fact that he was interested in pursuing opportunities to do home renovation/construction work in the United States but could not enter the United States. I give this little weight given there was no indication that he had any prospect of securing immigration approval to work in the United States.

[56] He and his partner have been trying to conceive a child but this has been particularly stressful given the possibility he will be incarcerated. Prior to these charges he had not had problems with anxiety. He began to have chills, and was anxious and not himself. He has had trouble sleeping. He attended a sleep clinic in September 2014 and provided a copy of his report.

[57] In cross-examination he agreed that he was released on a promise to appear with the only restriction being not to attend at the location of the grow operation. He has been to his family doctor for anxiety and has had one prescription for a drug to reduce anxiety.

[58] Justin Fernandes gave evidence that he has been stopped by police five times before or after his court appearances. One time he was with his daughter.

[59] He has been attempting to start a business involving stereo systems for vehicles. Many suppliers are located in the United States and there is also a major consumer electronics trade show in the United States. His ability to build his business has been compromised by the fact that he cannot travel to the United States.

[60] When he was 8 years old he suffered from anxiety and was treated for a with medication. When he was 15 he stopped taking medication. A few months after the charges were laid he started to have anxiety attacks which make him anxious, sad, not motivated and feeling trapped.

[61] He agreed that he had been released on a promise to appear the only condition being that he not return to the location of the grow operation.

[62] He is now 28 years old and has only worked for 9 – 10 months in his life. He does not want to have to medicate himself again for the anxiety due to the side effects.

[63] In re-examination he said that he has not looked for full-time employment because his partner is working full-time and he takes care of their two children.

[64] Mr. Lima is 60 years old and has no criminal record. He works as a realtor.

[65] As a result of the charges he has had difficulties in his marriage and his wife has left for periods ranging from a few days to a few weeks. He has thought about suicide.

[66] He has not been able to concentrate due to the charges and has suffered stress. Many people try to avoid him. As a result his income has dropped drastically.

[67] Now he medicates with over-the-counter drugs and alcohol so that he can sleep. He has gone from being a moderate consumer of alcohol to being an alcoholic. He is so embarrassed by the charges that he has not sought help from a doctor or counsellor. Due to the charges he has not been able to go to the United States which he typically did every few years to visit relatives.

[68] In cross-examination he said that the anxiety and inability to sleep began 3 – 4 months after the charges and his concern is the stigma and the possible consequences if he is convicted.

[69] He agreed that while he had expressed concern about his ability to renew his real estate license due to the pending charges, he has renewed it on one occasion while the charges were pending.

Analysis

Length of Delay – Reasons for Delay

[70] The delay to the scheduled trial date of November 7, 2016 is approximately 44.5 months. The Crown agreed that this period raises a question as to reasonableness.

[71] In terms of unreasonable delay the focus is on institutional and Crown delay. In Morin, Justice Sopinka said:

Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of S. 11 (b) of the Charter. (p. 18 – C.C.C.)

[72] These are serious charges. With three accused it is inevitable that scheduling will be difficult and delays will ensue. It is, therefore, particularly important in such cases for the Crown to proceed expeditiously and reasonably to avoid additional avoidable delay.

[73] As Dawson J. aptly observed in Yun:

[Crown delay] is of a nature and type which is particularly unacceptable and problematic in a jurisdiction where vigilance and serious efforts to avoid unreasonable delay are the order of the day.

[74] I bear in mind the caution of Simmons J.A. in Tran that I “should not engage in a minute analysis of the normal vicissitudes of a trial.” The Crown delay in this case of 10 months, however, is both glaring and egregious. It appears to be the result of failing to spend the time necessary to figure out what the case was about and what proof was required. To paraphrase Dambrot J. in Chrostowski, the Crown did not manage this case with a degree of attention commensurate with its seriousness.

[75] The 6.5 months in Period One was more than enough time to make disclosure. The defence provided a series of detailed letters requesting disclosure. This is a search warrant case which means that by its nature the police were in possession of most of the documentation at the time of arrest or shortly after.

[76] In Period Two, however, there were continuing requests for disclosure. On December 11, almost 10 months after arrest, the Crown had still not made sufficient disclosure to satisfy the judge it was in a position to schedule a preliminary. In Period Two there were continuing references to the Barrie investigation and the Crown attempting to obtain information in that regard while maintaining an objection to produce the documents on the basis of investigative necessity. On the record before me this was an untenable and unreasonable position. When the defence ultimately made a motion to obtain the information the Crown did not oppose the application and produced a slightly redacted copy of the Barrie investigation draft ITO. The Crown response dated February 18, 2016 indicated that the Barrie investigation ended in June 2012 at which point the Barrie Police Service provided information to the PRP regarding links to 3439 Wolfdale Road in Mississauga for which the PRP obtained a search warrant which was obtained and executed on February 22, 2013.

[77] In Period Three the Crown failed to come to grips with the case and how to present it resulting in six months of additional delay. In this regard the Crown:

a) failed to respond to the defence Dawson application wasting ½ day; b) failed to review the surveillance videos in advance and so wasted court time on December 15. c) called two hydro witnesses who had no probative evidence to offer because the Crown had not provided a factual foundation for the evidence that was tendered. d) on May 29 sought a further adjournment of the preliminary inquiry to recall a witness and obtain an expert report relevant to the theft of electricity charge. e) failed to make any use of s.540(7) of the Criminal Code after having given notice of an intention to do so.

Prejudice to the Applicants

[78] The institutional delay is 9 months, and the Crown delay 10 months for a total of 19 months. The institutional delay is well below the 14-18 month range of acceptable institutional delay identified in Morin. The total institutional-Crown delay exceeds the Morin guideline. The total delay in getting to trial is 44.5 months.

The Right to Security of the Person

[79] This relates to the anxiety, concern and stigma of exposure to criminal proceedings. The bail conditions were minimally restrictive, requiring only that the accused not attend the site of the grow operation. The most severe problems related by the accused, such as Justin Fernandes having a recurrence of anxiety which had stopped when he was 15, and Mr. Lima medicating himself with drugs and alcohol, related to the fact of the criminal charges being laid. In other words, the condition developed in both cases within a few months after the charges and long before a trial could have reasonably been held.

[80] In the case of all three accused I think that there is some exaggeration in terms of the impact the charges have had on their employment. For example, Mr. Lima claimed that his income has dropped drastically. This would obviously be a simple thing to prove but he has not produced any documents. He also expressed concern about his ability to renew his real estate license due to the charges, but acknowledged that he already renewed it on one occasion while the charges were pending and he was unsure if the renewal form required him to divulge pending charges. Duran Fernandes had no real prospect of working legally in the United States. Justin Fernandes has seldom worked in his life.

[81] It remains, however, that I do accept that all three of the accused have been suffering much greater than normal anxiety and concern relating to these charges and that the length of the proceedings has exacerbated the infringement of their right to security of the person.

[82] The right to a fair trial relates to trials taking place while evidence is available and fresh. This is not a case in which there is a significant concern over the fading memory of witnesses. Most of the Crown evidence is physical evidence that was seized or surveillance evidence that was recorded.

The Balancing Process

[83] In addition to the length of the delay, I also take into account that the delay has significantly impacted the liberty and security interests of the Applicants. It has not, however, prejudiced their fair trial interests. I also take into account the societal interests in having trials held promptly and in bringing those accused of serious crimes, such as these charges, which relate to a large scale grow operation.

[84] Balancing these factors, in my opinion, the period of delay, and in particular the Crown delay, is totally unreasonable and inexcusable. It is well settled that the Crown is obliged to bring matters to trial in a reasonable time. The Crown has failed to do so. I conclude that the right of the accused to be tried within a reasonable time has been violated. A stay of proceedings is, therefore, appropriate.

Conclusion

[85] This application is, therefore, allowed and the charges are stayed.

Sproat J. Released: April 29, 2016