R v Chang, 2016 ABQB 297

Court of Queen ’ s Bench of Alberta Citation: R v Chang, 2016 ABQB 297 Date: 20160527 Docket: 140032350Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Lawrick Edward Chang Accused Corrected judgment: A corrigendum was issued on June 23, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates Application – s 11(

b) of the Canadian Charter of Rights and Freedoms _______________________________________________________

Introduction and Overview [ 1 ] This is an application brought by Lawrick Edward Chang, (the “Applicant”) seeking a remedy pursuant to s 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter ”). The Applicant says that his right to be tried within a reasonable time, as guaranteed by s.11(

b) of the Charter , has been violated so as to warrant a judicial stay of proceedings. [ 2 ] For the reasons which follow, the application is dismissed. History of the Proceedings [ 3 ] The Applicant was arrested and charged on August 13, 2013 with possession of cocaine for the purposes of trafficking, possession of oxycodone for the purposes of trafficking, both contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA) , and with possession of the proceeds of crime. He was released by a Justice of the Peace on the same date.

He was represented by counsel at the time and the terms of release were the subject of a joint submission. The Applicant concedes that the terms of his release were not onerous. His first court appearance was set for August 28, 2013. [ 4 ] At the time of the first appearance, the Applicant’s counsel, Mr. Fagan, appearing by agent, sought an adjournment to September 11, 2013, but the Crown sought a lengthier adjournment to allow for a determination if the Applicant was to be jointly charged with others on a new information. The matter was, accordingly, adjourned to September 16, 2013.

On September 9, 2013, counsel for the Applicant sent a request for disclosure to the Crown. [ 5 ] On September 16, 2013, the matter was adjourned on consent, at the request of the Crown, to September 27, 2013. [ 6 ] On September 27, 2013, Mr. Fagan’s agent advised the court that he was reviewing the disclosure already received and inquiring as to whether the Crown had any further disclosure to provide. When the Crown responded in the negative, a further adjournment was sought by the Applicant to October 31, 2013.

The Crown indicated at that time that a co-accused was to appear on October 23, 2013 and suggested that the Applicant’s matter be adjourned to the same date. It is now clear that Mr. Fagan’s agent’s reference to disclosure already received was made in error. [ 7 ] At the time of the October 23, 2013 appearance, Mr. Fagan’s agent sought a further adjournment to November 12, 2013, pending receipt of full disclosure. The agent advised the court that he was uncertain as to whether or not initial disclosure had been provided.

The Crown indicated that a request for disclosure had been made to the Calgary Police Service, but nothing had been received. [ 8 ] The matter was adjourned again on November 12, 2013, to December 6, 2013 at the request of Mr. Fagan’s agent so that he could review disclosure. On December 6, 2013, Mr.

Fagan’s agent advised the court that the defence was still waiting for disclosure, initially requested in September, and asked that the matter go over to January 10, 2014. [ 9 ] On January 2, 2014, the Applicant was charged with possession of fentanyl for the purposes of trafficking, contrary to s. 5(1) of the CDSA. [ 10 ] A further four count “replacement” information was sworn on January 9, 2014, joining the three counts set forth in the August 14, 2013, information and the single count information sworn on January 2, 2014.

These new informations, together with the original August 14, 2013, information were all before the court on January 10, January 31, February 28, March 28, and April 28, 2014. [ 11 ] Disclosure was provided in conjunction with the January 10, 2014, court appearance. Mr.

Fagan’s agent noted on the record that this was the first disclosure that had been received. (The first disclosure package was actually sent by the Crown on December 8, 2013.) A review of the transcript reveals that the attending Crown anticipated that a new information joining the Applicant with two other named accused would be before that court on that date. When it became clear that this was not the case, the attending Crown advised that he would ask the assigned Crown to address this outstanding issue. Mr. Fagan’s agent asked that the matter be adjourned to January 31, 2014. [ 12 ] On January 31, 2014, Mr.

Fagan again appeared by agent. His agent advised the Court that half of the disclosure listed on the disclosure index was missing from the disclosure packet previously provided, including the search warrants and supporting informations to obtain. The Applicant’s counsel asked that the matter go over to February 28, 2014, pending receipt of the disclosure. [ 13 ] Mr. Fagan appeared by agent in conjunction with the February 28, 2014 court appearance and advised the court that Mr. Fagan was still waiting to receive the information to obtain. The Crown advised that “we do have a lengthy disclosure list here.

I think everything Mr. Fagan was looking for is on there.” At that point, the Defence sought a further adjournment to March 28, 2014 to review the new material. [ 14 ] During the February 28, 2014, court appearance, there was a discussion between Judge McLeod, the attending Crown, Mr. Kruger, and Mr. Fagan’s agent regarding the joinder of the Applicant on an information with three other named co-accused. Specifically, Mr. Kruger inquired whether one of the informations then before the court included three co-accused. Mr.

Fagan’s agent advised that “they’ve been following along altogether, and I think the intention is to have them joined, but they haven’t been yet.” [ 15 ] Supplementary disclosure was received on February 27, 2014, but none of the missing items from the January 10, 2014, disclosure. Additional disclosure was provided in conjunction with the court appearance the following day, February 28, 2014.

[ 16 ] On March 28, 2014, the original and the two replacement informations were before the Court. At the request of the Applicant’s counsel, the matter was adjourned one month, to April 28, 2014, to allow the Crown to determine which information it intended to proceed with. [ 17 ] Additional disclosure was received by the Defence on April 14, 2014. At the time of the next court appearance on April 28, 2014, process was transferred to the January 9, 2014, replacement information at the request of the Crown.

Both the original August 14, 2013 information and the single count information sworn on January 2, 2014, were withdrawn. Though the parties were prepared to set a date for a preliminary inquiry, the court’s scheduling system was not operational on the date and the matter was set over to May 6, 2014. On May 6 th , the matter had to be adjourned again, to May 23, 2014, as the date proposed by counsel for the preliminary inquiry was no longer available.

On May 23, 2014, the pre-preliminary inquiry meeting was set for July 3, 2014, with the preliminary inquiry scheduled for December 12, 2014. [ 18 ] The pre-preliminary inquiry meeting took place, as scheduled, on July 3, 2014. Further disclosure was provided to the Defence on August 1, 2014. On December 12, 2014, the Applicant was committed to stand trial on a charge of possession of cocaine for the purposes of trafficking, contrary to s. 5(2) of the CDSA , and possession of the proceeds of crime. Mr.

Fagan appeared in person and consented to committal without the necessity of calling evidence. [ 19 ] The Applicant made his first appearance in the Court of Queen’s Bench on February 6, 2015. Mr. Fagan’s agent sought a two- week adjournment to obtain a copy of the indictment and to seek instructions. The matter was adjourned again on February 20, 2015, to March 6, 2015, again at the request of the Applicant’s counsel in order to obtain instructions. [ 20 ] On March 6, 2015, the matter was set for trial for four days commencing February 8, 2016, with a pre-trial conference scheduled for June 22, 2015.

The Applicant and the Crown both had availability on December 14-17, 2015, but the Court was unable to accommodate these dates. The first four day block of time available to the Court commenced on February 8, 2016. [ 21 ] On December 8, 2015, the Applicant filed a Charter Notice alleging a breach of ss. 8, 9 and 10(b), the right to a trial within a reasonable time.

In a letter dated August 4, 2015, the Applicant’s counsel served notice on the Crown of his intention to expand his Charter Notice to include an alleged breach of s. 11(b). [ 22 ] On December 17, 2015, the Defence sent a request to the Crown seeking disclosure of a surveillance video.

The Crown responded on January 14, 2016, providing a copy of the requested material. [ 23 ] In addition to the transcripts of the various court appearances in both Provincial Court and the Court of Queen’s Bench, the Applicant provided copies of various exchanges of correspondence with the Crown, principally relating to the issue of disclosure. These letters are included as exhibits to the affidavit of Nicole Shute, a legal assistant working with Mr. Fagan. These exhibits reveal the following sequence of written communication:

a) September 9, 2013 – Letter from Mr. Fagan seeking full disclosure;

b) December 5, 2013 - letter from Danielle Szabo, Public Prosecution Service of Canada (“PPSC”), to Mr. Fagan attaching a CD containing copies of various listed documents and photographs;

c) January 8, 2014 – Letter from Mr. Fagan following up on his September 9, 2013, letter and seeking full disclosure;

d) January 9, 2014 – letter from Danielle Szabo, PPSC, to Mr. Fagan attaching four further items of disclosure;

e) February 13, 2014, letter from Danielle Szabo, PPSC, to Mr. Fagan, attaching a CD containing copies of various production orders; sealing orders; police officer notes (74 listed); surveillance notes/summaries; and various other items;

f) February 26, 2014, letter from Danielle Szabo, PPSC, to Mr. Fagan attaching copies of a sealing order; a tracking warrant; the information to obtain the tracking warrant; four production orders; a sealing order relative to the production order; and various photographs relating to the search;

g) April 14, 2014 – letter from Danielle Szabo, PPSC, to Mr. Fagan attaching copies of six search warrants and an information to obtain;

h) August 1, 2014 – letter from Danielle Szabo, PPSC, to Mr. Fagan attaching copies of additional disclosure materials, notably the expert opinion of Detective C. Harris and a c.v. for Detective Harris;

i) August 4, 2014 – letter from Mr. Fagan to Danielle Szabo, PPSC, seeking copies of notes of various police officers (if not previously disclosed) as well as copies of all search warrant returns, exhibit handler’s log(s), video taken at the scene, prisoner observation log and any other relevant documents;

j) August 4, 2014 – letter from Danielle Szabo to Mr. Fagan, PPSC, attaching a CD containing the contents of the February 13, 2014 disclosure, together with a five-page list of additional disclosure items, notably police officers notes;

k) December 17, 2015 – letter from Mr. Fagan to Mr. Chris Williams, PPSC, requesting a copy of all surveillance videos related to the investigation. [ 24 ] The Applicant’s s. 11(

b) Charter argument was heard on February 8-9, 2016. At the conclusion of oral argument, I dismissed

the application with written reasons to follow. These are my reasons for decision. The Law [25]

Section 11(

b) of the Charter provides that: 11. Any person charged with an offence has the right (

b) to be tried within a reasonable time. [26] In R v Morin, (SCC), [1992] 1 S.C.R. 771, the Court identified (at paras 26-28) the purpose of s. 11(b): The primary purpose of s. 11(

b) is the protection of the individual rights of accused. A secondary interest of society as a whole has,however, been recognized by this court. .... The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the rightto a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place whileevidence is available and fresh. [27] The interest of society was described by the Court as encompassing society’s interest in seeing that accused are treatedhumanely and fairly. Public confidence is enhanced by prompt trials.

At the same time, the Court recognized that some accused have nointerest in a speedy trial and that in such instances the interests of society will diverge from those of an accused. The Court went on todiscuss the societal interest in seeing those who break the law brought to justice. At para 30, Sopinka J. stated: There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this courtrecognized that the interests of the accused must be balanced by the interests of society in law enforcement.

This theme was picked up inAskov in the reasons of Cory J. who referred to “a collective interest in ensuring that those who transgress the law are brought to trial anddealt with according to the law.” (pp. 1219-1220 [S.C.R.]). As the seriousness of the offence increases so does the societal demand thatthe Accused be brought to trial.

The role of this interest is most evident and its influence most apparent when it is sought to absolvepersons accused of serious crime simply to clean up the docket. [28] The majority in Morin pointed out that there is no formula to be applied in determining whether or not the right to be triedwithin a reasonable time has been breached. Rather, a court is required to balance “the interests which the

section is designed to protectagainst factors which either inevitably lead to delay or are otherwise the cause of delay” (para. 31). [29] The factors to be considered are: 1. The length of the delay; 2. Waiver of any time periods; 3. The reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. Prejudice to the accused. [30] The Supreme Court subsequently dealt with the proper

interpretation of s. 11(

b) in R v Godin, 2009 SCC 26, and a number ofother decisions. The guiding principles articulated by the Supreme Court in R v Conway, (SCC), [1989] 1 S.C.R. 1659;R v Askov, (SCC), [1990] 2 SCR 1199, Morin, Godin and other decisions have been applied in countless trial andappellate court decisions in Canada, too numerous to mention. The Length of the Delay [31] The period to be examined in this process is the date of the charge to the end of the trial, including sentencing.

Periods thathave been waived are to be subtracted, leaving a period of time that is to be assessed to determine whether or not it is unreasonable. Inthis instance, the Applicant was arrested on August 13, 2013. His trial took place in Calgary commencing on February 8, 2016. TheApplicant filed his Charter Notice on October 9, 2015. The total length of delay from the date of charge to the scheduled date ofsentencing is approximately 30 months.

Waiver [32] In Morin, the Court indicated that allegations of waiver on the part of an accused should be addressed before moving to amore detailed consideration of the reasons for delay. The Court stated as follows (at paras. 37-39): If by agreement or other conduct the accused has waived in whole or in part his or her right to complain of the delay then this will eitherdispose of the matter or allow the period waived to be deducted.

This court has clearly stated that in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear andunequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on thoserights... Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringenttest for waiver set out above. .... Waiver requires advertence to the act of release rather than mere inadvertence.

If the mind of the accused or his counsel is not turned tothe issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct maybe taken into account under the factor “actions of the accused” but it is not waiver. As I stated in Smith, supra, which was adopted inAskov, supra, consent to a trial date can give rise to an inference of waiver.

This will not be so if consent to a date amounts to mereacquiescence in the inevitable. [33] In R v Smith, (1989) (SCC), 52 C.C.C. (3d) 97 (S.C.C.), the Court held that agreement to a future trial datewill, in most circumstances, amount to waiver. At p. 109, the Court held: Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waived his right tosubsequently allege that an unreasonable delay has occurred.

While silence cannot constitute waiver, agreeing to a future date for a trialor a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellantss. 11(

b) rights might be inferred based on the foregoing circumstances. [34] In a subsequent decision, R v Brassard, (SCC), [1993] 4 SCR 287, L’Heureux-Dube stated, at para. 2, “In theabsence of any evidence that these consents amount to acquiescence in the inevitable, the consents constituted waiver or, as actions of theaccused attributable to him.” See also Rahey v R, (SCC), [1987] 1 SCR 588; R v Slaney (1992), (NLCA), 75 C.C.C. (3d) 385 (Nfld CA), aff’d (SCC), [1993] 2 SCR 228; R v Bennett (1991) (ON CA),64 C.C.C. (3d) 449 (Ont.

CA) aff’d (SCC), 74 C.C.C. (3d) 384 (SCC); R v Heikl, 1992 ABCA 142 at para. 27. [35] In R v Adam, 2006 BCSC 350, Romilly J discussed the impact of defense counsel's agreement to trial dates in the 11(b)context: [133] It matters not whether defence counsel's agreement for later trial dates amounts to waiver, actions of the accused or simply anindication of an absence of prejudice; whichever it may be, the agreement stops the running of the clock against the breach of theaccused's constitutional rights to be tried within a reasonable period of time.

Accommodating the needs of defence counsel counts againstthe defence when calculating delay under s. 11(b): see Allen; and R v Chatwell (1998), (ON CA), 38 O.R. (3d) 32(C.A.), aff'd (SCC), [1998] 1 S.C.R. 1207. [134] In R v MacPherson (1999), 127 B.C.A.C. 49, 1999 BCCA 403 (B.C. C.A.), the Court held that the Crown was not solelyresponsible for the delay created even though the rescheduling was made necessary by the Crown's failure to disclose a police officer'snotes in a timely manner.

Similarly, the Crown is not responsible for delays created due to defence counsel's calendar: R v Kwok (2002),164 C.C.C. (3d) 182 (B.C. C.A.) at 189, 2002 BCCA 177 (B.C. C.A.). [36] Romilly J went on to determine whether consent to adjournments amounted to waiver by the accused of the resulting delay.He concluded that the consent to adjournment by defense counsel amounted to waiver rather than mere acquiescence.

There was“absolutely no evidence” of acquiescence when defense counsel consulted his calendar and agreed to the proposed dates. [37] The requirement that defense counsel produce evidence of acquiescence was discussed by Fraser CJA in R v Koruz, 1992ABCA 144, affirmed (SCC), [1993] 1 S.C.R. 1134, at para. 56: As for the suggestion that an agreement to dates should be treated as nothing more than an agreement to the inevitable, I reject thisposition. First, there is absolutely no evidence that this was so.

Second, the practice of Crown counsel in Alberta pre-Askov to consultwith defence counsel on mutually convenient trial dates points to a contrary conclusion. What would have been the purpose of taking thetime to discuss dates if in the final result, the Crown was simply going to dictate that the first available date be chosen?

There wouldhave been none. [38] This position was affirmed more recently by the Alberta Court of Appeal in R v Sapara, 2001 ABCA 59 at para. 28, andfollowed by Yamauchi J in R v Legerton, 2014 ABQB 162 at paras. 49-51. [39] I am satisfied that, absent evidence to the contrary, agreement between counsel to suggested dates should not be characterizedas mere “acquiescence to the inevitable.” If there is no evidence to establish counsel's agreement to dates was in fact acquiescence, thedelay stemming from the agreement to the dates will amount to waiver by the accused in the Morin analysis.

The Reasons for the Delay (

a) Inherent time requirements of the case [40] Inherent time requirements recognize that some delay is inevitable. They cover the period required to prepare and process a

case assuming the availability of adequate institutional resources. The inherent time requirements of a case are neutral in the s. 11(b)reasonableness assessment and do not count against the Crown or the accused.

Any delay attributable to inherent time requirements isdeducted from the overall period of delay: R v MacDougall, (SCC), [1998] 3 S.C.R. 45 at para 44; Rahey, at para. 31,Conway, at para. 37; Morin, at para. 37; Koruz, at para. 45; Legerton, at paras. 86-87. [41] These time requirements include intake procedures - for example, bail applications, retention of counsel and disclosure, andrecognize that greater time is required if the case is complex or if the proceedings include both a preliminary inquiry and a trial.

Thiselement also takes into consideration that counsel work on more than one file at a time and are not expected to devote all of their effortsto a particular matter. [42] In Morin, the Court specifically declined to set an administrative guideline for this intake period given regional variations. Noadministrative guidelines have been established by the Alberta Court of Appeal or, indeed, directly addressed by any other court inAlberta.

In Koruz, Fraser JA (as she then was), at para. 47, expressed reluctance to fix guidelines in the absence of statistical dataregarding the issue of inherent or systemic delay. [43] I do note, however, that the decision of Code J. in R v Lahiry, 2011 ONSC 6780 provides some helpful guidance and insightsin terms of dealing with the in-take period of a case in conjunction with a s. 11(

b) analysis. At para. 19, he described this period asconsisting of the time: …during which the parties retained counsel, prepared disclosure, reviewed disclosure, met with the client, obtained instructions,conducted a pre-trial resolution meeting and then appeared in court and stated on the record that they are now ‘ready to set a trial date’.These activities are all necessary and beneficial at the beginning of any case. They are referred to as ‘the neutral intake period’ in thecase law and can vary in length, depending on the complexity of the case. (

b) Actions of the Crown [44] As the Court in Askov stated , at para. 40: “it is the duty of the Crown to bring the accused to trial.” The actions of the Crownmay, however, also delay the trial. Even in the absence of fault or blameworthiness, the Crown cannot rely on its own actions orinactions to justify a delay that is otherwise unreasonable. In Morin, the Court cited Crown disclosure decisions, change of venueapplications and adjournments requested by the Crown as illustrative of the types of Crown actions contemplated by this factor. See also:R v MacIntosh, 2011 NSCA 111, aff’d 2013 SCC 23; R v Beason (1983), (ON CA), 7 C.C.C. (3d) 20 (Ont. C.A.) [45] The purpose of s. 11(

b) is not, however, to assign blame to either party, but rather to determine whether the period of delay inprosecuting an accused is unreasonable. It is not concerned with misconduct and should not be used as a means to punish the prosecutionor the police.

As stated by the Ontario Court of Appeal in R v Austin, 2009 ONCA 329, at para. 67, “[t]he focus of the exercise under s.11(b), however, is on the impact of the delay on the accused and society, not on weighing the seriousness of the causes of the delay orattaching blame”. [46] In Morin, in discussing delay caused by the conduct of the Crown, Sopinka J. stated at para. 46: As with the conduct of the accused this factor does not serve to assign blame. The factor simply serves as a means whereby actions of theCrown which delay the trial may be investigated.

Such actions include adjournments requested by the Crown, failure or delay indisclosure, change of venue motions, etc. .... [S]uch delays cannot be relied upon the Crown to explain away delay that is otherwiseunreasonable. [47] While Sopinka J. states that a “failure or delay in disclosure” cannot be used to justify a delay, he does not state that this isegregious conduct that should be punished or made blameworthy.

It is a factor that may make the delay unreasonable but such conductby the police or prosecution should not be punished by granting a stay under s. 11(b). [48] This same idea was expressed by the majority in Conway, at para. 22: The Crown is free to use its prosecutorial discretion as it seems fit, provided that it does not conduct the prosecution in an abusivemanner.

We are not here concerned with fault but with the reasonableness of the over-all delays in bringing an accused to justice. [49] The comments made by the majority in Conway reflect the comments made by Lamer J. (as he then was) three years earlierwriting for three members of a seven person court (the majority decision did not address the issue) in R v Mills, (SCC),[1986] 1 S.C.R. 863 at paras. 190-191: The purpose of s. 11(b), however, is not to penalize or sanction misconduct by the authorities. The

section is concerned not with abuse ofprocess but with abusive process. The Crown's motives, whatever they may be, do not render a reasonable delay unreasonable nor canthey transform an unreasonable delay into a reasonable lapse of time. Thus, whether the delay is the result of malice, negligence orinadvertence is of little import, the remedy being in all cases at least a stay, except, of course, when considering additional remedies,such as damages. With respect, whether governmental delay is deliberate or not is irrelevant to the determination of the violation.

Indeed, the right may beviolated, in some circumstances, despite the best intentions and best efforts of the authorities. The function of the doctrine of abuse ofprocess is, therefore, in my view entirely distinct from that of s. 11(b). While a reduction in official misconduct may be a consequence ofs. 11(b), this is not its purpose. In the eyes of the individual accused, it matters little whether the delay is imputable to the authorities ornot; what truly matters is the extent to which the delay will impair his or her interests.

Section 11(

b) does not to any extent represent anentrenchment or an extension of the common law doctrine of abuse of process. [50] Finally, in applying the factors set out in Morin, I am guided by Fraser, JA writing for the majority in Koruz, at para. 32: What the court must assess is the reasonableness of the over-all delays in bringing an accused to justice: Conway, supra, at p. 307. This

task is not, and should not be permitted to become, an exercise in assigning fault for each and every step in the trial process. (

c) Actions of the accused [ 51 ] Actions of the accused falling short of waiver must nonetheless be taken into account in deciding whether the delay is unreasonable. In considering the actions of the accused in this context, the objective is not to attribute blame or fault. Rather the purpose is to understand how the actions of the accused, including the strategic decisions of defence counsel, contribute to the overall delay. In Morin , the Court cited change of venue applications, attacks on wiretap evidence and defence requests for adjournments as examples of the type of actions contemplated by this factor. See also Askov , at paras. 95-96 . (

d) Limits on institutional resources [ 52 ] Inadequate resources may cause institutional or systemic delay. This delay begins when the parties are ready for trial but the system cannot facilitate a trial date. Systemic delay is delay to be attributed to the Crown in the absence of justification, whereas inherent time requirements are a neutral factor. [ 53 ] In Morin , the Court suggested 8-10 months as a guide to provincial courts and 6-8 month after committal for trial as a guideline in assessing reasonable institutional or systemic delay. Similar guidelines had previously been set by the Court in Askov .

However, the Court in Morin also indicated that regionally based guidelines relative to this type of delay were best left to provincial courts of appeal. These guidelines do not serve, in effect, as a limitation period to be applied in a mechanical fashion. In these types of applications, the court must consider all of the factors in determining whether or not a Charter breach has been established. [ 54 ] In Godin , the Court considered a period of 21 months from the date the charges were instituted until the completion of the preliminary inquiry.

However, Cromwell J observed, at para. 5, that notwithstanding that this period exceeded the Morin guideline “[t]hat on its own does not make the delay unreasonable.” [ 55 ] As discussed above, the Alberta Court of Appeal has never provided specific regional guidelines on permissible periods of systemic or institutional delay. The cases in Alberta tend to adopt the same time period as that stated in Askov .

However, in Koruz , a case decided after Askov but prior to Morin , the Alberta Court of Appeal held that an approximately eleven month delay from arraignment to the first scheduled six week trial date was not an unjustifiable systemic delay. The Court of Appeal signalled caution in setting a guideline.

The Court also referred to the problems in assessing an appropriate number because of the dangers in drawing conclusions from statistical data: Koruz , at paras. 47-50. [ 56 ] More recently, in R v Tshitenge , 2011 ABPC 117 , the Alberta Provincial Court stated (at para. 9): "In the normal course, based on the time requirements of a full day trial and the resources available in this jurisdiction, it takes 9 to 10 months to obtain a trial date in this jurisdiction”.

This case would seem to suggest that there is at least some authority in Alberta for roughly following the actual guidelines set forth in Askov and Morin . [ 57 ] It is, in my view, significant to note that both Askov and Morin were primarily, if not entirely, concerned with institutional or systemic delay. In Morin , the sole source of delay was limits on institutional resources. In Askov , the Supreme Court was entirely concerned with systemic delay . The Court in Morin stated (at para. 48 ): There is a point at which the court will no longer tolerate delay based on the plea of inadequate resources.

This period 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. [ 58 ] The authorities recognize that there is distinction between the inherent time requirement of a case and systemic or institutional delay. Any time that elapses in the judicial system is not systemic delay. If it were, then the inherent time requirements of a case would be fully subsumed in systemic delay.

The Morin guideline of 14 to 18 months for institutional or systemic delay does not, in my view, incorporate the inherent time requirements of the trial process. (

e) Other reasons for delay [ 59 ] In deciding a s. 11(

b) application, the Court is required to consider or take into account all of the reasons for the delay. This category encompasses other reasons for delay that do not fit into the other four categories. Prejudice to the Accused [ 60 ] Prejudice suffered by an accused is a factor necessary to justify a judicial stay by virtue of an unreasonable delay of a trial.

This factor relates to the prejudice to the accused suffered as a result of the unreasonable delay and not just prejudice suffered because of the criminal proceedings themselves. [ 61 ] Prejudice to an accused may arise from an inability to make full answer and defence because of the delay’s impact on evidence and witnesses testimony, prejudice to an accused's liberty interest in terms of pre-trial custody or bail conditions, and prejudice to an accused’s security of the person, "in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge”: Godin , at paras. 30-31 . [ 62 ] In Morin , the Court stated (at para. 61): ...in an individual case, prejudice may be inferred from the length of the delay.

The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.

[63] Later, at para. 62, the Court also stated: This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b)is to expedite trials and minimize prejudice and not to avoid trial on the merits. Action or non-action by the accused which is inconsistentwith a desire for a speedy trial is something that the court must consider. [64] The extent to which Morin makes prejudice a key factor in a. s. 11(

b) analysis is clear when the ruling is considered in itsentirety. The Supreme Court accepted that there was a 14 ½ month delay, that the accused did not waive any period of delay, that theCrown and the Accused were not at fault for any of the delay, and that 12 months of institutional delay could be inferred because theinherent time requirements of the case was only 2 months. Even though the institutional delay was greater than the 8 to 10 monthguideline just accepted, the Supreme Court held that there was no Charter violation.

The determining factor in Morin seems to havebeen that the delay could be accepted because the accused had not proven any prejudice. In Morin, (at para. 78), the Court also notedthat the accused failed to lead evidence of actual prejudice and, indeed, failed to respond to a letter from the Crown inquiring whether hewished to have his case expedited because of anticipated prejudice.

In the result, the Court held that the accused was content with thepace with which things were proceeding and that therefore there was little or no prejudice occasioned by the delay. [65] Subsequently in Godin, the Court cautioned that the question of prejudice cannot be considered separately from the length ofthe delay. Godin also accepted that prejudice may be inferred from the length of the delay and that direct evidence is not alwaysrequired.

The inferred prejudice may be in the form of the charges hanging over the accused’s head, restrictive bail conditions, orimpairment of ability to cross-examine witness testimony. An appreciation of the potential risk of prejudice, as well as any actualprejudice, is necessary in determining if a delay is unreasonable. Balancing of the Factors [66] All of the Morin factors are to be considered by the Court in determining if an accused’s s. 11(

b) Charter right has beenviolated. In Morin, Sopinka J. explained, at para. 32, that: The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the otherfactors... It must then be determined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, theexplanation for the delay and the prejudice to the accused. [67] However, the analysis must not proceed in a mechanical manner and the Court must not focus on only certain periods of delayor only on prejudice.

As stated by the Court in MacDougall, at para. 41, “the ultimate question for determination is the reasonableness ofthe overall delay”. [68] This balancing exercise was done by the majority in R v Sharma, (SCC), [1992] 1 S.C.R. 814, a companioncase to Morin, at para. 33: Applying the factors discussed above, particularly the actions of the accused, the paucity of prejudice and the guideline concerninginstitutional delay and taking into account the interests designed to be protected, particularly the relative seriousness of the charge, Iconclude that the delay herein was not unreasonable. [69] Accordingly, the finding of a delay or the finding of prejudice against an accused is not enough.

There must be a balancing ofthe prejudice suffered by the accused, the societal interest, and the explanation of the delay. Analysis Length of Delay [70] The period of time to be reviewed is approximately 30 months. In my view, this length of time is sufficient to raise an issue asto its reasonableness. Waiver [71] I am satisfied that the Applicant waived two periods of time for a total of 16 months. These period are:

a) May 23, 2014 to December 12, 2014 (7 months) – The preliminary inquiry was set in Provincial Court on May 23, 2014. This was adate selected by counsel as being mutually agreeable. Based on the transcript of proceedings from that date, there is nothing on therecord to suggest that this was anything other than waiver. In the absence of some evidence that this date was merely acquiescence to theinevitable, I am satisfied that the agreement of the Applicant’s counsel to this date amounted to waiver.

b) March 6, 2015 – December 14, 2015 (9 months) – The trial date in the Court of Queen’s Bench was set in Criminal Appearancecourt on March 6, 2015. Both parties had availability during the period of December 14-17, 2015, but the court was unable toaccommodate those dates and the matter was set to commence February 8, 2016. I would characterize this two-month period, December14, 2015 to February 8, 2016, as institutional delay. The parties were ready and available to proceed to trial on December 14, 2015, butthe matter could not proceed due to the unavailability of court time.

However, the nine month period between March 6, 2015 andDecember 14, 2015 was clearly waived by the Applicant. In the absence of some evidence that this date was merely acquiescence to theinevitable, I am satisfied that the agreement of the Applicant’s counsel to this date amounted to waiver. [72] I would deduct this period of 16 months, leaving a period of 14 months of unexplained delay.

Inherent Time Requirements of the Case [73] I turn to consider the remaining blocks of time. I would define these blocks of time as follows:

a) Date of arrest to fix date for the preliminary inquiry – 9.5 months (August 14, 2013 – May 23, 2014)

b) Date of committal for trial to fix date for first trial date – 3 months (December 12, 2014 – March 6, 2015) [74] The first block of time, from the date of the arrest to the fix date for the preliminary inquiry, August 14, 2013 to May 23,2014, requires a detailed analysis in view of the Applicant’s contention that the Crown was responsible for most of this period, a total of220 days (7.5 months), as a result of the delay in providing disclosure and the Crown’s uncertainty as to which charges were to proceed.The Applicant suggests that a period of two months at the outset of this time period is neutral delay arising from the intake requirementsof the case, leaving 7.5 months of Crown delay. [75] I am satisfied that at least a portion of this initial nine and one half months is properly attributed to intake requirements and,as such, part of the inherent time requirements of the case. [76] Unfortunately, there is no evidence before me on the normal intake periods for matters in the Provincial Court of Alberta inthis or any other region of the province.

Likewise, there are no guidelines from the Court of Appeal relative to the inherent timerequirements for criminal cases in Alberta. In the absence of any such guidelines, I assess the time spent on the intake requirements in thecontext of the specific circumstances and requirements of this case. [77] Unlike Morin, which involved a charge of impaired driving, this case was not ready for trial once all of the witnesses hadbeen interviewed and their statements transcribed and disclosed to defence counsel.

Suspected drug samples were obtained as a result ofthe execution of a search warrant at the home of the Applicant. These samples were sent to Health Canada for analysis. This was animportant part of the investigation, both to the Crown as well as to the Applicant.

It added to the overall complexity of the case so as tojustify a greater period of time to complete this part of the process. [78] Second, the fact that a preliminary inquiry was required, thus necessitating a two-stage trial process, added a degree ofcomplexity to this matter that was absent in Morin. [79] The Applicant concedes that this was not a simple case, though suggests that it was relatively straight-forward. The Crown, onthe other hand, urges me to consider the fact that the Applicant was one of several targets in this particular police operation targeting asophisticated drug trafficking organization.

The Crown suggests that the police operation focused on an intricate web that required asubstantial amount of police effort both before and after the execution of the various warrants. The investigation involved significantpolice surveillance evidence and culminated in search warrants to search the residence and vehicle of the Applicant, as well as two otherresidences and two other vehicles. Three individuals, including the Applicant, were arrested in the process. All of these searches wereexecuted on the same day.

The Crown also says that the requirement for Crown vetting of the voluminous disclosure materials alsoadded a degree of complexity justifying a lengthier intake period. [80] Finally, the Crown points to the involvement of other possible co-accused as adding a further level of complexity to thismatter. While none of the other targets were ultimately joined on the same information as the Applicant, some period of time wasrequired for the Crown to make this determination.

The length of time occupied by this aspect of the case is more fully discussed below.Somewhat similarly, the Crown contends that the intake requirements of this case also involved the Crown’s decision to lay replacementinformations for the information originally sworn by the police at the time of the Applicant’s arrest. [81] The decision of Code J. in Lahiry, offers some guidance in terms of dealing with the intake requirements of the case inconjunction with a s. 11(

b) analysis. Lahiry was one of four

summary conviction appeals heard and disposed of in a single writtendecision. Referring to Morin and R v Meisner, [2003] O.J. 1948 (OSCJ), Code J indicated that 2 months had been held to be areasonable intake period for a simple drinking and driving case.

He also referred to the decision of the Ontario Court of Appeal in R v G.(C.R.), (ON CA), 77 O.R. (3d) 308, in which a period of 6.25 months was held to be a reasonable intake periodrelative to a “complex indictable case of spousal assault and sexual assault” (at para. 19), and R v Schertzer, 2009 ONCA 742 ,248 C.C.C. (3d) 270, where the court held that the neutral intake period extended for over 11 months in a very complex, multipleaccused, police corruption and conspiracy case. [82] I accept the Crown’s basic contention that this case was neither simple nor straight-forward.

I am satisfied that it wasmoderately complex and, as such, justified a longer intake period than a file of lesser complexity. In my view, a period of six monthswould be justified as a reasonable intake period for a matter of this complexity. As such, the matter should have been ready to set a datefor a preliminary inquiry sometime around the end of February 2014.

The two month period from the end of January or February 2014,to April 28, 2014, when the parties were ready to set the matter down for a preliminary inquiry, is delay attributable to the actions of theCrown. [83] To this period of six months attributed to the intake requirements of the case, I would add a further one month period, April28, 2014, to May 23, 2014, as being properly attributable to the inherent time requirements of the case.

As such, I reject the Applicant’scontention that this period of time was the result of institutional delay. [84] The Applicant’s contention is that two things occurred during this one month period which delayed the fixing of a date for thepreliminary inquiry. He says that both of these events represent institutional delay. The first period of time, from April 28, 2014, to May6, 2014, involved an adjournment as a result of the fact that the court scheduling system was temporarily available and the parties were

unable to fix a date for the preliminary inquiry. The Applicant also points to a period of seventeen days from May 6 to May 23, 2014, when he was prepared to

schedule the preliminary inquiry but the date previously canvassed with the Crown was no longer available. [ 85 ] In my view, these two periods are not properly characterized as institutional delay, but rather as part of the inherent time requirements of the case. In the absence of evidence suggesting that computer issues led to frequent delays in setting dates in Provincial Court, I find that this was simply an unfortunate, temporary glitch in the operation of the court’s scheduling system.

It would, in my view, be inappropriate to hold the justice system, or its various participants, to a standard of perfection. Under all of the circumstances, I find this to be neutral delay attributable to the inherent time requirements of the case. [ 86 ] With respect to the second period cited by the Applicant, I do not agree that this is properly characterized as institutional delay. What seems to have transpired is that counsel agreed between themselves as to a suitable date for the preliminary inquiry, but failed to confirm the date with the Provincial Court.

Unfortunately, the date was no longer available once the matter was formally addressed in court on May 6, 2014. Again, I am satisfied that this was an unfortunate breakdown in communication between counsel, and possibly the court. I find this to be neutral delay and, under all of the circumstances, to be part of the inherent time requirements of the case. [ 87 ] Dealing with the second period from the date of committal, December 12, 2014 to the setting of a trial date in the Court of Queen’s Bench, March 6, 2015, this spanned a period of approximately three months.

A portion of this period was attributable to the inherent time requirements of the case, while another portion was attributable to the actions of the Applicant. [ 88 ] During the first two-month segment of this time period, December 12, 2014 to February 6, 2015, the file was transferred from Provincial Court to the Court of Queen’s Bench and the Crown filed the indictment.

I would characterize this as part of the inherent time requirements of the case. [ 89 ] The delay from February 6, 2015 to March 6, 2015, a period of one month, arose as a result of the Defence request for an adjournment, first on February 6, 2015, and again on February 20, 2015, so as to allow counsel to obtain instructions from the Applicant. In my view, this delay arose as a result of the actions of the Applicant. [ 90 ] To conclude, I would attribute a total of 7 months to the inherent time requirements of the case, including intake requirements.

I would deduct this from the total delay of 30 months, less 16 months previously deducted on account of waiver, leaving a period of 7 months of unexplained delay.

i) Actions of the Applicant [ 91 ] Actions of the Applicant falling short of waiver can be considered in assessing the total period of delay. I am, however, mindful of the words of Lamer J. (as he then was) in Mills , and Sopinka J. in Morin , that the purpose of s. 11(

b) is not to assign blame or to punish the prosecution or the police. [ 92 ] As outlined above, I am satisfied that the trial was delayed a total of approximately 1 month, from February 6, 2015, to March 6, 2015, as a result of the actions of the Accused.

I would deduct this 1 month period from the total delay requiring explanation by the Crown, a period of 6 months. ii) Actions of the Crown Crown’s Delay in Selecting Charges to Go Forward and Failure to Provide Disclosure in a Timely Fashion [ 93 ] The Crown offers little explanation either for the lengthy period of uncertainty surrounding its decision as to which information to proceed on, and whether or not the Applicant was to be joined with other individuals charged with CDSA offences arising from the same police operation.

During oral submissions, the Crown suggested that some of the uncertainty related to various pills that were seized from the Applicant’s residence. Ultimately, the Crown elected not to proceed with any charges against the Applicant alleging possession for the purposes of trafficking of either oxycodone or fentanyl. This explanation does not, in my view, fully explain the length of time that three somewhat overlapping informations charging the Applicant alone were simultaneously before the court.

Moreover, the explanation says nothing about the delay in deciding whether to join the Applicant with others on a joint information. [ 94 ] Delay occasioned by prosecutorial strategy was addressed by the British Columbia Court of Appeal in R v Ghavami , 2010 BCCA 126 . The Court confirmed that, short of a claim for abuse of process, the Crown is free to determine how it will prosecute its cases. A similar conclusion was reached by the Alberta Court of Appeal in R v Panousis , 2003 ABCA 294 . The Court in Panousis found that the Crown is in no way compelled to explain its procedural choices.

Rather, as the Court pointed out at para 5, “[reviewing] the record will inform whether or not the delays in a particular case were reasonable and whether or not the Crown properly exercised its discretion not to sever when the case was before the Provincial Court.” The Court found that the trial judge erred in principle in focusing on the Crown’s strategy rather than considering the laying of charges as just one of several factors relevant to an assessment of the overall delay. [ 95 ] In this instance, the time involved in determining which information to proceed on, and whether to join the Applicant with others on a single, joint information, closely parallels the Crown’s delay in providing timely disclosure, as more fully described below.

In other words, both types of Crown “delay” were taking place at more or less the same time. Critical Crown disclosure of the information to obtain the search warrant was not provided until April 14, 2014. Two weeks later, on April 28, 2014, the Crown formally committed to proceed on the 4 count information sworn on January 9, 2014. [ 96 ] I am satisfied that this period of delay is properly attributed to the actions of the Crown in failing to make timely disclosure to the Applicant.

In light of this finding, it is not necessary for me to determine whether this same time period is also properly described as Crown delay attributable to the Crown’s prosecution strategy or, as the Applicant contents, lack of strategy. Under the circumstances, I am not satisfied that any uncertainty flowing from the existence of multiple, overlapping informations, as described above, actually led to

any additional Crown delay in getting this matter to trial. [97] In my view, the timing of the Crown’s disclosure to the Applicant is more problematic. As such, I share the Applicant’sconcerns regarding the delay in obtaining Crown disclosure.

While I accept the Crown’s argument that the disclosure was voluminousand required vetting, and that this case was part of a much larger police operation targeting other suspects, I find that the Crown delay inthis regard was excessive. [98] The evidence reveals the disclosure was provided to the Applicant on a number of different occasions starting on December13, 2013, approximately three and one half months after the date of the first court appearance. The bulk of disclosure was provided inJanuary, February, March and April of 2014.

Unfortunately, the information to obtain the search warrant, a key piece of evidence in thismatter, was not disclosed until April 14, 2014, approximately seven and one half months after the date of the first court appearance. Evenaccepting the necessity of Crown vetting of the twenty-nine page information to obtain, the disclosure of this important materials simplytook too long.

While admittedly a case from Ontario, I note that in R v Davidson, one of the appeals considered together with Lahiry,Code J. held that a period of four months for the Crown to make initial disclosure in an impaired driving cases was excessive and foundthat half of this period was properly attributed to the actions of the Crown. [99] It follows that I am satisfied that there was a period of three and one half months of Crown delay in this instance. iii) Institutional Delay [100] As set out above, I am satisfied that a period of two months is properly attributed to institutional delay, that is from December14, 2015 to February 8, 2016.

The parties were ready and available to proceed to trial on December 14, 2015, but the matter could notproceed due to the unavailability of court time. iv) Other Reasons for the Delay [101] Neither party has cited any other reasons for the delay in bringing this matter to trial.

v) Prejudice [102] As discussed above, prejudice may be inferred from a delay because of the charges hanging over the accused’s head, restrictivebail conditions, or an impairment of the ability to cross-examine witness testimony. An appreciation of the risk of these prejudices isnecessary in determining if delay is unreasonable. [103] What prejudice was suffered by the Applicant in this instance? In this case, the Applicant was briefly in custody following hisarrest on August 14, 2013, but released on standard conditions the same date. He does not advance any argument of actual prejudice.

Hedoes, however, refer to the “exquisite agony”, of waiting for a trial date, quoting from Askov at para. 43, and of the risk of prejudice to anaccused’s defence arising by virtue of delay. [104] I accept the fact that the Applicant has suffered some prejudice as a result of the laying of these charges, no doubt exacerbatedwith the passage of time. He was briefly in custody in relation to these charges but released the same day and has been a liberty eversince. As previously indicated, the Applicant concedes that the terms of his release were not onerous. [105] However, the right afforded by s. 11(

b) is one that can often be used as both a protective shield and an offensive weapon in thehands of the accused: Askov, at para. 48. An accused should make reasonable attempts to alleviate the prejudicial effects of delay whenit becomes apparent that the accused is suffering prejudice from the delay. A failure to bring his or her plight to the attention of theCrown and the Court will become relevant in an assessment of prejudice: R v Bennett (1991), (ON CA), 3 OR (3d)193 (Ont CA) at 222, aff'd (SCC), [1992] 2 SCR 168. [106] In this case, the extent of the prejudice is limited by the Applicant’s inaction.

His failure to seek the earliest date for apreliminary inquiry or trial date strongly suggests that he was either unconcerned or indifferent to a quick resolution of this matter. Inwaiving his right to a preliminary inquiry, the Applicant also gave up the right to cross-examine the key Crown witnesses, all policeofficers, fourteen to seventeen months sooner than during the trial of this matter in February and May 2016.

In my view, the actions ofthe Applicant in this regard are properly considered in assessing the possible prejudice flowing from an impairment of the ability tocross-examine witnesses as a result of the passage of time. [107] When the length of the delay and the Applicant’s actions are considered together, some prejudice can be inferred but the extentof the prejudice is limited. Balancing [108] Before turning to the balance exercise mandated by Morin, I would recap my analysis and characterization of the various timeperiods of time that make up the total period of 30 months:

a) Total Delay: 30 months

b) Waiver – 16 months

c) Institutional Delay – 2 months

d) Actions of the Applicant – 1 month

e) Inherent time Requirements of the Case, including intake – 7 months

f) Actions of the Crown – 3.5 months [ 109 ] The consideration of the Morin factors in determining a s. 11(

b) application is a balancing exercise. As stated by Greckol J. in R v Caines , 2011 ABQB 82 at para. 577 : There is no empirical calculation to determine the tipping point at which the delay becomes unreasonable and contrary to s. 11(

b) of the Charter . Rather, it is a judicial balancing act that strives to protect Charter enshrined security, liberty and fair trial interests; values that uphold the rule of law; while at once honouring the important individual and community interests in bringing a case of this complexity and gravity to trial in an expeditious fashion. [ 110 ] Further guidance on how to actually conduct the analysis was provide by McLachlin J. (as she then was) in her concurring reasons in Askov , at paras. 139 - 140 : The reasonableness of the delay may depend on a variety of factors. One is the prejudice caused by the delay.

Absent waiver, a certain prejudice in a long-delayed trial may be inferred if not rebutted by the Crown; additional prejudice, such as impairment of the right to a fair trial due to the disappearance of witnesses, may further militate in the accused's favour. Against this must be balanced factors related to the cause of the delay. Was it caused by the prosecution? If so, was the delay attributable to factors inherent in the case? Was the case one of particular difficulty? Were there unavoidable factors, such as geography or unavailability of a witness, which arguably justify the delay?

Are there unavoidable and justifiable systemic delays? On the other hand, was the delay in whole or in

part caused by the accused? Did the accused agree to all or part of the delay? Did the accused waive his right to trial within a reasonable time? The ultimate question in each case is whether, after considering all relevant factors, the prima facie excessive delay can be justified as reasonable. (emphasis added). The factors to be considered will often pull in opposite directions. Thus, it is impossible to dictate in advance how the balancing is to be done in each case. Yet certain parameters can be suggested. The accused will rarely be entitled to the benefit of s. 11(

b) where the Crown can show that the accused caused the delay or has suffered no prejudice as a consequence of the delay. On the other hand, lengthy and avoidable delay caused entirely by the Crown's sloppiness or inattention, or by unjustified delays in the legal system, will frequently entitle an accused to the benefit of s. 11(b). [ 111 ] In this case, the overall period of delay is significant. Further, the Applicant has suffered some prejudice. His security interest was affected by the delay in that he faced stress occasioned by lengthy exposure to unresolved criminal accusations.

There was also a minor prejudicial impact on the Applicant’s liberty interests, in the form of restrictive release conditions. [ 112 ] However, while the overall delay is significant, the delay attributable to the Crown has not been excessive. The majority of the delay in this instance was waived by the Applicant. A further significant period of delay arose as a result of the inherent time requirements of the case.

I am satisfied that this delay has not been excessive when all of the circumstances of the case are considered. [ 113 ] The accused suffered some prejudice and hardship, but only a portion of it relates to delay as opposed to the charges themselves. Further, there is no evidence of actual prejudice and the Applicant relies on the prejudice to be inferred from the delay in bringing these charges to a more timely conclusion.

While I accept that there is some prejudice to the Applicant, I would characterize that prejudice as falling towards the low end of the scale. [ 114 ] The three and one half month period of delay caused by the actions of the Crown in not providing more timely disclosure is significant and a matter of concern.

However, that period of delay is not so lengthy as to lead me to the view that the Applicant’s right to a trial within a reasonable time has, under all of the circumstances, been infringed in this instance. [ 115 ] Having considered all of the above, I am of the view that the total delay was not unreasonable and that the interest of bringing those charged with criminal offences to trial outweighs the Applicant’s interest in obtaining a stay of proceedings on account of delay. Conclusion [ 116 ] I find that the delay in this case is not unreasonable and that the Applicant’s s. 11(

b) Charter right has not been breached. The application is dismissed. Heard on the 8 th and 9 th day of February, 2016. Dated at the City of Calgary, Alberta this 27 th day of May, 2016.

M. David Gates J.C.Q.B.A. Appearances: Christopher Williams for the Crown Patrick C. Fagan Q.C. for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice M. David Gates _______________________________________________________ In paragraph [1] the last name “Change” was corrected to read “Chang”. In paragraph [1] s 22(

b) was corrected to read s. 11(b).