R. v. Glaros, 2014 ONCJ 65

Citation: R. v. Glaros , 2014 ONCJ 65 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANTHONY GLAROS Before Justice P. HARRIS Ruling on

Section 11(

b) Application Reasons for Judgment released on February 6th, 2014. N. Delgado ....….................................................................................................... for the Crown A. Romain... …...................................................................................................... for the Defence Harris, J.: [ 1 ] ​Anthony Glaros was charged with impaired operation of a motor vehicle and excess alcohol on September 23 rd , 2011. The Information was sworn on October 3, 2011. On January 9th, 2013, the second day for trial, the Defendant applied for a stay of proceedings pursuant to sections 11(

b) and 24(1) of the Charter on the grounds that his right to be tried within a reasonable time had been infringed. As a result of the late filing of a number of court appearance transcripts which were unavailable until just days before the return of the s. 11(

b) application, the “Delay Application” was deferred until after the trial was completed (should the Defendant be found guilty). On June 7th, 2013, I found the Defendant guilty of the “over 80 mgs.” charge and this delay application was adjourned to eventually be heard on January 2 and 3, 2014. After hearing evidence and extensive submissions from counsel on January 2nd and 3rd, 2014, I dismissed this Application, with reasons to follow. These are my reasons. The Chronology [ 2 ] Oct. 3, 2011 : Date Information sworn; charges were pending from date of arrest, Sept. 23, 2011. Delay calculations start from October 3rd, 2011, according to s. 11(

b) case authorities. [ 3 ] Nov. 1, 2011 : First appearance; Defendant requests adjournment to retain counsel. Allocation of delay from previous date to this date ─ neutral intake . [ 4 ] Dec. 6, 2011 : Second appearance; counsel partially retained, disclosure provided. Allocation of delay from previous date to this date ─ neutral intake . [ 5 ] Dec. 21, 2011 : Third appearance; Defence and Crown pretrial discussions continuing; Defence requests adjournment for further resolution discussions.

Allocation of delay from previous date to this date ─ neutral intake . [ 6 ] Jan. 4, 2012 : Fourth appearance; Defence and Crown in continuing resolution discussions. Allocation of delay from previous date to this date ─ neutral intake . [ 7 ] Feb 1, 2012: Fifth appearance; Resolution discussions continuing, judicial pretrial set for Mar. 5, 2012. Case remanded to date of judicial pretrial. Allocation of delay from previous date to this date ─ neutral intake .

[8] Mar. 5, 2012: Sixth appearance; Defence previously advises that judicial pretrial no longer required and indicates ‘Defenceaccepts resolution proposal.’ On this date Resolution offer rescinded due to new charges. Judicial pretrial rescheduled for Mar. 29, 2012.Allocation of delay from previous date to this date ─ neutral intake. (Inherent time requirements include all of the steps taken until bothsides are ready to set a date for trial including…pre-trial meetings: R. v. Morin (SCC), [1992] S.C.J.

No. 25 at paras. 41,42 – See Inherent Delay heading below). [9] Mar. 29: Seventh appearance; judicial pretrial conducted on this date. Trial date set for one day, August 24, 2012, byagreement of counsel on trial verification form.

Defence counsel indicates on the record that “we’re prepared to set a one day trial”and indicated he is available for trial the second week of May and thereafter and “there’s no further preparation that’s required.”Allocation of delay from previous date to this date ─ neutral intake. (While some authorities have held that delay caused to conduct ajudicial pre-trial is institutional delay (See: R. v. G. (C.R.) (ON CA), (2005), 206 C.C.C. (3d) 262 (Ont.

C.A.)), themore recent authorities have concluded that this type of delay is part of the inherent time requirements of the case and carries neutralweight in the s. 11(

b) analysis. As stated in R. v. Tran 2012 ONCA 18 , 2012 ONCA 18: “a judicial pre-trial to set the trialdate(

s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the systemand thus protect the Charter rights of Accused generally in presentation of their cases provided the Court is available for a judicial pre-trial within a reasonable time.” (See also: R. v. Khan (2011), 2011 ONCA 173 , 270 C.C.C. (3d) 1 at paras. 44-5 (Ont. C.A.); R.v. Emanuel 2012 ONSC 1132, at paras. 14-15)). [10] Aug. 24, 2012: Eighth appearance; Defendant arrived for trial at 10:30 am. Discussion with Justice B. Cavion in courtregarding fact he was pre-trial Judge.

Defendant elects to proceed to trial before a different jurist. Record indicates case was transferredto available court at approximately 11:00 am. Trial commences as a blended voir vire in respect to a Charter Application allegingbreaches of the Defendant’s

section 8, 9, and 10 (

b) rights. After the matter proceeded to the end of the court day, lengthy discussionsensued about available dates for continuation. Trial was adjourned to January 9th and 10th, 2013 for further evidence. (See allocation ofdelay to Aug. 24, 2012, below under ISSUE A). [11] January 9, 10, 2013: Ninth appearance: case proceeds with continuing blended voir dire on Charter applications while hearingtrial evidence at the same time (Charter I). New Charter Application alleging breaches of sections 7 and 11(

b) of the Charter filed, andfor reasons stated on record (transcripts not filed with adequate notice in accordance with the Rules) these Charter Applications (CharterII) were adjourned for later hearing. Trial was adjourned to February 6th, 2013 for further evidence on voir dire. (See allocation of delayto January 9th, 2013, below under ISSUE B). [12] February 6th, 2013: Tenth appearance: case proceeds with continuing blended voir dire and submissions on Charter IApplications while hearing trial evidence at the same time.

Trial adjourned to Feb. 13th, 2013 for judgment on the Charter IApplications ─ allocation of delay to Feb. 6th, 2012 ─ inherent delay. (Inherent time requirements for further evidence when initial trialestimates prove be insufficient: R. v. Allen (1996) (ON CA), 110 CCC (3d) 331; 1 CR (5th) 347; 92 OAC 345 (Ont.C.A.)). [13] Feb. 13th, 2013: Eleventh appearance: judgment rendered on Charter I Applications. Applications are dismissed andintoxilizer results are admitted into evidence.

Trial adjourned to continue March 5th, 2013 ─ inherent delay. (Time required forconsideration of all evidence and submissions over previous four trial dates in order to render judgment - part of inherent trial process). [14] March 5th, 2013: Twelfth appearance; trial proceeds with Defendant testifying and submissions on trial issues commenced.Trial is adjourned to March 25th, 2013 for a voir dire hearing on the admissibility of the hearsay statements of Catherine Kang pursuantto the principled exception to the hearsay rule ─ inherent delay. (Inherent time requirements for further evidence when initial trialestimates prove be insufficient: R. v.

Allen, supra.) [15] March 25th, 2013: Thirteenth appearance; case continues with voir dire Application for admission of the hearsay statement ofMs. Kang for the truth of its contents. Trial adjourned to April 22nd, 2013. (See allocation of delay to March 25th, 2013, below underISSUE C). [16] April 22nd, 2013: Fourteenth appearance; voir dire on hearsay statement continues.

Trial adjourned to continue on May 14th,2013. (See allocation of delay to April 22, 2013, below under ISSUE D). [17] May 14, 2013: Fifteenth appearance; voir dire concluded and a statement of agreed fact was admitted in respect to the hearsaystatement. Defence applied to reopen and further defence evidence was admitted and submissions concluded after which the trial wasadjourned for judgment on the impaired operation and excess alcohol issues to June 7th, 2013 ─ inherent delay. (Inherent timerequirements for further evidence when initial trial estimates prove be insufficient: R. v.

Allen, supra.). [18] June 7th, 2013: Sixteenth appearance; judgment rendered and Defendant found guilty of the “over 80 mgs.” charge andacquitted of the impaired operation charge. Case is adjourned to October 4 and 7, 2013 for hearing of Application regarding Charter IIissues.

Allocation of delay from previous date to this date ─ inherent delay. (Time required for consideration of all evidence andsubmissions over previous seven trial dates in order to render judgment - part of inherent trial process). [19] October 4, 5, 2013: Seventeenth appearance; Charter Applications were not proceeded with on these dates because of the factthat I was unavailable due to bereavement leave. Case was rescheduled for hearings to January 2nd and 3rd, 2014. Inherent delay ─Defence not making an issue of the delay from … [June 7 to October 4th]: “from the point today to then.

I don’t think that would bematerial to Your Honour’s decision…”Transcript, June 7, 2013, Page 14. [20] .January 2, 3, 2014: Eighteenth appearance; Charter Application under

section 11(

b) proceeded with.

Section 7 Applicationabandoned.

Section 11(

b) Application dismissed with reasons to follow and Defendant sentenced on “over 80 mgs.” charge ─ inherentdelay to these dates. (When a judge who is seized of a matter falls ill [or is required to contend with family-related health issues] thedelay will be part of the inherent time requirements of the case, not counting against the Crown or the defence: R. v. MacDougall, (SCC), [1998] S.C.J. No. 74).

Inherent Delay [21] First, the defence takes the position that for a relatively uncomplicated drink/drive case, the Court should allocate 2 months toaccommodate neutral intake functions in accordance with R. v. Morin (SCC), [1992] 1 S.C.R. 771 (SCC). In Morin, itwas also stated that when adjournments take place for continuing pre-trial discussions, that delay is to be classified as “neutral intake.”The time it took for Crown counsel to make a decision about a reduced charge or the fact an offer was retracted when Mr. Glaros wascharged with further offences is irrelevant to the s. 11(

b) calculation. The point is, both counsel agreed to these delays while negotiationswere underway. And the delay necessitated by the need to reschedule a judicial pre-trial is also inherent delay as noted above. [22] As to trial readiness, Sopinka J. in Morin commented that the time required for counsel to prepare and to clear their calendarswhen taking on a new case, is part of the inherent time requirements of the case. On the facts in R. v. Morin, counsel had sought “theearliest date” for trial and was given a date that was just over thirteen months away.

Sopinka J. held that this entire thirteen monthperiod was not systemic or institutional delay. He reasoned as follows: “As counsel for the defence did not indicate a readiness for trial but merely a request for the earliesttrial date, it is somewhat unclear whether the case for the defence was as yet ready for trial …I am prepared to inferfrom the totality of the facts that an institutional delay of about twelve months was involved.

This time period is the time from which the parties were ready for trial until the point at which the courts were able toaccommodate this case.” [Emphasis added.] [23] Accordingly, ISSUE A, or the allocation of delay to the first trial date, Aug. 24, 2012, will be resolved as follows:

(1) Mr. Romain stated on the record March 29th, 2012 that as of the second week of May, 2012, he was available for trial: Transcript page 4; thatrepresents one and one-quarter months inherent delay.

(2) Mr. Romain at that time also stated: “there’s no further preparation that’srequired.” However the Crown must also have an opportunity to prepare for trial. Under the Rules of The Ontario Court of Justice inCriminal Proceedings, the Crown is entitled to a 30 day notice period to prepare and respond to Charter motions which were filed in advance of the August 24th, trial date: R. v. Murphy 2013 ONSC 6272.

I therefore allocate a further 30 days to trial preparation; (3)deducting a total of two and one-quarter months of neutral or inherent delay from four and three quarters month s to August 24th is assessed as 2.5 months. Analysis of Delay to January 9, 2013 [24] Defence counsel in the instant case, submits that the trial coordinators erred in placing the first day of trial in a court in whichthe judicial pre-trial judge was presiding and that mistake lead to the trial not being completed resulting in the need for a second trialdate ─ which resulting delay should be assessed as institutional.

Respectfully, I do not agree. First, the Defendant did not arrive at courtuntil 10:30 am and it appears from the record (Transcript I August 24, 2012, page 6) that the case was to be traversed to another trialcourt “starting at 11:00” am. Second, there was no possibility that this trial with (at that time) one Charter Application under sections 8,9, and 10(

b) would have been completed in one day even if it had started at 10:30 am; subsequent dates are deemed inherent delay wheninitial trial estimates prove be insufficient, R. v. Allen, supra. Third, while the Supreme Court has held in R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.) that defence counsel were not required to hold themselves “in a state of perpetual availability”, here,the defence was almost completely unavailable, offering only October 11th, and December 10, 11, and 12. 2012.

Taking all of theforegoing reasons into account, I have determined that the four and three-quarter months to January 9th, 2013 should be consideredinherent delay as a result of the following commentary in R. v. Allen, supra: When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete thatcase: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional courttime when initial time estimates prove inaccurate: R. v.

Hawkins (ON CA), (1991), 6 O.R. (3d) 724 at 728 (C.A.),aff'd, (SCC), (1992), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip reflex, (1993), (ON CA), 80 C.C.C. (3d)167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b)calculus. The recognition and treatment of such inherent time requirements in the s. 11(

b) jurisprudence is simply a reflection of thereality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with alegitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs ofall cases.

When a case requires additional court resources the system cannot be expected to push other cases to the side andinstantaneously provide those additional resources. [25] Accordingly, the delay referred to in ISSUE B above, between trial dates August 24, 2012 and January 9th, 2013 should beallocated to the inherent category.

Analysis of Delay from March 5th to April 22 (The Kang Voir Dire) [26] Defence counsel in the instant case, submits that the Crown supplied mandated disclosure of the address and contactinformation of Catherine Kang to the defence so late in the proceedings (December 12, 2012) the information was useless, “the evidencewas effectively lost,” and having no opportunity to bring the witness to court under subpoena, the Defendant had no choice but to applyfor a voir dire for the purpose of obtaining a ruling that her hearsay statement could be used by the defence for substantive purposesunder the principled exception to the hearsay rule.

The defence argues that these additional trial days should be assessed against theCrown for having placed the defence in a position where it had no alternative but to proceed with this two day application. Respectfully,I do not agree. [27] First, the application had no realistic chance of success, particularly in respect to the reliability requirement, given the realitythat any trier of fact would have had virtually no basis on which “to assess the statement’s truth and accuracy,” this being the statement

of a passenger who had been in the Defendant’s vehicle who was interviewed by police briefly as she stood next to the car: R. v.Khelawon 2006 SCC 57 , [2006] 2 S.C.R. 787 (S.C.C.). Second, it was clear that Ms. Kang was not willing to assist theDefendant in any way. [28] In her statement she said that the Defendant had not consumed any alcohol in her presence since she met him at 10:30 pm (hewas arrested at 1:10 am) and she did not notice any signs of intoxication.

Further, she did not notice any weaving on the road prior to thevehicle being parked on Sherbourne Street, Toronto, because she was “watching videos” on her cellphone. On balance, her evidencewould have been helpful to the defence, if she maintained that position in her testimony. The problem is that, according to P.C.Rhandawa, “she does not want anything to do with the case” and refused to allow her contact information to be given to the defence. Shemoved shortly after the date P.C. Rhandawa spoke to her by telephone. After later attempting to contact her through her father on anumber of occasions, P.C.

Rhandawa testified he was “threatened by the father not to call him again.” [29] The point to being made is that it is arguable on these facts that the defence was attempting to obtain the value of this witness’statement without the inconvenience of her testimony which may well have been less than helpful. In the face of this hostility from a so-called “chill buddy” of the Defendant, I am not satisfied that had the witness, Ms. Kang, been available for trial, that her evidence wouldhave ultimately assisted the Defendant. It is important to note that Ms.

Kang was the passenger in his vehicle and ostensibly his friend.Indeed, Mr. Glaros testified that he had her “cell number” and called her after his release and “apologized for the night and got no reply.”He made no other efforts to locate or contact her except emailing a mutual friend, Mark who was out of the country. He was not aware ofany efforts made by his counsel to reach her. In my view, it is pure speculation that the availability of her evidence would have assistedthe Defendant rather than harming his case.

Indeed, even if she were brought to court by the police, it would be highly unlikely that anyexperienced defence counsel would have summoned her directly to the witness stand. To justify this additional trial delay, I would haveto be satisfied that had the “Kang” evidence been available it would have assisted the defence in a material way: R. v. Hayes [2003] O.J.No. 4590 (C.A.) at para. 35. I am not so satisfied. In terms of the allocation of delay from March 5th to April 22nd, ISSUES C & D, Iwould attribute responsibility for that period to the defence.

At the very least it was inherent delay as a result of underestimated courttime needed for all trial issues. The defence argues it was delay caused by the Crown for not providing disclosure of her contactinformation in a timely manner resulting in the loss of her evidence. [30] The Crown is placed in a difficult position when a witness states that she does not want her contact evidence released to thedefence. The record discloses that the Crown and police made reasonable efforts to contact Ms. Kang and bring her to court.

Rather thanproviding the contact information long after it was clearly useless to the defence, the better Crown practice would have been to have sought a “Stinchcombe” (SCC), [1991] 3 S.C.R. 326 ruling from the Court on the first trial date August 24th, 2012.Still, because I am not satisfied the defence exercised reasonable diligence in ensuring the presence of this “friendly” witness at trial orthat she would necessarily have assisted the Defendant if she testified, I have concluded that the fairest disposition of this delay issue isto assess it as part of the inherent time requirements when the court time required is underestimated.

Further Analysis of Delay Issues [31] In my view, in the instant case, applying Allen, supra, when the Accused elected to present a Charter Application undersections 8, 9, and 10(

b) on August 24, 2012, a substantial re-adjustment was necessary in terms of trial time requirements. Havingasserted “we’re prepared to set a one day trial”, the underestimation of trial time required naturally results in an assessment that allsubsequent delay beyond the one day requested, must be allocated as inherent according to R. v. Allen. I would attribute the entire 10months delay after August 24th, 2012, including the Kang voir dire, to the inherent time requirements needed for the system to respondto the request for additional trial dates.

Further, in view of the amount of additional time required to complete the case and the attemptsmade at every stage to obtain the earliest continuation dates, I regard the 10 month period it took to complete the trial (to June 7th, 2013)as both reasonably expeditious considering the fact seven further trial dates were accommodated and as well, properly reflective of theinherent time requirements needed to reschedule all of the necessary trial litigation to ensure that all issues raised were properly aired andcarefully considered. In

summary, I would not hold the Crown responsible for any of the delay after August 24th, 2012. [32] A strict adherence to the binding case authorities, in my view, has the effect of nstitutional delay in this case to theperiod of systemic delay leading up to the first trial date (August 24, 2012) ― a mere 2.5 months.

If I am wrong in this assessment andthe thirty minute (or so) delay in transferring the trial to a different court, on August 24th, 2012, necessitated a second trial because thesystem was not able to provide the Defendant with a full day for trial ─ then an additional 4.5 months institutional delay must be addedto the calculation resulting in an effective total institutional delay allocation of seven (7) months.

Prejudice [33] Additionally, the defence position is that in addition to the failure to provide a full day for trial, the “Kang contact information”disclosure delay to December 12, 2012 brought about the loss of this witness’ evidence and impaired the Defendant’s ability to defendhimself on these allegations ─ all of which resulted in a substantial degree of prejudice to the Defendant’s fair trial interests. As notedabove, I understand the Defendant’s position on this issue ― but I just cannot agree that the “loss” of this evidence had any meaningfulramifications.

First, she was his friend and he was driving her home. Second, Mr. Glaros had a working telephone number for her formonths after his arrest. Third, he knew where she worked, who her friends were, and the area in which she lived. And yet there is noevidence he took any steps to find her and speak to her (besides calling her once and getting no reply and calling a mutual friend who wasout of the country), let alone any effort to secure her attendance at court.

As noted above, the hostility she and her family displayedtowards any involvement in this case leaves the unmistakable impression she would not have assisted him in his defence. [34] The Defendant testified about the effect of these charges or him, and filed an affidavit detailing the prejudice he feels he hassustained. He stated that as a result of the delay in completing his case, he has experienced enhanced stress and anxiety with eachadditional trial date as well as financial stress that has been extremely taxing on him and his family. The various trial events were

frustrating and caused added stress. He also states the unavailability of Ms. Kang as a witness was distressing and added to his anxiety.There is no doubt that there is considerable stress and anxiety that could be inferred from the point of view of a Defendant facing somany different days for trial. I do note that no medical evidence was filed. It must be said that self-diagnosis is often not the mostreliable evidence. There is a modest evidentiary burden on the Defendant to establish that the adverse health effects are attributable todelay if the evidence is to be given any significant weight.

There is no requirement that medical evidence be tendered, but his evidencewould be more persuasive if his health conditions could be established objectively and independently as being caused by the delay totrial. [35] In the end result, I am satisfied that the Defendant has suffered a modest degree of actual prejudice to his security interests as aresult of trial delay on these charges causing increasing stress, anxiety and a negative impact on his work and family.

The onequalification that would temper that assessment is the fact there were other charges proceeding at the same time, one of which wasarguably more serious (personation). Still, the financial costs of a considerable number of court appearances, represents an additionalprejudicial impact. And it must be said that a relatively modest degree of inherent prejudice can be inferred in respect to this Defendantas a result of the general stigma, and the vexations and vicissitudes of 7 months of systemic delay in having these pending criminalaccusations concluded.

I do note though that there has been no assertion of prejudice to his liberty interests. I conclude that there iscredible evidence which I accept that he has suffered a degree of actual prejudice to his security interests as a result of trial delay in termsof stress, anxiety and financial distress. [36] In my view the appropriate characterization of prejudice in this case considering the lack of any negative impacts on his libertyinterests should be considered “modest” but not insignificant.

The Morin Factors [37] Whether delay has been reasonable is assessed by considering the length of the delay, less any periods that have been waived bythe defence, and then by taking into account the reasons for the delay (inherent time requirements, Accused’s actions, Crown’s actions,limits on institutional resources), the prejudice to the Accused and finally by balancing the interests that s. 11(

b) seeks to protect: R. v.Godin, 2009 SCC 26 , [2009] S.C.J. No. 26 para 18. Accordingly, the issues under consideration will be dealt with in theabove-noted order in accordance with the analytical steps articulated by Sopinka, J. in R. v. Morin (SCC), [1992] 1S.C.R. 771 at 778, and considered in arriving at a s. 11(

b) conclusion:

(1) Length of delay: The time from the laying of the charge to the last trial date is about 21 months which calls for an inquiry. It goeswithout saying that the Crown has the responsibility to bring the Accused to trial and ensure that trial proceedings are not undulydelayed.

(2) Waiver of time periods: According to Morin, supra any agreement by counsel to a future date does not constitute a waiver, andaccordingly there have been no delay waivers in this case.

(3) Reason for the Delay: (

a) Inherent time requirements ─ A normal intake period in which all preliminary activities should take place is generally 2 months forthis type of case. However, based on the conclusions under the “Inherent delay” heading above, I have determined that the period fromcharge to set date should be allocated as an inherent or neutral time period. In addition, there is an inherent delay calculation attributableto trial readiness issues in the months following the setting of the trial date. I have assessed a period of two and one-quarter months underthe category of ‘trial readiness’ inherent delay.

Further, for reasons indicated above, I have allocated the ‘Kang voir dire’ delay to theinherent category. (

b) Actions of the Accused – As noted under the “Kang Voir Dire” heading above, but balancing all factors, this delay was deemedinherent. (

c) Actions of the Crown – As noted under the “Kang Voir Dire” heading above, but balancing all factors, this delay was deemedinherent. (

d) Limits on Institutional Resources – At the highest, the systemic delay in this case is 7 months which is below the classic 8-10 monthdelay guidelines as formulated in seminal decisions such as Ascov/Morin. The delay, while not ideal would represent a constitutionallyacceptable period of delay. (

e) Other reasons for delay – There are no other reasons for delay.

(4) Prejudice to Accused: I have determined that the prejudice in this case is relatively modest for the reasons noted above.Additionally, the authorities (see R. v. G(C.R.) (ON CA), [2005] O.J. No. 3764 (C.A.)) would suggest that thetolerable delay in this case would be closer to the upper end of the 8-10 month guidelines having regard to the fact that there were no realdelay impacts on his liberty interests. Balancing [38] Bearing in mind the Ontario Court of Appeal directions in R. v. Qurereshi (ON CA), [2004] O.J. 4711 (C.A.)and R. v.

Seegmiller [2004] O.J. 2004 (C.A.), the societal interest in a trial on the merits outweighs the Accused and society’s interest ina trial without unreasonable delay, given the delay and prejudice in this case, in my view.

Conclusion [ 39 ] A seven month period of delay, while not ideal, is within constitutionally acceptable levels, considering the modest degree of actual prejudice. As a result of the above analysis, I have concluded that the Defendant’s

section 11(

b) Charter rights have not been breached and the Application will therefore be dismissed. P. Harris, J. February 6 th , 2014.