Court File and Parties

Court File No.: CR-16-72 Date: 2017/04/20 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Marek Albinowski Wladyslaw Pipien Robert Fitzsimmons, Accused

Counsel: Jeannine Plamondon, Counsel for the Crown John Sheard, Counsel for Marek Albinowski Robert Miller, Counsel for Wladyslaw Pipien Donald W. Johnson, Counsel for Robert Fitzsimmons

Heard: March 20, 2017

Before: Leroy, j.

Ruling on s. 11(b) Charter Application

[1] This application concerns the right to be tried within a reasonable time guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (Charter). The interests are as follows: The Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. The public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs. An efficient criminal justice system is important. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are high - R. v. Jordan 2016 SCC 27; R. v. Morin (1992), 71 C.C.C. (3d) 1; R. v. Askov (1990), 79 C.C.C. (3d) 273.

[2] The Court in Jordan cited the culture of complacency towards delay that infiltrated the criminal justice system under the Morin watch as the result of retrospective analysis that was flexible to the point of impotence.

[3] Implementation was modified in Jordan. The objectives remain the same.

Overview

[4] The three accused are alleged to have conspired to smuggle ten Polish nationals from Canada into the United States. They are charged with conspiracy to commit human smuggling contrary to sections 465(1) c and (3) of the Criminal Code and section 117 of the Immigration and Refugee Protection Act. Mr. Albinowski is also charged with the possession of proceeds of crime contrary to section 355 (a) of the Criminal Code.

[5] The investigation began on April 1st, 2014. The investigation mobilized Canadian and American law enforcement organizations and involved surveillance and nine judicial authorizations. Counsel for defence acknowledged two banker boxes of disclosure documentation.

[6] The Information was sworn on November 13, 2014. The anticipated length of trial is five weeks and is scheduled for completion on March 8, 2018. The parties agree the total delay is 39.75 months.

Issues and Governing Principles

[7] The issues are:

1. What is the period of defence delay?
2. What delay is attributable to exceptional circumstances?
3. How does the framework apply to this transitional case?

[8] Gillese J.A. succinctly summarized the legal framework following Jordan in R. v. Coulter 2016 ONCA 704, beginning at paragraph 32 as follows:

[32] At the heart of the new framework lies a ceiling, beyond which delay is presumptively unreasonable. The presumptive ceiling is 18 months for cases going to trial in the provincial court and 30 months for cases going to trial in the superior court or cases going to trial in the provincial court after a preliminary inquiry (Jordan, para. 46).

A. The New Framework Summarized

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively 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: discrete events and particularly complex cases (Jordan, para. 71).

[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

[40] 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).

[41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).

B. Key Elements in the New Framework

(1) Defence Delay

[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). The period of delay resulting from that unavailability will be attributed to the defence.

[9] Justice Moldaver delimited defence delay in Jordan in paragraphs 65 – 66 as follows:

[65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[66] …Defence actions legitimately taken to respond to the charges do not constitute defence delay.”

(2) Exceptional Circumstances

[45] If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

[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).

[47] An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds 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).

[48] The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(a) Discrete Events

[49] An illustration of a discrete 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).

[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).

(b) Particularly Complex Cases

[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).

[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).

[10] Justice Moldaver in Jordan at paragraphs 52, 53 and 106 confirmed that the presumptive ceiling of thirty months accounts for a total of 14 to 18 months institutional delay between Ontario and Superior Court as well as inherent time requirements of the case and the increased complexity of criminal cases since Morin. The ceiling accounts for the significant role that process now plays in the criminal justice system.

(3) Remaining Delay is Below the Presumptive Ceiling

[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 than 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 clear cases (Jordan, para. 83).

(4) Transitional Cases

[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.

(a) Remaining Delay Exceeds the Presumptive Ceiling

[56] Where the Remaining Delay exceeds the presumptive ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to July 8, 2016, the date that Jordan was released. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case took is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and to the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform whether the parties’ reliance on the previous state of the law was reasonable (Jordan, para. 96).

[57] Moreover, the Remaining Delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues (Jordan, para. 97).

(b) Remaining Delay 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 (i.e. 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 (Jordan, at para. 100).

Accounting for defence delay

[11] The net delay is 38.15 months.

[12] Delay waiver is not a factor in this case. Nor does delay attributable to deliberate and calculated defence tactics aimed at causing delay play into this case. There were no counsel changes. The pre-trial motions work both ways and did not affect the setting of the trial date.

[13] An issue is whether the definition of defence delay changed between the Morin and Askov cases and the Jordan cases. That would signify the court intended to remove reasonable availability and cooperation from the scheduling process and assessment of reasonable delay.

[14] The Crown position is that the Supreme Court intended to categorize reasonable defence scheduling conflicts under the aegis of defence delay when it wrote: Where the Court and Crown are “ready to proceed” but the defence is not, the defence will have directly caused the delay.

[15] The defence submit there is a distinction between not being ready to proceed which relates to preparedness and scheduling unavailability on a particular date due to conflicting obligations in work or life. The Court in Morin under the discussion involving inherent time requirements recognized that counsel for the prosecution and for the defence cannot be expected to devote their time exclusively to one case. In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, Justice Cromwell wrote that “Scheduling requires reasonable availability and reasonable cooperation; it does not for s. 11 (b) purposes, require defence counsel to hold themselves in a state of perpetual availability.” – para 23. Before Jordan, reasonable defence scheduling conflict unavailability did not stop the delay clock and, depending on the circumstances, would fall into institutional or inherent delay.

[16] In R. v. Collette, [2004] O.J. No.5304 where counsel for the accused was unavailable for the interval date offered, at paragraph 36, Justice R. A. Clark agreed with the argument that the reality of practice of most criminal defence lawyers is such that their schedules are usually booked many months in advance. Given that reality, the criminal justice system should be sufficiently resourced to account for it. Justice Clark assigned institutional delay to the entire time between the date when the date was selected and the date selected.

[17] In R. v. Isaacs and Hussain, 2016 ONSC 6214 Justice Lemay discussed the friction between defence foot-dragging and defence delay that is not frivolous and the need to protect the rights of the accused. Defence foot-dragging is not a feature of the case at bar.

[18] The Supreme Court in R. v. Williamson, [2016] SCC 28 and the Ontario Court of Appeal in R. v. Coulter 2016 ONCA 704 did not apply the distinction asserted by defence. This aspect of the issue was not discussed.

[19] In Jordan, Justice Moldaver referred to the Godin reasons, but did not overtly overturn the ratio. He assigned shared responsibility for delay in Jordan resulting from the preliminary inquiry underestimation. He assigned responsibility for the delay resulting from the adjournment of the preliminary inquiry necessitated by defence counsel’s unavailability for closing submissions on the last day scheduled for the preliminary inquiry. The delay resulting from double booking by defence counsel was attributed as defence delay. One-half of that delay was shifted to the Crown when the Crown was unavailable on the first offered return date acceptable to the defence.

[20] There are four periods the Crown seeks to attribute defence delay as follows:

1. On March 24, 2015, the parties scheduled the first judicial pre-trial (JPT) returnable May 8, 2015. All counsel but Mr. Miller were available for the Court offering of April 10, 2015. Mr. Miller declined the earlier date as he was scheduled for trial on another matter. The Crown asks to deduct one month from total delay – 1 month accumulation.
2. On May 28, 2015, the parties scheduled a second JPT for June 25, 2015. All counsel but Mr. Miller were available for the Court offering of June 5, 2015. Mr. Miller declined the earlier date again due to trial on another matter. The Crown asks to deduct 3 weeks from total delay – 1.75 month accumulation.
3. On July 9, 2015, the parties scheduled a JPT continuation for September 25, 2015. All counsel but Mr. Johnson were available for the court offering of August 21 and August 28, 2015. The Crown asks to deduct one month from total delay - 2.75 months accumulation.

Discussion

[21] The defence submits that the commitment displayed to achieve disclosure, retention of counsel, disclosure review and three JPTs was an efficient use of time and there should be no defence delay inserted through to October 6, 2015.

[22] These three periods of delay were related solely to scheduling. There was no question of readiness. All parties were ready to proceed. The Court’s schedule could not accommodate the reasonable availability and reasonable cooperation of defence counsel any sooner than it did. This time is accounted for in the thirty-month presumptive ceiling.

[23] Accordingly, this period of 2.75 months cannot be categorized as defence delay.

4. On September 29, 2015, the parties began the process of scheduling a three-week preliminary hearing. On October 6, 2015, dates for the preliminary hearing were set for September 12-16, and 19-23 and October 17-21. The Crown was ready and available for all of the dates offered by the Court: January 11-15, 18-22 and 25-29, 2016, February 1-5 and 8-12, 2016, July 25-29, August 15-19 and 22-26. One or more, but not three defence counsel were available for those dates. Defence submitted that the offerings in January and February did not permit sufficient time to prepare for a multiple week preliminary hearing. The Crown asks to deduct 9 months from total delay. The defence acknowledge defence delay from August 26, 2016 until October 18, 2016 - two months of defence delay. The dates offered in January and February 2016 did not permit proper preparation and the five-month hiatus in court time is institutional delay.

[24] At the time, the institutional time lapse once the parties were ready to proceed to preliminary hearing was twelve to fifteen months. The early dates opened up ad hoc exceptionally for reasons unrelated to files involving counsel of record in this proceeding.

[25] Defence counsel are bound to the solicitor client paradigm. They do not have the option of compromising one client’s interests for another.

[26] Whether it was s. 11 (b) complacency or the poor health of the criminal justice operation in this jurisdiction, Messrs. Johnson and Miller penned in their court work for January and February 2016 as long beforehand as October 2014. That they could not free up the same 3-week time window for January/February 2016 in October 2015 is consistent with the Court’s expectation of a twelve to fifteen-month interlude between readiness for the preliminary hearing and the hearing. Defence counsel are no less constrained by features of systemic delay issues (Jordan, para. 97) than the Crown and court administration. The dates set for the hearing accorded with practice in that court at the time.

[27] The reality is that defence counsel were locked into these delay expectations when the earlier dates were offered. The Godin/Morin/Collette counsel availability expectations were operative in October 2015. The amnesty on 11(b) protection predicted by Justice Cromwell in Jordan minority will come to pass if transitional considerations are not extended to defence counsel availability expectations established in Godin and Morin.

[28] The core reason for the delay from October 2015 to July 25, 2016 was institutional in nature. I am unprepared to foist that delay onto defence because they could not free the time in the January/February window. Defence are entitled to preparation time even when the Court and Crown are ready to go. The Court in Jordan accounted for procedural requirements in setting the ceiling. Such a deduction would run contrary to the accused’s right to make full answer and defence. On these facts and in this context, the accused will be charged with 1.6 months delay in the scheduling of the preliminary hearing – the period between July 25, 2016 and September 12, 2016.

[29] The preliminary hearing proceeded on September 12-16, 19-20 and October 17, 2016. Fifteen witnesses were examined. One reason argued by the Crown for the delay in getting to the hearing was related to the estimated length of the enquiry. The Crown argues that three weeks was never a realistic expectation. Ontario Court in this jurisdiction is plagued with continuations resulting from under-booking hearing length. A continuation in this file could have delayed the committal that much longer. That defence insisted on the longer time indicates commitment to a timely trial. Estimating hearing length is not an exact science. Justice Renaud committed Mr. Albinowski and Mr. Pipien on October 18, 2016. He reserved on Mr. Fitzsimmons and committed him on December 9, 2016.

[30] The time estimate for the trial is five weeks. On December 8, 2016, the trial was set to begin on February 5, 2018. That was the first date available to accommodate this trial. The pre-trial motions were scheduled by moving back in time from the trial date to find time to accommodate. These motions do not directly affect the trial date.

Exceptional Circumstances

[31] The remaining delay is 38.15 months.

Discrete Events

[32] Discrete events are not a factor in the delay incurred in this case.

Particular Complexity

[33] Although the Crown argued complexity, this prosecution does not fall into the category of a particularly complex prosecution. With respect, it is not complexity that delayed this case. The Crown was ready to proceed with the preliminary hearing and trial well within the presumptive ceiling.

[34] The evidentiary record will be substantial, but the legal issues straightforward. The Crown argues that evidence volume directly correlates with increased complexity in getting the case to trial. By comparison, the typical murder trial takes five weeks or more and is expected to be concluded within the thirty-month presumptive ceiling.

[35] In R. v. Ethier, 2017 ONSC 564 Justice Hackland ruled the circumstances of that prosecution to be a particularly complex. While conspiracy was at the center of Ethier as it is here, the prosecutorial complexity depicted in Ethier was materially greater than the circumstances at bar.

[36] The first stages of this prosecution were carried out efficiently. The Crown requested four weeks in the early stages to marshal disclosure. That would have been inherent time under the Morin analysis. Disclosure has been ongoing. The defence did not request time to reflect on ongoing disclosure.

[37] The Crown cannot make out an evidentiary basis for the position that the nature of the evidence or issues (or both) required an inordinate of trial or preparation time. The Crown assumed the position of readiness for the preliminary hearing within three months of the completion of the JPT process. The preliminary hearing proceeded with relative alacrity after eight days of evidence.

[38] The Crown requested expedited trial dates when the trial date was set.

[39] In recognition of the realities of practice, the fact of a joint proceeding can be a complexity component. This prosecution involves three accused. All parties acknowledge there is no basis for severance to reduce individual time to get to trial. The Jordan presumptive ceiling accounts for some delay relative to joint trial complexity. Crown evidence will be virtually the same for the three accused.

[40] As noted earlier, delay related to matching schedules was insignificant against the total delay in the proceeding.

Reasonable attempts at mitigating delay

[41] In terms of reasonable attempts at mitigation, the Crown wrote to defence counsel proposing a paper preliminary hearing with a view to reducing the time requirements. Although laudable, delay resulting from under-estimation and continuation delay is the greater concern. The Crown offered to fragment the trial to get earlier dates. The Assignment Court judge declined. The Crown moved for a change of venue. There is no evidence of alternate more timely resource availability in this region. Defence counsel advised a change in venue will cause retainer issues and engender further delay. The Crown asked defence to make admissions to shorten the trial. Defence counsel agreed that if defence admitted everything the Crown asked, they admit the trial would be shorter and the defence denuded of efficacy. Defence take issue with some of the admissions sought.

[42] The Crown efforts to mitigate delay do not have to be successful; rather they need to be reasonable. The Crown initiatives suggest desperation rather than reasonable response. Whether they were reasonable or not depends on how the offerings roll out. The shortened preliminary inquiry, change of venue and fragmented trial offerings, if accepted are as likely to extend the delay as reduce. I agree with the defence submission regarding sensitivity inherent in requests to admit essential elements.

Transitional Cases

[43] The transitional exceptional circumstance will apply when the Crown satisfies the Court that the time the case took is justified based on the parties’ reasonable reliance on the law as it previously existed.

[44] The Morin framework required Courts to balance four factors in determining whether a breach of s. 11 (b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay. Institutional delay in particular is assessed against a set of guidelines developed in Morin: eight to ten months in the Provincial Court, and a further six to eight months after committal for trial in the Superior Court. The Morin guidelines reflect the fact that resources are finite and there must accordingly be some tolerance for institutional delay. Institutional delay within or close to the guidelines has generally been considered to be reasonable.

[45] The intake, disclosure, retention of counsel, disclosure review and three JPTs carried on between November 2014 and October 2015 – 11 months. Although three JPTs and reasonable scheduling for four counsel in a busy court inevitably takes time, the JPT process is recognized as one of the most important tools of modern case-management – R. v. Ghandi, 2016 ONSC 5612 at para. 33. Most of that would fall under the auspices of inherent time requirements. An accumulation of two months of institutional delay accrued around judicial availability – 70 days.

[46] The institutional delay accrued between end of October 2015 and end of July 2016 is nine months.

[47] The defence position is that the interval between October 2015 and end of July 2016 involves institutional delay. The five months following February 2016 is acknowledged institutional delay and that bank of time lugs in the prior four months. In Collette, Justice Clark assigned institutional delay to the nine months in the context that the criminal justice system should be sufficiently resourced to account for the realities of practice.

[48] The Crown position is that this is defence delay.

[49] It is not surprising that three defence counsel were collectively unavailable for a three-week hearing, three and four months from the set date. Counsel are not expected to devote their time to one case. While concentrated hearing preparation would not be three or four months, the reality is that defence counsel fit preparation into their workload in the present at any given time.

[50] This was institutional delay and this assessment results in eleven months of institutional delay in Ontario Court.

[51] The institutional delay in Superior Court is thirteen months after accounting for the inherent time involved in a five-week trial. All parties committed to the first available date. The result is combined institutional delay of 25 months.

[52] This case was in jeopardy of a delay stay under the Morin review. The normal institutionally based time lapse from readiness for preliminary hearing and the hearing was between twelve and fifteen months in October 2015. In this case, the parties were able to secure a date within one year of readiness.

Considerations of prejudice and the seriousness of the offence

[53] Save for the prejudice inherent in the delay of just under forty months and institutional delay of 25 months, well over the approved cumulative institutional delay of fourteen to eighteen months in the system, prejudice was not advocated. Justice Moldaver noted that thirty months is a long time to await a determination of charges, but having regard to the exigencies of the criminal process, such delay is empirically normative and one of the costs of business. Prejudice is presumed.

[54] Conspiring to smuggle humans across international borders is viewed as a serious offence with serious sanctions – three-year minimum imprisonment if convicted.

[55] The Crown was operating without notice of the new framework within a jurisdiction with systemic delay issues. The Crown argues that it reasonably relied on the previous state of the law. The previous state of the law allowed for institutional delay in the range of eighteen months. At twenty-five months, the accused’s rights to trial within a reasonable time had been compromised on any analysis. The Morin guidelines reflect the fact that resources are finite and there must accordingly be some tolerance for institutional delay. Institutional delay within or close to the guidelines has generally been considered to be reasonable. Twenty-five months institutional delay is unreasonable.

[56] These accused were caught in the consequence of complacency as to right to trial within a reasonable time cited by Justice Moldaver. A symptom of the poor health of the criminal justice system in this jurisdiction is that we were unable to assign priority status to a serious case with serious consequences for the accused if convicted because the pipeline was/is full.

[57] While judges should account for the reality of institutional delays because counsel’s behaviour is constrained by systemic delay issues, to disregard the breach of the accused’s rights to trial within a reasonable time feeds continued complacency over delay and recognition that resources are finite.

[58] The transitional considerations cannot justify the delay in this case. All the parties operated within the culture of complacency towards delay that pervaded the criminal justice system. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. Timely trials are both possible and constitutionally required.

[59] The accused have been denied the constitutional right to trial within a reasonable time pursuant to s. 11(b) of the Charter. The charges are stayed pursuant to s. 24(1) of the Charter.

The Honourable Mr. Justice Rick Leroy Released: April 20, 2017

COURT FILE NO.: CR-16-72 DATE: 2017/04/20 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Marek Albinowski Wladyslaw Pipien Robert Fitzsimmons Accused Ruling on s. 11 (b) charter application The Honourable Mr. Justice Rick Leroy Released: April 20, 2017