R. v. Quinn, 2016 ONSC 4173

CITATION: R. v. Quinn, 2016 ONSC 4173

COURT FILE NO.: CJ8557

DATE: 2016-06-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ROBERT QUINN

Applicant

Roger Dietrich, for the Crown

Corbin Cawkell, for the Applicant

HEARD: June 21, 2016

The Honourable Justice C.D. Braid

REASONS ON PRETRIAL APPLICATION

I. INTRODUCTION

1Robert Quinn (“Quinn”) is charged on a multi-count Indictment arising out of his arrest on various gun charges. He has brought an application seeking a stay of proceedings on the basis that his right to be tried within a reasonable time has been infringed. The total delay in this matter is approximately 17 months. Quinn has been in custody since his arrest on these charges.

II. FACTS

2On May 28, 2015, Quinn was wanted by the Ontario Provincial Police on an outstanding warrant. The Waterloo Regional Police had further information that Quinn might be in possession of a handgun.

3Cst. Tamayo prepared an application for a search warrant for Quinn’s residence to search for the handgun. The warrant was authorized that afternoon and the Information to Obtain (“ITO”) in support of the warrant was sealed because it contained information from confidential informants.

4At the same time that Cst. Tamayo was preparing the application for a warrant, police began to conduct surveillance on Quinn.

5Cst. Tamayo’s warrant was never executed. Police arrested Quinn at his worksite on the strength of the outstanding arrest warrant from the OPP. Police searched Quinn’s duffel bag and located a loaded revolver. Quinn was subsequently charged with 10 charges in relation to the firearm, including possession of a loaded prohibited firearm and possession of a firearm while being subject to a prohibition order.

6Quinn waived his right to a preliminary hearing and consented to committal for trial on September 22, 2015. At the Superior Court judicial pretrial on January 5, 2016, it was determined that four days should be set for the pretrial motions (at least 60 days prior to jury selection) and then one week for a jury trial. Material in support of the pretrial motions had to be filed at least 30 days in advance of those motions. Within the days immediately following the judicial pretrial, the following dates were offered by the trial co-ordinator:

i. February 16-19 (pretrial motion dates) and the week of June 20, 2016 (trial). Defence counsel was unavailable; it was unclear whether the Crown witnesses would have been available.

ii. March 8-11 (pretrial motion dates) and the week of June 20, 2016 (trial). Defence counsel was unavailable. Crown was willing to make the witnesses available.

iii. July 25-28 (pretrial motion dates) and the week of October 17, 2016 (trial). Both defence counsel and Crown not available.

iv. August 22-25 (pretrial motion dates) and the week of October 17, 2016 (trial). Of the four options, this was the only one that worked for defence counsel.

7Defence counsel Mr. Cawkell relies on an affidavit that sets out his availability for trial as of December 18, 2015, which the affiant believes to be counsel’s schedule at the time that this trial was booked. The affidavit states that Mr. Cawkell was available on January 25, 2016, and says that this was his first available trial date. However, at the time that trial dates were canvassed in early January, Mr. Quinn had previously been remanded to January 28 to set his date for trial. In addition, January 25 was too soon to permit the preparation and filing of pretrial materials. At the time of arguing this application, defence counsel properly conceded that January 25 was not the first available trial date.

8The affidavit also states that Mr. Cawkell was available for the weeks of March 28 and April 4, 2016. Arguably, one of those weeks could have been used for pretrial motions (although the trial date would have had to be scheduled at least 60 days later). These dates are after the first pretrial motion dates offered by the court, which were rejected because Mr. Cawkell was unavailable. Although Mr. Cawkell had additional dates in his schedule when he was available, he did not make further efforts to engage the trial co-ordinator or the Crown in discussion to secure earlier dates.

9The following is a chronology of relevant events in this case:

Date	Details of the Appearance or Event
May 28, 2015	Quinn arrested on an outstanding arrest warrant from the OPP. The Waterloo Regional Police seized a loaded handgun. Original ten-count Information sworn. Cst. Tamayo applied for and obtained a Search Warrant for Quinn’s residence, which was not executed. The ITO in support of that Search Warrant was sealed to preserve the confidentiality of informant information.
May 29, 2015	1st appearance in Bail Court in the Ontario Court of Justice (OCJ). Matter adjourned to June 2, 2015.
June 2, 2015	2nd appearance in Bail Court. Matter adjourned to June 11, 2015.
June 10, 2015	Replacement Information sworn.
June 11, 2015	1st appearance in set date court. Replacement Information filed. Student for defence counsel Corbin Cawkell spoke to matter and adjourned to June 18, 2015 to set a date for a bail hearing.
June 18, 2015	2nd appearance in set date court. Mr. Cawkell appeared and requested disclosure. Initial bail brief received, which consisted of a synopsis and a replacement Information. Matter adjourned to July 2, 2015, to confirm Legal Aid retainer and review initial disclosure.
July 2, 2015	3rd appearance in set date court. Matter remanded to July 9, 2015, to confirm Legal Aid retainer.
July 9, 2015	4th appearance in set date court. Matter remanded to July 16, 2015, to confirm Legal Aid retainer.
July 16, 2015	5th appearance in set date court. Duty Counsel confirmed that defence counsel Corbin Cawkell was retained and requested more substantial disclosure. Crown checked brief and stated that some additional disclosure needed to be vetted. Matter adjourned to July 24, 2015, for additional disclosure.
July 24, 2015	6th appearance in set date court. Duty Counsel stated that defence counsel requested Quinn’s disclosure to be couriered to office but had not yet received it. Matter adjourned to July 31, 2015, and disclosure couriered to defence counsel.
July 28, 2015	Disclosure request letter sent from defence counsel to Kitchener Crown’s office. Counsel requested a number of outstanding disclosure items including the Search Warrant and Constable Tamayo’s ITO in support of the warrant.
July 31, 2015	7th appearance in set date court. Duty Counsel stated that defence counsel had requested additional disclosure and would be scheduling a Crown pre-trial. Matter adjourned to August 7, 2015.
August 7, 2015	8th appearance in set date court. Duty Counsel stated that defence counsel was still awaiting additional disclosure. Matter adjourned to August 14, 2015.
August 10, 2015	Crown pre-trial scheduled. Defence counsel did not call Crown’s office for scheduled pre-trial, so it was rescheduled.
August 14, 2015	9th appearance in set date court. Duty Counsel stated that defence counsel was still awaiting outstanding disclosure. Matter adjourned to August 21, 2015.
August 21, 2015	10th appearance in set date court. Matter adjourned to September 4, 2015. Crown pre-trial to be conducted in the interim.
August 31, 2015	Crown pre-trial conducted with Crown, which was not fruitful as there was outstanding disclosure.
September 4, 2015	11th appearance in set date court. Duty Counsel stated that the Crown pre-trial was held and that a Judicial pre-trial was scheduled for September 22, 2015. Remanded to September 14, 2015.
September 14, 2015	12th appearance in set date court. Quinn voiced concern that defence counsel had not yet received full disclosure. Crown stated that two requests to the police for outstanding disclosure had been made, the last one sent on August 31, 2015. Matter adjourned to Judicial pre-trial date of September 22, 2015, to be spoken to following the JPT.
September 21, 2015	Constable Tamayo informed WRPS Court Case Management that he had not previously received the Crown requests for disclosure sent July 28 and August 31, 2015.
September 22, 2015	13th and final appearance in OCJ. JPT conducted in front of Justice Hearn. Outstanding disclosure discussed. Quinn elected to have a trial before a judge and jury; waived his right to a preliminary hearing; and consented to committal on all 11 counts on the replacement Information. Defence counsel stated that he was missing substantial disclosure. Matter remanded to Superior Court of Justice (SCJ) for assignment court on October 30, 2015, for Crown to provide outstanding disclosure.
October 5, 2015	Order obtained to unseal DC Tamayo’s ITO.
October 23, 2015	Matter flagged by Waterloo Region Crown Attorney as having possible sensitive component due to privileged information in ITO. Crown Mehkeri assigned to prosecution. Indictment drafted.
October 26, 2015	Disclosure substantially complete including Arresting officer’s notes (some officer notes sent by fax). The ITO and unexecuted search warrant remained outstanding. No further police notes required; requested photos and video made available.
October 27, 2015	I/O asked to set up a meeting with assigned Crown in order to review ITO for vetting prior to disclosure.
October 30, 2015	1st appearance in SCJ Assignment court. Agent for defence counsel advised that some outstanding disclosure was received and needed to be reviewed. Matter adjourned to November 27, 2015.
November 4-24, 2015	Ongoing consultation with CI Handler #2 and a Senior Crown Attorney regarding privileged information in ITO.
November 5, 2015	Disclosure request sent from defence counsel to Kitchener Crown’s office. Counsel noted that he was still missing Constable Tamayo’s complete notes including his warrant and ITO in support of the warrant.
November 5, 2015	Consultation with CI Handler #1 in relation to privileged information complete.
November 9, 2015	Reply to disclosure request from Crown Mehkeri stating that she was the assigned Crown. Ms. Mehkeri confirmed that the ITO and warrant existed, but questioned the relevance of both items. She asked for a further explanation of why defence counsel was seeking this disclosure.
November 10, 2015	Defence counsel wrote to Crown Mehkeri requesting that she confirm her position regarding whether the Crown will be relying on any information that Quinn was in possession of a firearm prior to one being seized. Counsel stated that, once this position is confirmed, a JPT can be scheduled.
November 27, 2015	2nd appearance in SCJ Assignment Court. Agent for defence counsel stated he still required disclosure, including the search warrant. Agent for defence counsel stated that he would like to set a JPT, and asserted Quinn’s Section 11(b) rights. Crown stated that the assigned Crown was working on Quinn’s disclosure request. Matter adjourned to December 18, 2015 in SCJ for an update on the status of disclosure. JPT tentatively scheduled for December 18.
November 30, 2015	Letter from Crown Mehkeri to defence counsel stating that the Crown will be providing copies of the ITO and search warrant. Ms. Mehkeri advised that some time was required for vetting purposes.
December 1, 2015	Final vetting of the ITO was completed using .pdf vetting software to ensure integrity of redaction.
December 2, 2015	Crown Mehkeri provided vetted copies of DC Tamayo’s unexecuted ITO and search warrant.
December 18, 2015	3rd appearance in SCJ Assignment Court. Defence counsel confirmed that he had received the disclosure that he was looking for, and that the disclosure was complete. JPT scheduled for January 5, 2016. Matter remanded to January 29 to set trial dates.
January 5, 2016	JPT conducted.
January 6, 2016	Further disclosure received including certificate of analysis and copy of firearm prohibition order.
January 6-12, 2016	Email correspondence between Crown, defence counsel, and Kitchener SCJ Trial Coordinator regarding setting of trial and pretrial dates. Ultimately, pretrial motion dates of August 22-25, 2016, and trial dates beginning October 17, 2016, were agreed upon.
January 29, 2016	4th appearance in SCJ Assignment Court. Pretrial motion dates set for August 22-25 and trial dates commencing the week of October 17, 2016. (Date for this 11(b) application was scheduled at a later time.)
April 5, 2016	Further disclosure received including the expert reports regarding the firearm.
July 26, 2016	Written Application materials to be filed.
August 22-25, 2016	Pre-trial motions are scheduled to be argued.
October 17, 2016	Week-Long Jury Trial is scheduled to proceed.

III. ANALYSIS

A. Purpose of Section 11(b)

10Section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) provides that “any person charged with an offence has the right to be tried within a reasonable time.”

11The primary purpose of s.11(b) is the protection of the individual rights of the accused. There is also a secondary societal interest: see R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at p. 12.

12In terms of the secondary societal interest, 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: see R. v. Morin.

13There is also a societal interest “in ensuring that those who transgress the law are brought to trial and dealt with according to the law." 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: see R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199; R. v. Morin.

14McLachlin J., concurring in Morin, explained at para. 86 the practical considerations underlying an accused’s 11(b) rights:

When trials are delayed, justice may be denied. Witnesses forget; witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

15Before granting the relief sought by the applicant, a stay of proceedings, the court must be satisfied that the interests of both the accused and society in a prompt trial outweighs the societal interest in bringing the accused to trial: see R. v. Morin, at p. 30

16When determining whether the right to be tried within a reasonable time has been denied, the court is not to apply a mathematical or administrative formula; rather, it is to arrive at a judicial determination by balancing the interests the section is designed to protect against the factors which lead to the delay or are the cause of the delay: see R. v. Morin, at p. 13; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3.

B. Burden of Proof

17The applicant has the ultimate or legal burden of proof throughout, although the evidential burden of advancing evidence or argument may shift depending on the circumstances of the case. However, it is seldom necessary or desirable to decide this question on the basis of burden of proof. It is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors: see R. v. Morin, at p. 14.

C. Factors in Assessing Reasonableness of the Delay

18The court should consider the four factors set out in R. v. Morin when assessing the reasonableness of the delay:

a) The length of the delay;

b) Waiver of time periods;

c) The reasons for the delay, including:

i) inherent time requirements of the case;

ii) actions of the accused;

iii) actions of the Crown;

iv) limits on institutional resources;

v) other reasons for delay; and

d) Prejudice to the accused.

D. Application of the Factors to the Case Before the Court

a) Length Of The Delay

19The court is to examine the period from the date an Information is sworn to the anticipated end of the trial. In the case before the court, the charges were laid in May 2015 and it is expected that the pretrial motions will commence with the jury trial in October 2016. Therefore the delay in this case is 17 months.

20An inquiry into unreasonable delay should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. In cases where an accused is in custody, a shorter period of delay will raise the issue of whether the length of the delay is unreasonable: see R. v. Morin, at p. 14.

21Quinn waived his right to a preliminary inquiry and consented to his committal after four months in the Ontario Court of Justice. He has been in custody since his arrest. Defence counsel argues, in those circumstances, the 17 months of total delay are prima facie excessive, which requires the court to make an inquiry. On the other hand, the Crown argues that the delay of 17 months falls within the Morin guideline of 14 to 18 months for trials heard in Superior Court.

22In my view, 17 months is within the guidelines set out by Morin. However, each case must be determined on its merits, and the guideline is not to be applied in a purely mechanical fashion. In light of the fact that Quinn has been in custody since his arrest and because he waived his preliminary hearing, I find that it is appropriate to conduct an inquiry into the delays in this case.

b) Waiver Of Time Periods

23In order for any time periods to have been considered waived, the waiver must be clear, unequivocal, and with full knowledge of one’s rights and the effect that the waiver will have on those rights. There has been no waiver in this case.

c) Explanation For The Delay

i) Inherent Time Requirements

24There are inherent time requirements involved in each criminal case which inevitably leads to delay. Criminal cases have intake requirements including the retention of counsel, bail hearings, disclosure and pre-trial proceedings including the holding of a pre-trial conference which as of necessity cause delay. Intake functions are considered neutral in the s.11(b) calculation: see R. v. Morin, at pp. 16-17

25As the number and complexity of these activities increase so does the amount of delay that is reasonable. The period of time required will be influenced by local practices and conditions: see R. v. Morin, at p. 17.

26When a case involves a two-stage process at both levels of trial court, this will involve additional inherent delays such as further pre-trial meetings and added court dates. An additional period for inherent time requirements must be allowed for this second stage: see R. v. Morin, at p. 17.

27The usual period of intake in the Ontario Court of Justice is two to three months: see R. v. Osei, [2007] O.J. No. 768 (S.C.). In the case before the court, I find that the first two months in the Ontario Court of Justice can be attributed to inherent time requirements. This permitted the accused to retain defence counsel; to apply for bail, if appropriate; and to obtain and review disclosure.

28Once Quinn was committed to trial in Superior Court, the setting of the judicial pretrial was delayed while the Crown vetted the ITO for the unexecuted warrant. A portion of this period was part of the inherent process, which I have explained in more detail below under “Actions of the Crown”.

29Once the disclosure was provided on December 2, 2015, the parties scheduled a judicial pretrial and trial dates were set on January 29, 2016. A judicial pretrial is a reasonable and necessary case management tool. I find that the time between December 2 and January 29, 2016 (almost two months) can also be attributed to the inherent time requirements for the judicial pretrial and trial setting process to occur in the Superior Court in this jurisdiction.

ii) Actions of the Accused

30All actions by the accused which may have caused delays are to be considered in the final determination of the reasonableness of the delay. For example, adjournments which do not amount to waiver are to be considered in this heading: see R. v. Morin, at p. 17.

31In this case, Quinn moved this case forward quickly through the lower court level.

32The court in Morin stated that attacks on search warrants or other pretrial motions would fall into the category of actions of the accused. In this case, Quinn is challenging the reasonableness of the warrantless search and seizure. He is advancing four days of pretrial motions that had to be scheduled to be argued 60 days in advance of the jury trial. Materials in support of the pretrial motions must be served 30 days in advance of the motions, which also added to the time required for that process. Although it is the accused’s right to advance those legal challenges, the pretrial motions added a minimum of 90 days to the time requirements before a jury trial could commence, which necessarily increased the amount of time until the end of trial. His election to have a trial by jury also attracts longer inherent delays due to additional resources required.

33Lawyers’ schedules must be accommodated to a reasonable degree and are part of the inherent time requirements of each specific case. As the Supreme Court of Canada pointed out in Morin:

Each case will bring its own set of facts which must be evaluated. Account must also be taken of the fact that counsel for the prosecution and the defense cannot be expected to devote their time exclusively to one case.

34In this case, the Superior Court of Justice offered earlier trial dates, but defence counsel was unavailable. Given the comments of the Supreme Court of Canada in Morin, it is reasonable to classify the time between June 20, 2016 (the first jury trial dates offered) and October 17, 2016 (the actual trial date) as neutral time.

iii) Actions By The Crown

35Actions by the Crown which may have caused delay are also to be considered when determining the reasonableness of the delay. Examples include requested adjournments, as well as failure or delay in providing disclosure: see R. v. Morin, at p. 18.

36In this case, the disclosure process for the ITO in support of the unexecuted search warrant contributed to the delay. There was a time period before the Crown started the process of disclosure. The Crown initially questioned the relevance of the requested disclosure. The issue of disclosure was further complicated by the fact that the ITO was sealed and needed to be vetted to protect the confidentiality of informants. The Crown had to make an application to unseal the ITO and wait for copies to be provided by the court.

37The relevance of the ITO was an issue that was not immediately apparent in this case. This was not a case like R. v. Osei where the search warrant was central to the finding of the weapon. In the case before the court, the warrant was not executed and therefore there could be no application by the accused to exclude evidence seized during the execution of that warrant.

38Without making a finding on the relevance of the ITO as disclosure, I find that it was appropriate for the Crown to assess whether the disclosure of the ITO was relevant and then to carefully vet the disclosure that contained informant information. It is important not to deter the Crown from proceeding carefully, so as to avoid errors in disclosure that is improperly vetted. I agree with the Crown that two months was an appropriate time period to unseal, assess and redact the ITO. These two months shall be treated as inherent time requirements in this case.

39That said, the Crown and/or the police took longer than necessary to start the process of disclosing the ITO. It was requested by defence on July 28, 2015, and it was not provided until four months later. Part of the delay appears to have been a breakdown in communication of disclosure requests between the Crown’s office and the police, which caused a delay in the commencement of the vetting process. I therefore attribute two months of the delay to the Crown.

iv) Limits on Institutional Resources

40Institutional delay is the period of time that starts to run when the parties are ready to proceed to trial but the system cannot accommodate them. Ideally, there would be no delays in bringing an accused to trial; but in reality, some allowance must be made for institutional resources: see R. v. Morin, at p. 18

41There is a constitutional obligation on governments to ensure sufficient resources to prevent unreasonable delay. With this in mind, Sopinka J. stated in Morin:

There is a point in time at which the court will no longer tolerate delay based on the plea of inadequate resources. This period of time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay.

42In Askov, the Supreme Court set the guideline for an acceptable level of institutional delay for Superior Court at 6-8 months between committal and trial. In Morin, the court accepted the Askov guideline, and suggested a guideline period of institutional delay between 8 to 10 months for Provincial Courts. These guidelines were recently endorsed by the Supreme Court of Canada in Godin, for a total guideline period of between 14 and 18 months.

43The timelines are to be treated as guidelines and not as a fixed limitation period to be applied in a mechanical fashion. The court in Morin also explained that the “suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances.”

44At the time of his judicial pretrial in the Ontario Court of Justice in September of 2015, Quinn elected trial by judge and jury. He waived his preliminary hearing and was committed for trial in Superior Court.

45As of January 2016, the first available dates offered for the jury trial were in June of 2016. Defence counsel could have been available on other dates during that time that the court could not accommodate.

46Once the ITO was disclosed on December 2, a judicial pretrial was held a month later and trial dates were canvassed by email. The trial dates were confirmed at Assignment Court at the end of January 2016.

47This represents a delay of nine months from the date of committal to the first jury trial date offered. Two months are attributable to institutional delay.

v) Other Reasons for Delay

48There has been no other delay which requires explanation.

vi) Calculation of Total Delay

49The following chart reflects the findings that I have made regarding the attribution of delay in this case:

Date	Time	Description	Delay Type
May 28 to July 28, 2015	2 months	Intake/Inherent Time Requirements for disclosure and first appearances in OCJ.	Neutral
July 28 to October 5, 2015	2 months	Defence counsel made first request for ITO. Crown pretrials scheduled. On the first occasion, counsel did not call or attend. On the second occasion, pretrial was not fruitful as disclosure was outstanding. On September 21, OIC advised that he had not received Crown disclosure requests sent July 28 and August 31, 2015. On September 22, 2015, JPT held with Justice Hearn. Prelim waived and consent committal.	Crown
October 5 to December 2, 2015	2 months	Inherent Time Requirements Application to unseal ITO brought October 5, 2015. Crown taking numerous steps to unseal and redact ITO with informant issues.	Neutral
December 2, 2015 to January 29, 2016	2 months	Inherent Time Requirements to hold JPT and attend Assignment Court to set trial dates in SCJ.	Neutral
January 29 to June 20, 2016	3 months	Pretrial Motions Time Requirement (pretrial motions must be brought 60 days in advance of a jury trial and material filed in support of motion must be filed 30 days in advance of the motion).	Accused
	2 months	Additional delay to first available jury trial date offered by court	Institutional
June 20 to October 17, 2016	4 months	Dates between first available jury trial offered by court and actual trial date.	Neutral

d) Prejudice To The Accused

50There may be an inference of prejudice based on the length of the delay. The longer the delay the more likely that this inference will be drawn: see R. v. Morin, at p. 23.

51Quinn has been in custody since he was arrested on May 28, 2015. He has been incarcerated at Maplehurst Correctional Complex in Milton, Ontario; at Central East Correctional Centre in Lindsay, Ontario and the Toronto South Detention Centre in Toronto, Ontario. He estimates that he has been on “lock down” due to staffing issues at the facilities for at least half his time in custody. He states that he has been in segregation during a portion of this time, although it is unclear for how long. He says that he has been threatened while in custody.

52I find that Quinn has suffered real prejudice.

E. Balancing the Individual Interest with the Societal Interest

53Charter remedies must be proportional, balancing the severity of the infringements with the collateral effects on society and the administration of justice. The Supreme Court of Canada has recognized in its s. 11(b) jurisprudence that the seriousness of the charges in question increases the societal interest in seeing a matter proceed to trial. As McLachlin J. noted in her concurring judgement in Morin, at p. 13:

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

54When a person is charged with serious gun offences, there are strong societal interests in ensuring that the accused be tried for the offences charged. A stay would effectively and permanently bring to an end the criminal litigation, precluding a trial on the merits of the case.

55The Supreme Court in Godin noted that the mere fact that guidelines were substantially exceeded in that case does not, on its own, make the delay unreasonable. In that case, the court noted that what made the considerable delay unreasonable was the fact that, in addition to the delay, the case was a straightforward one with few complexities and requiring modest amounts of court time. In that case, virtually all of the delay was attributable to the Crown and was unexplained, let alone justified; and defence counsel had attempted to move the case ahead faster.

56The court must conduct a final balancing of the factors outlined above and take a holistic approach in assessing whether the overall delay is reasonable. Here the court should consider the purposes underlying s. 11(b), the rights of the accused, and the public interest in the prompt and fair administration of justice along with the strong societal interest in having serious charges tried on their merits: see R. v. Godin.

57I have taken into consideration all of the factors set out above, including the fact that the accused has suffered real prejudice. In the case before the court, I find that the delay was reasonable. I make that finding for the following reasons:

i. The police obtained, but did not execute, a search warrant. The disclosure request for the ITO in support of that warrant was not a clear-cut issue.

ii. The ITO was sealed because it contained informant information. The vetting of the ITO required the assignment of a senior Crown to take over carriage of the matter and to unseal and vet the ITO. The Crown had to consult with the affiant and two informant handlers to review the vetting process.

iii. The Superior Court offered four different trial date options, but defence counsel was only available for the October trial dates.

iv. The four days of pretrial motions had to be scheduled at least 60 days in advance of the trial and required materials to be filed 30 days in advance of those motions. These requirements added to the time periods before a trial date could proceed.

v. The Crown delay is two months, which is not excessive and has been explained. Human error played a part in this delay, and the issue was addressed once it was discovered. It will be the rare case where it will not be possible to conclude that the necessary intake functions could have been performed more quickly and efficiently. Some sensitivity must be applied to common practical realities and demands in a busy criminal justice system, which is sometimes subject to human error: see R. v. Ignagni, 2013 ONSC 5030, [2013] O.J. No.3531 (S.C.), at para. 31.

vi. The institutional delay is two months, which is reasonable.

IV. DISPOSITION

58In the result, I find that the delay in this case was reasonable. I have come to this conclusion without the necessity of resorting to the burden of proof. The applicant’s rights under s.11(b) have not been violated and the application is dismissed.

Braid J.