R. v. R.L., 2016 ONSC 8008

CITATION: R. v. R.L., 2016 ONSC 8008

COURT FILE NO.: 6/2015

DATE: 2016-12-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

– and –

R.L. Applicant

COUNSEL:

David King, Counsel for the Respondent

G. Shawn Swarts, Counsel for the Applicant

HEARD: December 16, 2016

PUBLICATION RESTRICTION NOTICE

Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgement as the complainant may not be published, broadcast or transmitted in any manner.

The HonouRABLe Mr. Justice C. S. glithero

RULING ON SECTION 11(b) CHARTER APPLICATION

Introduction

[1] Mr. R.L. applies for a stay of proceedings pursuant to section 24 (1) of the Charter of Rights and Freedoms as the appropriate remedy for an alleged breach of his right to trial within a reasonable time as protected by section 11(b).

[2] The indictment charges one count of sexual assault and one count of touching for a sexual purpose a person under the age of 16 years, between July 13, 2001 and September 1, 2005. It also charges another two counts of sexual assault and another two counts of touching for a sexual purpose a person under the age of 16 years between September 1, 2006 and May 31, 2007. Lastly, it charges one count of invitation to sexual touching to a person under the age of 16 years between September 1, 2006 and May 31, 2007. All seven of these offences are alleged to have been perpetrated on the same female complainant who is now 20 years of age, but was between ages 5 and 10 at the relevant times. She is the applicant’s niece.

Ontario Court Proceedings

[3] Mr. R.L. was arrested on March 27, 2014. The original information was sworn March 28, 2014 and charged the seven offences mentioned above, together with nine further offences of a sexual nature alleged to have occurred between September 5, 2006 and May 23, 2007. Four of those offences were allegedly committed on a younger brother of the complainant named in the indictment. Two of those offences were alleged to have been committed in respect of a second younger brother of the complainant named in the indictment. Another charge was allegedly committed against the complainant in the charges contained in the indictment. Another was alleged to have been committed against a different young girl. Another was alleged to have been committed against the complainant in the indictment and the same second young girl, and the last charge was one of making child pornography. All of those nine charges were withdrawn during or at the end of the preliminary hearing on August 5, 2015

[4] On May 1, 2014, following a contested show cause hearing, Mr. R.L. was released on a recognizance. One condition required him to be in his residence, except for medical emergencies, attending court or meeting with his lawyer, or for purposes of traveling directly to and from and while at work, or unless he is out in the presence of the surety or in the presence of one of his two sons. Another condition prevented communication with any of the alleged victims, and another prohibited him to be in the company of or to communicate with males or females under the age of 16 years, unless in the presence of his surety or either of his two sons or as incidental to contact at work or church.

[5] Between the date of that first appearance and November 25, 2014 there were eight other appearances in the Ontario Court of Justice. Defence counsel was retained in June 2014. It appears from the record that Crown disclosure was provided incrementally, which necessitated some adjournments. Others were sought by the defence to review and properly consider the disclosure, and to review it with the client. The record before me indicates there had been an investigation of these allegations in 2008 which did not lead to any charges. It appears that some of the disclosure sought related to the 2008 investigative efforts and interviews. Perhaps because of the passage of time it seems that it took some time for the Crown to receive the material from the police, and hence delays in providing it to the defence. The record indicates that amongst the items disclosed were 15 DVDs containing statements and interviews.

[6] On November 25, 2014 counsel set January 21, 2015 for a judicial pretrial in the Ontario Court of Justice. There, the preliminary hearing was set to take place on July 15 and July 22, 2015, but counsel and the presiding pre-trial judge agreed to an interim return date to confirm whether or not disclosure was complete. On that interim date, and then again a week later, defence counsel advised that he received additional disclosure but was largely content with what had been received and agreed that the matter be adjourned to proceed on the previously set dates for the preliminary hearing.

[7] On July 15, 2015 the preliminary hearing started. Two charges were withdrawn by the Crown at the outset. Defence counsel advised that he still did not have disclosure with respect to the two young male complainants, even though he understood that statements had been given by both boys during the 2008 investigation. Accordingly, he was understandably concerned about proceeding with the preliminary hearing in respect of those charges without disclosure. The court suggested, and counsel agreed, that the preliminary hearing would proceed with the evidence of the two boys in chief to take place on the first day of the primary hearing, and the cross-examination of those two boys would be put over to the second day of the preliminary hearing so as to allow defence counsel an opportunity to prepare in the interim. It is evident from the transcript that the Crown did not have the earlier statements from the two young boys either, and it is further evident that the two young boys refused to speak to the police in preparation for the preliminary hearing. The two young boys were 17 and 15 years of age at the time of the preliminary, and both denied having seen their uncle, the accused, do anything sexually inappropriate to them, or to their sister, the complainant in the charges for which Mr. R.L. stands and indicted, or as against anyone else. The preliminary continued on July 22, 2015 for part of the day and then was adjourned to August 5, 2015. At the conclusion of the evidence, the Crown withdrew the remaining seven charges of the nine mentioned in paragraph 3 above. The accused was committed to stand trial by judge without a jury on the seven charges now contained on the indictment as described in paragraph 2 above. He was ordered to attend at an Assignment Court in Superior Court on September 22, 2015.

Superior Court Proceedings

[8] On September 22, 2015 a date for a Superior Court judicial pretrial was set for November 23, 2015, with a further appearance date set for the Assignment Court on November 24, 2015.

[9] On November 24, 2015 a three-day trial was set to commence May 30, 2016.

[10] The record indicates that in early May 2016, the Crown became aware that the complainant had just learned that she was approximately 3 months pregnant. This was disclosed to the defence. The record discloses that counsel continued to discuss the effect of the pregnancy on the upcoming trial date.

[11] On Friday May 27, 2016, the last business day before the scheduled start of the trial on May 30, the Crown brought an application for the adjournment of the trial. The court was advised that the complainant was then 19 years of age, unmarried, and had recently learned that she was pregnant and that her due date was scheduled to be in early November. The Crown further advised that the complainant was afraid that the stress of going through the trial might have a detrimental impact on the wellbeing or development of her unborn child. The Crown submitted that having to testify would be incredibly stressful on her, as she would be testifying as to allegations involving intimate matters said to have occurred when she was quite young and which involved her uncle. The court was further advised that the complainant was living with her grandparents and was afraid that her continued residence with them was at risk by reason of their expected disapproval of her pregnancy on religious grounds. The Crown filed an article from an American medical review which pointed out that studies have been done on the effect of stress on the mother’s part on the well-being of the unborn child, and concluded that the results of the various studies were contradictory and inconclusive.

[12] Counsel agreed that they had been discussing the impact of the complainant’s pregnancy for about three weeks previously, as they were waiting for the complainant to get an appointment at a hospital in Hamilton, which had a clinic of professionals trained to give advice to pregnant women, and that they were hoping to get more specific information as to the potential effects of stress, arising from having to testify at trial, on the health of the unborn baby.

[13] The defence opposed the adjournment request, pointing out that there was no affidavit evidence from the complainant, nor any specific medical evidence to support her concerns. The defence advised the presiding justice of the history of the matter, including the withdrawal of nine of the original 16 offences charged. Defence counsel made it clear that the accused was not waiving his section 11(b) rights. The presiding justice asked what a new trial date would be if an adjournment were granted and the Crown advised that the baby was due in November, so that replacement trial date would probably be at year’s end or early in 2017. The presiding justice inquired about the terms of the accused’s release, and was informed of those terms and that the Crown was prepared to consent to the removal of the house arrest term.

[14] The presiding justice endorsed the application record “Based on submissions made I am prepared to adjourn the trial because of the complainant’s pregnancy and her concern over the health of her fetus because of the stress of the trial and the nature of her evidence. The Crown and the complainant are both aware of the accused’s pretrial rights under section 11(b) of the Charter because of the adjournment. I am also prepared to grant the adjournment considering the Crown’s consent to the deletion of paragraph 2 of the accused’s recognizance of bail (house arrest). Adjourned to June 21, 2016 Assignment Court”.

[15] At the June 21, 2016 Assignment Court, as available trial dates for 2017 had not yet been provided to the trial coordinator, the matter is further adjourned to July 26, 2016. At the Assignment Court held that day, the court was advised that counsel had had discussions with the trial coordinator and that they proposed that the three-day nonjury trial be set to commence February 13, 2017. Defence counsel consented to that date. The court inquired whether there was a potential for a section 11 (b) application and the Crown responded that there had been such discussions and that if that issue is raised, a date for the application would be arranged through the trial coordinator. The date subsequently arranged was December 16, 2016 for the hearing of this application.

Application Materials

[16] By way of materials on this application, the applicant files the 21 transcripts of prior attendances at both levels of court, together with an affidavit of the applicant in which he swears that prior to his arrest he was “in the process of growing the small printing business that I operated out of my home.” He swears that the house arrest conditions made it difficult to meet existing and potential clients and to solicit new business. No financial information is provided in terms of any actual loss of income. He further swears that the bail restrictions inhibited his prior activities in hiking and cycling as he could no longer be out alone.

[17] He further advises that the police seized all of his computers, cell phone and electronics and as a result that he lost access to all of his client files and accounting records and complains that despite numerous requests, the Crown has refused to return those items to him.

[18] He also swears that he has incurred increased legal costs as a result of the delays in this case, both those relating to his opposition to the motion to adjourn, and this motion for a stay of proceedings. He further swears that the recognizance terms preventing contact with the alleged victims negatively impacted on his ability to attend gatherings of a family nature. He further states that the seized computer or hard drive contained all of his family photographs, including photographs of his deceased son and his funeral.

[19] By way of response, the Crown has filed an affidavit of the alleged victim, in which she repeats her allegations of sexual wrongdoing by her uncle, the applicant, when she was between 5 and 11 years old. She swears that it was in April of 2016 that she found out that she was pregnant, and that the pregnancy was not planned. She swears that she was 19 years old then, unmarried, and was fearful of telling her family about the pregnancy. At the time she was living at her grandparents’ home and was worried that she would be unable to continue living there because of the family’s religious views.

[20] Her affidavit indicates all these concerns were on her mind as the original trial date was approaching and that she was additionally concerned because she had read “several articles” about the effect of a pregnant mother’s stress on the health of an unborn baby. She concluded that the stress that she was feeling on herself, and her concern about what such stress might do to impair the health of her unborn baby all weighed on her mind. She had seen a local walk in clinic and a mid-wife, both of whom referred her to the Women’s Health Concerns Clinic at St. Joseph’s Hospital in Hamilton, which she understands to be a team of doctors, nurses and other health professionals trained to give support to those experiencing stress, anxiety or other difficulties during a pregnancy. She was unable to get an appointment with that clinic until August of 2016, but indicates that thereafter the clinic assisted her by helping her to deal with anxiety attacks.

[21] Her due date was October 31, 2016, but her daughter was not born until November 8, 2016 and was underweight and they remained in the hospital until November 12, 2016. She concedes that there were no medical emergencies that required hospitalization or attendance on a doctor on any emergency basis during the pregnancy. She reaffirms her fear that had she had to testify at the trial as originally scheduled the stress and anxiety she was experiencing could well have affected her daughter’s wellbeing.

[22] Neither the applicant nor the complainant were cross-examined on their affidavits.

[23] The applicant’s position is that the delay from the expected end date of the originally scheduled trial, June 1, 2016, to February 15, 2017, the expected end date of the now scheduled trial, a period of 259 days or 8 ½ months is delay entirely attributable to the Crown, by reason of its successful adjournment of the trial as originally scheduled.

The Law and Application To This Case

[24] On July 8, 2016 the Supreme Court of Canada released the judgment in R. v. Jordan, 2016 SCC 27. The majority decision specifically announced a new framework under which s.11(b) applications were to be considered, both as to cases where the charges arose before July 8, 2016 and to those cases where charges arise post-Jordan.

[25] The Ontario Court of Appeal considered the Jordan framework in R. v. Coulter (2016), 340 C.C.C. (3d) 429, 2016 ONCA 704. In paragraphs 34 through 59 of that decision, the court in my opinion set forth a very concise and useful summary of the appropriate approach. I intend to follow that summary by repeating in italics those steps that are applicable in the circumstances of this case, and to do so by reference to the paragraph numbers from the Coulter decision, which in turn reference the paragraph numbers in Jordan. My analysis will then follow under those italicized paragraphs.

Total Delay

[26] “34. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47)”. Here, that period is from March 28, 2014 to February 15, 2017, a period of 34.5 months.

Net Delay

[27] “35. Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para 66). 42. Defence delay has two components: (1) that arising from defence waiver, and (2) delay caused solely by the conduct of the defence (‘defence-caused delay’) (Jordan, paras. 61 and 63). 43. Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61). 44. Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64). Here, there is no waiver, explicit or implicit that is clear and unequivocal, and none is suggested by the Crown. Nor is there in my view any period of defense – caused delay in terms of acts of the defence that directly caused a period of delay or that can be shown to be deliberate and calculated tactics employed to cause delay, such as frivolous at applications. The Crown contends that there was two months of defence delay, as twice proceedings were adjourned at the request of the defence to consider and digest Crown disclosure. In my opinion those acts in the circumstances of this case do not constitute defence delay within the meaning of Jordan. Here, disclosure was coming out intermittently, and had to do with an old investigation.

[28] The applicant’s supplementary application record contains letters from defence counsel dated as late as Jan 26, 2015 and July 9, 2015 seeking further enumerated items of disclosure. These letters were answered by Crown counsel on February 26, 2015 and July 14, 2015 respectively. These provided answers to some defence requests, but not all. Some items remained outstanding. Just as I find it was understandable that the Crown disclosure took longer to complete because of the history to this case, I find it equally understandable that the defence needed time to consider the disclosure. Indeed, it seems obvious that even by the date of the preliminary hearing, disclosure had not been totally completed, although the crown could not disclose what it did not have, as turned out to be the case.

[29] “36. Compare the Net Delay” to the presumptive ceiling (Jordan, para. 66.)” As I find there to be no defence-caused delay, the Net Delay remains at 34.5 months, which exceeds the presumptive ceiling of 30 months in the cases of Superior Court trials.

Exceptional Circumstances

[30] “37. If the Net Delay exceeds the presumptive ceiling, it is presumptive unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discreet events and particularly complex cases (Jordan, para.71)”

[31] “46. Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69). “

[32] “47. An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceed the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).”

Discreet Event

[33] “48. The list of exceptional circumstances fall under two categories: discreet events and particularly complex cases (Jordan, para. 71).”

[34] “49. An illustration of a discreet event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, para. 72).”

[35] “50. The period of delay caused by any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).”

[36] “51. Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial or preparation time such that the delay is justified (Jordan, para. 77). The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex (Jordan, para. 81).”

[37] “52. Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required (Jordan, para. 80).”

[38] In my opinion the unplanned and unexpected pregnancy of the complainant qualifies as a discrete event. While not a medical or family emergency, it is a physical condition which caused fear on the part of the complainant that the stress of the trial could adversely affect the well-being of her unborn child. That stress was in my opinion understandable given the fact that she was 19, single, afraid of being ousted from where she lived by reason of disapproval on religious grounds arising from her pregnancy, and because such stress was heightened due to the nature of the evidence she would be called upon to give at trial. The event of the pregnancy was not reasonably foreseeable by the Crown, nor in my view was it reasonably remedied other than by way of an adjournment. Because of the period of time remaining until the anticipated birth of the child, and allowing for a short recovery period, a replacement trial date could not reasonably be arranged until the end of 2016 or shortly thereafter. Here the delay necessitated by the discrete event, the pregnancy, resulted in an adjournment of approximately 8.5 months.

[39] Delay caused by pregnancy has been considered previously. In R. v. Curry, 2016 BCSC 1435, a post-Jordan case, the pregnancy of Curry’s co-accused delayed the resumption of the trial for approximately 2 months. At paragraph 116 it was held that this delay caused by ‘pregnancy’ was an “exceptional circumstance”. The due date fell 3 days before the trial resumption date and an adjournment of several weeks was held to fall within the “exceptional circumstance” delay.

[40] In R. v. Duncan, 2012 SKQB 362, 2012SKQB 362, (pre-Jordan), a delay of 4 months occurred because of the pregnancy of the complainant. Her affidavit swore that it was a difficult pregnancy. The court, under the Morin regime, found the delay to be neutral.

[33] In my opinion, the situation arising as a result of the pregnancy was indeed an exceptional circumstance. It was obviously outside of the Crown’s control as being reasonably unforeseeable, and reasonably unavoidable, and because it was a situation that could not be reasonably remedied given the late stage at which the circumstance arose, namely on the eve of trial. It falls under the discrete event category in respect of which the Jordan judgment anticipates that medical or family emergencies, on the part of any participant, would generally qualify. While not meaning in any way to suggest that pregnancy falls within the example given of illness, it is a physical condition that was, on the record before me, unplanned and unforeseen by the complainant, and hence by the Crown.

[34] Arising as it did, some 2 or 3 weeks before the adjournment request according to both counsel on the application before me, it arose at a stage where the problems created by the discrete event could not reasonably be remedied by the Crown. The complainant will be the main Crown witness at the trial, without whose evidence the prosecution will fail. The difficulty arose at a time when the complainant was trying to get in to see medical practitioners that could further advise her as to the effects of stress on both her and her fetus, but she had by then been unable to see them. The complainant was 19 years of age, and expected to testify to matters when she was much younger. Those matters related to intimate and personal events, and involved another family member. The complainant was unmarried and living with grandparents whose religious beliefs caused her concern as to whether or not she would be able to continue to reside with them. On the record before me, the complainant had become stressed as a result of articles she had read indicating that the stress upon an expectant mother may adversely affect the development of her fetus. The Crown had obtained, and filed on the adjournment application, an article in which the authors discussed various studies that had been conducted on the effects of stress on the part of a mother upon her unborn child, but which had reached no definite conclusions one way or the other as to the nature or the extent of any adverse effects.

[35] Hindsight might suggest that the original trial date might have been adjourned for a shorter period of time so as to allow for the acquisition of better medical advice as to the possible or likely effects of the mother’s stress on the unborn child, but even that is speculative in that the amount of time that may have taken would have advanced the pregnancy that much further. In my opinion, the Crown has discharged the burden of showing the delay of the trial date by reason of the complainant’s pregnancy, and the potential for risk to the child, qualifies as a “discrete event” type of “exceptional circumstance”. Had it not been for the adjournment necessitated by the pregnancy, the trial would have been completed in 26 months and thus would have fallen below the presumptive ceiling.

[36] When I subtract the delay caused by the discrete event, the pregnancy, from the Net Delay, I am left with a ‘Remaining Delay’ of 26 months.

Complex Cases

[37] In terms of the complex case category of exceptional circumstance, in my estimation this case comes nowhere near qualifying. While the charges are serious, the estimates of counsel for the time required for a preliminary hearing was 2 days. It actually stretched over parts of 3 days, but as best I can estimate would not have exceeded the 2 days estimated if not interrupted by other matters. The time estimate for the time required for trial in Superior Court was and remains 3 days in total, which in this court constitutes one of the shorter cases.

Remaining Delay Under Presumptive Ceiling

[38] “53. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings (“defence initiative”); and (2) the case took markedly longer that it reasonably should have. Absent both of these two factors, the s. 11 (b) application must fail (Jordan, para. 82). 54. Stays beneath the presumptive ceiling should be granted only in the clear cases (Jordan, para. 83). 55. The new framework applies to cases currently in the system (Jordan, para 94). The analysis of transitional cases differs depending upon whether the Remaining Delay exceeds or falls below the presumptive ceiling. 58. For cases currently in the system in which the Remaining Delay falls below the ceiling, the two things that the defence must establish (ie defence initiative and whether the time the case took markedly exceeds what was reasonably required) must also be applied contextually, sensitive to the parties reliance on the previous state of the law (Jordan, para. 99). 59. Further, institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework will be a component of the reasonable time requirements (Joran, para. 100).”

[39] I see nothing in the record which illustrates defence initiative in the sense of a sustained effort to expedite matters. There was no mention of concern about delay or of a desire to foster s.11(b) rights until the fact of the pregnancy became known. When viewed contextually, however, in the pre-Jordan regime, I don’t believe the defence was under an onus to do so. Defence initiative, as referred to in Jordan, always worked to an accused’s advantage in the s.11(b) analysis, as it did in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 and in R. v Godin, 2009 SCC 26. But it was not a requirement. The defence here is entitled to rely on the former state of the law in this regard.

[40] As to the defence onus to show that the time the case took was markedly in excess of what was reasonably required, again the contextual application requires consideration of the previous state of the law. The parties disagree somewhat as to the inherent time requirements of this case. The applicant takes the position that the period from the date of the charge, March 28, 2014 to the date of the judicial pre-trial conference on January 21, 2015 is inherent delay. It is a period of approximately 10 months. I consider the period from the date of the charge to November 25, 2014, when the preliminary hearing date was set, to be part of the inherent requirements of this particular case, as that is when the parties were ready to set a date. From that day to the date of committal for trial, a period of approximately 8 1/2 months, is in my view, institutional delay.

[41] The defence contends that the period from the judicial pre-trial to March 25, 2015, when the previously provided preliminary hearing dates were confirmed to proceed, should count as Crown delay, as disclosure was still being made. I don’t agree, as no time was lost. The preliminary hearing dates were set on November 25, 2015, and proceeded as they had been set. The interim appearance to confirm disclosure and readiness to proceed did not cause a delay.

[42] The Crown contends that the accused took too long to retain counsel as that should have been done by May 6, 2014, the date of his second appearance in court. The Crown says that the 29 days between then and retention of counsel by June 3, 2014 is defence delay. Given that disclosure was by no means complete by then, I don’t think that period resulted in any actual delay. Additionally, the Crown says it would have been reasonable to allow 60 days for the defence to review the disclosure and says that 52 days of the delay between June to October 14, 2014 ought to be considered as defence delay. It seems to me that in a fairly straightforward case the amount of time the defence requested to consider and review disclosure in this case was longer than would normally be required. I bear in mind however that there is an onus on the Crown to make timely disclosure and in this case it appears that disclosure was made incrementally on May 6 and June 24, 2014, but again on April 1, April 27, July 2 and July 13, 2015. As indicated previously, it appears that much of the delay in making disclosure arose from the fact that the 2008 investigation was thought, at least by the defence, to have some potential relevance. Given the historical nature of the offences charged, including the nine charges subsequently disposed of at the preliminary hearing, it seems reasonable to me that the defence wanted to know what witnesses had said back in 2008.

[43] Within the circumstances of this case, to the extent that they are made available and known to me by the record, I am unable to conclude that the period from the date of the charge to November 25, 2015 was other than the inherent time required by both sides of this case to get to the position where they were able to proceed to a hearing before the Ontario Court of Justice.

[44] From November 25, 2014 to August 5, 2015 when the preliminary hearing was completed, a period of approximately eight and a half months, falls within the period of institutional delay found to be within the acceptable range for cases in the Ontario Court of Justice under the Morin framework.

[45] The committal for trial was on August 5, 2015. The Superior Court in this region has repeatedly requested that preliminary hearing judges order the accused to attend at the next Superior Court Assignment Court date unless that falls within three days of committal. In this case the accused ought to have been ordered to appear in Superior Court at the Assignment Court on the last Friday in August, 2015. Here the defence requested instead that the accused be ordered to appear at the September 2015 Assignment Court, on September 22. This period of almost one month delay lies at the feet of the defence.

[46] The period from September 22, 2015 through to the judicial pretrial on November 23, 2015 in Superior Court is inherent time. Once the parties were ready to set a trial date, on November 24, 2015, the time from then to the expected end of the scheduled trial was just over six months, again a period of time falling within the 6 to 8 months guideline offered in Morin as being acceptable or Superior Court matters.

[47] The additional 8 ½ months which resulted from the pregnancy of the complainant, from the expected end date of the first trial on June 1, 2016 through to the expected end date of the newly scheduled trial on February 15, 2017 is accounted for under the discrete event type of exceptional circumstances considered earlier.

Prejudice

[48] Prejudice to the accused occasioned by the delay is to be considered in transitional cases: R. v. Williamson, 2016 SCC 28 at para. 30; Morin at page 787-8. Here the accused was not in custody but was subject to restrictive provisions of bail amounting to partial house arrest until that term was deleted on May 27, 2916. As the Crown points out, there was no application for a bail review, nor any informal request made to the Crown to consent to a bail variation, when nine of the 16 charges were withdrawn at the preliminary hearing. The defence also cites as prejudicial, the fact that the accused’s computer was seized and has never been returned. The defence requested the return of the computer by letter dated August 24, 2015. The Crown advises there are illicit materials in the computer which prevented the return of the computer to the accused. While the accused claims there were business files on the computer that would have been helpful to him in carrying on his business, I am provided with no financial information as to the extent of any business loss. The accused also claims prejudice from the fact that the computer contains files relating to the death of his young son. But again, as the Crown points out, there was never a request for copies of files from the computer for either business or personal use. Nor was there an offer by the Crown to make such copies available in that the computer itself could not be returned.

[49] In my assessment, the prejudice to the applicant over and above the natural prejudice arising from being charged, was of some significance but could likely have been materially reduced if steps had been taken to vary the bail and to seek copies of the computer files sought.

Conclusion

[50] The court in Morin made it clear that the time periods outlined were guidelines and not limitation periods. It was also made clear that each case must be assessed on its own facts. This being a transitional case, with the Remaining Delay falling below the presumptive ceiling, the onus is on the applicant to show that the delay here markedly exceeded what was reasonably required. As indicated in Jordan at paragraph 83, stays in cases below the presumptive ceiling ought to be granted only in clear cases. At paragraph 106 of the applicant’s factum it is conceded that but for the May 27, 2016 adjournment, the trial could have been completed within the timelines set out in Jordan, and within the timelines suggested by Morin.

[51] In my opinion that onus of demonstrating that the time the case took is markedly in excess of what was reasonably required, has not been satisfied in the circumstances of this case. For these reasons the application is dismissed.

“C. Stephen Glithero”

C. Stephen Glithero J.

Released: December 29, 2016