R. v. Macsanszky, 2011 ONCJ 869

Citation: R. v. Macsanszky , 2011 ONCJ 869 ONTARIO COURT OF JUSTICE (TORONTO REGION) BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — THOMAS MACSANSZKY Applicant Before Justice W. P. Bassel Written Reasons for Ruling on

Section 11(

b) Application Delivered on November 10, 2011 Ms. Sobia Virk................................................................................. Counsel for the Crown Mr. John Christie ...................................................................... Counsel for the Applicant Bassel J.: [ 1 ] Mr. Macsanszky stands charged with 4 offences, all alleged to have occurred on December 3, 2009, namely, unlawfully producing a controlled substance, cannabis sativa, contrary to Section 7 (2) (

b) of the Controlled Drugs and Substances Act ( CDSA), unlawfully having in his possession for the purpose of trafficking, cannabis sativa, contrary to Section 5 (3) (

a) of the CDSA, unlawfully having in his possession for the purpose of trafficking, cannabis sativa, contrary to Section 5 (3)of the CDSA, and fraudulently consuming electricity, the property of Toronto Hydro, of a value not exceeding $5000, thereby committing theft, contrary to Section 326 (1) (

a) of the Criminal Code . BACKGROUND TO THIS APPLICATION [ 2 ] I was assigned as the trial judge to hear on July 5, 2011, this

Section 11 (

b) Charter application to stay these

proceedings. The date of July 5 th had been set on November 24, 2010 for this application. A trial date had also been set for October 3 rd and 4 th 2011. [ 3 ] On July 5 th , no material had been filed by counsel for the applicant, and the applicant that day asked to adjourn the application to permit the preparation and filing of the supporting material. The Crown opposed the adjournment request, however I exercised my discretion and agreed to put the matter over to a new date in order to permit the proper material to be filed.

The application was argued on July 29th and September 7 th , with further written submissions also to be filed by Counsel if desired. Having considered the evidence and materials filed on this application, I reserved my decision, and on September 27, 2011, I advised both counsel that the Application was dismissed. These then, are the written reasons for that dismissal. [ 4 ] I refer to the synopsis of the alleged facts from the Crown Factum in order to set out the allegations.

It is alleged that on December 3, 2009 the police executed a search warrant for the premises at 20 Boylen Street, alleged to be occupied by the applicant. What was allegedly discovered included 1172 marijuana plants, 8.7 kilograms of dry, harvested marijuana. The premises are also alleged to have contained ballasts, bulbs, a drying room, and evidence of a hydro-electricity by pass. Also found was identification and mail in the name of the applicant.

The applicant surrendered himself to the police on December 18, 2009, was charged with these offences, and was released from the police station. [ 5 ] This a brief chronology of what transpired in this case: 1) Date of alleged offences was December 3, 2009 2) Applicant turns himself in to police and was arrested on December 18, 2009 3) Applicant released on bail on December 18, 2009 4) First court attendance on February 17, 20010 by designation, no disclosure provided, and at request of applicant, matter put over to March 12 th 5) March 12, 2010 court attendance, no disclosure provided, and matter put over to April 19 th , 2010 6) April 19, 2010 court attendance, Crown advises that an ex parte Order will be obtained in order to facilitate the unsealing and editing of the search warrant, matter put over to May 17, 2010 7) April 19, 2010 , initial disclosure provided to defence 8) May 17 th , court attendance, Crown advises it has no information regarding the Order unsealing the search warrant, matter is put over to May 31 st 9) May 31, 2010 court attendance, Crown advises that it has no material or status report regarding the unsealing of the search warrant, matter is put over to June 16, 2010. 10) June 16, 2010 court attendance, still awaiting the search warrant, and Crown states it will get the search warrant ordered, matter put over to June 18, 2010 11) June 18, 2010 court attendance, Crown advises the matter is there for purposes of unsealing the search warrant, and requests the Court to sing an Order to unseal it, matter put over to July 15, 2010, 12) July 15, 2010 court attendance, still awaiting the unsealing of the search warrant, and Crown advises that the Order to do so has gone through, matter put over to August 3, 2010, 13) August 3, 2010 court attendance, search warrant material is provided to applicant, matter put over to August 24, 2010, 14) August 24, 2010 court attendance, a Crown pre-trial is set for August 26 th , and matter is put over to September 8 th , 2010, 15) August 26 th , Crown pre-trial is done, 16) September 8, 2010 court attendance, court is advised that Crown pre-trial has been completed, applicant counsel advises he wishes to consult with applicant and request new date of October 5, 2010, 17) October 5, 2010 court attendance, Court is advised that a Judicial Pre-Trial has been set for November 24 th , and matter is put over to that date, 18) November 24, 2010 , Judicial pre-trial is conducted 19) November 24, 2010 , court attendance and Court is advised that Pre-Trial has been completed, and that July 5, 2011 was set for this

Section 11 (

b) application, and that 2 days were set for trial for October 3 rd and 4th th , 2011. 20) July 5, 2011 , applicant not prepared to launch application and requests, and is granted adjournment of Charter application to July 29 th , 21) July 29, 2011 , Charter application is commenced, and to continue on September 7, 2011,

22) September 7, 2011 , Charter submissions continue, matter is not completed, and written submissions to be provided. 23) September 27, 2011, communication to both counsel that this application was dismissed. 24) October 3 and 4 th , 2011, trial dates [ 6 ] The applicant is 40 years of age, and has no criminal record.

He turned himself into the police on December 18, 2009, and was released the same day on an undertaking given to a peace officer, on terms which included that he refrain from attending the subject premises until they were deemed safe, once weekly reporting, abstention from consuming alcohol or illicit drugs. THE POSITION OF THE PARTIES [ 7 ] Mr. Macsanszky took the position that the total delay from arrest to trial date, being 21 months and 24 days, is unreasonable, unwarranted, and breaches his right to be tried within a reasonable time as enshrined in

Section 11 (

b) of the Charter, and thus the charges must be stayed. He submitted that the Crown’s delay in providing the edited warrant thwarted his ability to properly assess the case until it was provided, and that the overall delay caused him some actual specific prejudice, but that principally, the main foundation of his complaint and position is that the inferred prejudice that flowed from the inordinate delay satisfied the onus upon him in this application. [ 8 ] Ms.

Virk, for the Crown submits, inter alia, that although the time to secure and disclose the edited search warrant was delayed, that nonetheless the total delay in this prosecution was not unreasonable, that the prejudice incurred was marginal at the highest, and that having regard to the seriousness of the charges, that there is a strong societal interest that these charges be tried on the merits and not stayed. THE QUESTION FOR CONSIDERATION [ 9 ] Have the applicant’s

Section 11 (

b) rights enshrining his right to be tried within a reasonable time been breached? If they have, nothing short of a stay must be granted. APPLICABLE LEGAL PRINCIPLES IN THIS CASE [ 10 ] The analysis here first and foremost requires clear recognition of the fact that

Section 7 and 11 (

b) of the Charter are important fundamental principles aimed at protecting people from state action or inaction, the consequence of which runs afoul of core personal rights and freedoms.

The rationale of those Sections, and the case-law is grounded on the principle that the requirement of reasonable time to trial is intended to enshrine and protect the individual rights of the accused to liberty, security of the person, and the presumption of innocence, to enable them to receive a fair trial, and not to keep the shroud of criminal charges unduly and unreasonably hanging over the head of the person, with all of the consequential stress, angst, embarrassment, cost, and other negatives that flow from unreasonable delay in disposing of the charges.

These are the primary purpose principles of those Sections. Also to be considered are secondary principles, societal principles that matters should be heard on the merits as part of maintenance of respect for the administration of justice, and society’s requirement that the person charged receive a fair trial. [ 11 ] I have, in making this Ruling, taken all of the following 4 Morin factors into account, in determining violation or not.

These are the length of the delay, waiver of any time periods, explanation for the delay, which embraces consideration of inherent time requirements for the case, actions of the accused or Crown, systemic or institutional delays, other delay reasons, and finally, prejudice to the accused. [ 12 ] This inquiry is not to be viewed through an unduly narrow prism of individual time segments, but rather requires looking at the entire period which is to be reviewed, and then determining whether, applying all of the relevant case law, Morin , Askov and all of the cases cited, to the factual scenario presented, and whether indeed the entire time period is unreasonable. [ 13 ] As I proceed with the inquiry to these questions, in addition to the aforementioned factors and principles, I am also mindful of the fact that the charges in this case are very serious, and that there are occasions where the accused person is not desirous of having an early trial, and indeed may welcome the refuge of

Section 11 (

b) in order to avoid facing trial.

[ 14 ] The onus on the applicant is to establish, on the balance of probabilities, that his rights have been violated, and the question of what is, or is not reasonable, is that critically important determination that must be made in each case on its own factual underpinning, and which requires the balancing of those competing personal and societal interests that are part and parcel of the

Section 11 (

b) inquiry. THE LENGTH OF THE DELAY [ 15 ] The outer perimeters for examination are from the date of the Information to the trial date, being 21 months and 24 days, and there is no dispute that this time frame warrants analysis as to the reasons for that period of time and the reasonableness of the period. WAIVER [ 16 ] There has been no waiver by the applicant.

THE REASONS FOR THE DELAY THE INHERENT TIME REQUIREMENTS [ 17 ] This period reflects that period of time required for counsel to be retained, disclosure to be provided, pre-trials, limits on court resources, including the actual courtroom, judge, and courtroom staff.

In addition to inherent time, there is also that period of time delay that is occasioned neither by institutional unavailability, or Crown delay or inaction, and which is depicted as neutral time. [ 18 ] Initial disclosure was provided on April 19, 2010, however the logistics of getting the edited warrant into the hands of the applicant was unnecessarily delayed until August 3, 2010, and that chronology is set out above. It has been my view, as stated by me in the case of Regina vs.

James Maxwell , following Nordheimer J., in Osei , that as part of the overall obligation of the Crown to make disclosure, that the Crown in a timely fashion should apply, (usually just a pro forma ex parte Order application) to have the warrant packet unsealed, and should proceed with reasonable dispatch to have it edited and disclosed. Ms. Virk here has responsibly acknowledged that this process took too long.

In fairness, however, while this process should not be unduly delayed, I must also recognize that this is not the only case upon which the prosecutors are working, and they must arrange to meet with the officer in charge, consult with and carefully review sensitive issues as part of the balancing of what can be disclosed, and what cannot be disclosed as part of those concerns of potentially revealing the identity of a confidential informant, for example. Ms.

Virk submits that although the Crown has a duty to disclose, citing Stinchcombe as a starting proposition, that the said obligation is triggered by the request by or on behalf of the accused. She quite correctly submits that the defence must be diligent in seeking disclosure, and (my words) , that the defence cannot lie in the weeds and do nothing. Ms. Virk also provided me with certain jurisprudence, including Beck 2008 ).J. 3513, wherein His Honour Judge Bovard ruled that the Crown is entitled to wait until the defence asks for the disclosure before it has to begin compiling it.

The Beck case also ruled that because a

Section 487.3 Order “does not put the material out of the Crown’s control, that it was the duty of the Crown to bring the application because they created the situation in which such an Order is required.” I was also referred to the Tang case, 2007 O.J. 4606 , a decision of Justice Caldwell which I believe was also considered by me when I made the Maxwell decision in 2008.

I was also referred to the Melendez decision, where Justice Chapin has adopted the reasoning from Tang . [ 19 ] With the greatest of respect to my judicial colleagues, I prefer and again repeat the essence of my Ruling in Maxwell , and what was also enunciated by Nordheimer J. in Osei , as being more persuasive and applicable.

In addition to what has already been said, I must respectfully query whether, when it is so very clear that to all intents and purposes, in what I will call a “grow op” type of case, the bulk of the Crown evidence consists of hard evidence, plants, hydroponic equipment, high intensity lights, ballasts, tables, irrigation systems, perhaps some evidence of tampering with the hydro system, and the playing of a video walk-through by a police officer showing what was in the premises. Oft times in these types of cases, the Information to Obtain the search warrant, and

Section 8 issues forms the heart of the issue to be litigated. Respectfully, I would venture to observe that any Crown Prosecutor would be fully alive to the fact that the I.T.O lay at the heart of, or is and was central to the litigation right off the bat, and that it is and would be a fundamental piece of disclosure to be produced. I cannot, respectfully, understand how or why it would be necessary, basically as a formality, that the defence must make a formal demand and only then the Crown will act.

We know that in Court 117, as a regular routine, the Crowns are handing up those pro forma unsealing Orders in order to get the ball rolling and get the edited document into defence hands. Form should not triumph over substance, and if the Crown’s obligation to disclose is a continuing one, that process should start and continue. I cannot imagine any responsible defence counsel being able to advise an accused as to possible resolution, or indeed any course of action without being able to assess fundamental

Section 8 Charter issues. I query that if, for example, an accused was unrepresented, and unaware of his or her rights, and did not make the formal request to have the unsealing done, would the Crown thus decline to take the step to unseal, edit and disclose to the unrepresented litigant, or would that happen after some magical

point in time. I think not and hope not. [ 20 ] In terms of complexity, although 2 days have been set aside for this trial, on its face at this point, it does not appear that this is a particularly complex case. I had not been advised whether a Garofoli application would be made, with regard to the validity of the warrant, nor have I received notice of any other proposed Charter applications, (other than this application).

Taking into account what would be a reasonable period to embrace the above factors, and what would also factor in a proper period to cause the warrant vetting, I believe that the period from December 18, 2009, until the initial disclosure was provided on April 19 th , 2010, 122 days (4 months) should be allotted to inherent time requirements for this case. I also find that the period from August 24 th to September 8 th , being the period from completion of the Crown pre-trial to the new date requested by the applicant, arguably might be actions of the accused, but it is set as 15 days, inherent.

ACTIONS OF THE ACCUSED [ 21 ] This phase of the analysis includes a number of competing issues. On the one hand, it is submitted by the Crown that with the April 19 th , 2010 disclosure in hand, that the applicant could have, and should have proceeded with the Crown and Judicial Pre- Trials at a much earlier stage than August 26 th , and November 24 th , respectively. Support for this position is drawn from Code J’s words in R. vs.

Richards , ( 2010 ONSC 6202 ) citing a number of cases there, wherein in essence, that although the Crown must make timely and continuing disclosure, that it need not be complete in order to keep the proper pace and progression of the litigation going forward. On the other hand, consideration must be had to the fact that the defence would want to examine the Information to Obtain, in order to assess the viability of attacking the validity of the warrant, and properly advising his client.

It is also arguable that a Crown pre-trial could have been conducted wherein a number of issues could have been canvassed, including obtaining the Crown’s position for resolution, reviewing the disclosure, factoring in a possible Garofoli application, time estimates, witnesses who would and would not be called, whether there would be any other voir dires.

Although a Crown pre-trial could be conducted before the disclosure of the edited warrant, and some things discussed, I think it would be troublesome for a defence counsel to be advising his client as to the strength of the Crown’s case without seeing the warrant and determining its strength. I find that quite often these type of cases turn on whether the warrant is upheld. In my view, to label that period from April 19 th to August 3 rd against the defence in my view is not fair. I attribute that period as being actions( or indeed inactions) of the Crown.

Although on August 24 th the defence requested the new date of September 8 th , 15 days, I have noted this as inherent. The defence on September 8 th advised the court that it wished time to consult with the applicant to October 5 th , 27 days, which thus should be actions of the accused. THE ACTIONS OF THE CROWN [ 22 ] As noted above, I have determined that 4 months be noted as inherent in nature, which also included what in my view, was a reasonable time period to cause the I.T.O. warrant editing. The edited warrant could and should have been delivered by April 19 th , 2010.

There is no valid reason as to why it was so delayed, and in looking at the transcripts, it appears that getting it moving fell between 2 stools. I find that the period from April 19th, to August 3 rd (when the warrant was finally disclosed) 104 days (3 months and 14 days) was occasioned by reason of the inaction of the Crown. LIMITS ON INSTITUTIONAL RESOURCES [ 23 ] As we know from Morin , Askov, and many other cases, this category spawns most of the problems causing delay. This is that period which starts to run when the parties are ready for trial but the system is unable to accommodate their readiness.

In the case at bar, the parties were ready to, and did on November 24, 2010 set the trial date for October 3 rd , 2011, being 10 months and 12 days. Looking at this period in and of itself, it is only slightly, by days, beyond the perimeter of the Morin , Askov guidelines. In examining the Trial Verification Form dated November 24, 2001, annexed to this Ruling as

Schedule A, in particular, the enumeration of available trial dates and counsel availability, I agree with Ms. Virk’s submission that five (5) months and six (6) days of the gross 10 months and 12 days (aforementioned) should not be debited as against either the defence or the Crown, but rather, reflects a recognition of unavoidable delay having part of its genesis in the realities of all counsel being involved in many cases and having many briefs. Thus, I categorize five (5) months and six (6) days of the gross period as systemic, and five (5) months and six (6) days as neutral.

THE PERIOD FROM OCTOBER 5 TO NOVEMBER 24, 2010 [ 24 ] On October 5 th , 2010, defence counsel indicated that the Judicial Pre -Trial had been set for November 24 th . The Crown has agreed that this period be attributed to systemic delay, namely 50 days. On this whole issue of whether the time required for the scheduling of a Judicial Pre Trial is inherent or systemic or inherent, Justice Himel in Derrelll has ruled that it is inherent. I have also taken the liberty of drawing from a very thoughtful Judgment of Judge F. O’Donnell in Phan 2010 O.J. 5737 for the following principles which I adopt.

Judge O’Donnell referred to 3 Court of Appeal decisions on this issue of proper characterisation of this time allotment. In Chartwell , 1998 CanLIT 3560, the Court of Appeal treats the period as intake in what was then the General Division, but treats the time

period while in the Provincial Court as institutional. In the case of C.R.G. , Justice Rosenberg ruled that this periodwas institutional, following the reasoning from Chartwell. The next case is Nadarajah, 2009 ONCA 118 , 2009 O.N.C.A.118 where the Court there treated this period as inherent. I adopt and prefer the reasoning from Nadarajah, however, in view of theCrown’s concession on this point, and because it was not argued on this application, this 50 day period shall be categorized as systemic. OTHER REASONS FOR THE DELAY [25] There were no other reasons causing the delay.

SUMMARY OF THE VARIOUS TIME FRAMES: INHERENT DELAY 4 ½ months ACTIONS OF THE ACCUSED 27 days ACTIONS OF THE CROWN 4 months SYSTEMIC 7 months NEUTRAL 5 months and 6 days PREJUDICE TO THE ACCUSED [26] In balancing the Morin factors, the seriousness of the offences may militate in favour of ensuring that the accused isbrought to trial. The more serious the allegations, the more tolerant society and the courts may be of any delay.

I recognize that theseriousness of the offence is not a distinct factor, but rather, the seriousness of the offence must inform the court’s consideration of eachof the Morin factors and the required balancing exercise. See Kporwodu. Part of that consideration must also include, as stated inKporwodu, not only must the Crown be vigilant in bringing accused persons to trial within a reasonable time, but the Crown has aheightened obligation to ensure that serious offences are dealt with in a timely manner.

The determination of prejudice can very well bethe pivotal question in order to decide whether the period of delay is unreasonable. I have examined the impact of this delay as itrelates to specific or actual and inferred prejudice to the applicant. [27] As stated in Quereshi (ON CA), 190 C.C.C. (3d) 453, Laskin J.A., points out that the assessment of prejudice is an important component in the

Section 11 (

b) analysis. When considering prejudice, it is not that prejudicewhich flows from the fact of being charged, but rather prejudice which is caused by the delay after being charged, and is the product ofthe delay in completing the litigation. The angst, shame, anxiety, costs, type of prejudice from the fact of being charged, which doesnot initially go into the legal mix in this analysis, can, however, become relevant, and in issue where the matter is unduly delayed.

Clearly, unnecessary and undue delay can augment prejudice to the individual, but as stated in Seegmiller, the absence ofmeaningful prejudice can lengthen the period of delay that is constitutionally tolerable. [28] If there has been a breach of

Section 11(b), as stated in Kporwodu, “there is no room for remedial flexibility if S. 11 (

b) isbreached; a stay of proceedings must be ordered.” [29] The liberty interests of a person are not just restricted to actual incarceration, but can also be impaired by the restrictionson their free movement by strict bail terms that have been imposed. The security interests include protection from the overlong

subjection to the vexations and vicissitudes of pending criminal accusations, stigmatization, loss of privacy, stress, anxiety,psychological harm, interference with a person’s familial relations. See Kporwodou. Using an objective assessment, the impugnedstate action must have a serious and profound effect on the psychological integrity of a person of reasonable sensibility.

It can alsoinclude disruption of family life and familial relations (see Mills (SCC), 1986 1 SCR 863, and New Brunswick (SCC), 1999 3 SCR 46). [30] The fair trial interests to be protected include ensuring the accused have a fair trial by endeavouring to have theproceedings conducted while the evidence is fresh and available, and to avoid the unreasonable extension of uncertainty of outcome, andsanction. [31] With regard to the question of inferred prejudice, I recognize the psychological stresses, anxiety and angst of criminalcharges pending for any period of time is exacerbated all the more so as time progresses.

This balancing process must focus on theprimary purpose of

Section 11 (

b) and also the societal objectives that charges should be heard on their merits, and that those personscharged are treated with fairness. [32] The applicant filed an affidavit and was cross-examined by the Crown. [33] Although counsel for the applicant indicated that the main thrust of the application was founded on the inferred prejudice,and not any specific prejudice, I will nonetheless address this issue. My assessment of the evidence and conclusions to this point arepreliminary only to this stage.

In his affidavit, the applicant states, inter alia, that he has been upset and worried about the chargeslooming over him, and that it has caused him anxiety. He stated that the extreme delay has caused stress to his family, and that therestrictive bail conditions have also caused him anxiety.

He also referred to tremendous financial losses, that the Bank foreclosed onhis home, that the property is still subject to a forfeiture application by the Crown, that because of the looming Crown forfeitureapplication that he has not been able to make the mortgage payments to the Bank, with ongoing accruing interest, and that he is unable tosell the property to satisfy the debt due to the property’s value being less than the amount of the bank indebtedness. [34] With regard to his liberty interests and his claim of restrictive bail terms, he surrendered himself to the police, andwas not incarcerated and was released the same day on an Undertaking.

There was no restrictive bail, such as curfew, or house arrest. In February 2010, when requested by him, the bail was relaxed to change the once weekly reporting to once monthly. There was never aterm in the bail, as he testified, requiring him to live with his father. The requirement to abstain from going to the property until it wassafe, was not only logical and reasonable, but it too was varied by March 2010, when so requested by the applicant. I was alsoinformed that by March 2010 the prohibition from consuming alcohol was also removed.

In terms of having to make unnecessary courtattendances, according to my count of the transcripts, there were 12 court attendances before the

Section 11 (

b) application, and adesignation had been filed right off the bat, wherein the applicant, as it seems to appear from those transcripts, did not in fact appear in court until July 5th, 2011, thus relieving him from that inconvenience. With the exception of the amended once monthly reporting, hewas not subject to any restriction on free movement and day to day activities. [35] When he testified on this application, he told us that he purchased 20 Boylen for $260,000 and that it was fullymortgaged, with zero down payment.

In fact, he said that the mortgage was for $270,000 to cover fees and sundry expenses for the loan. He told us that he owes more than the house was worth. He told us that the house required a great deal of remediation, opining that itmight be as high as $50,000. He told us that the reason he could not comply with the City of Toronto repair requirements was becausehe could not gain entry, air quality issues, leaking roof, hydro being cut off, a dispute with hydro, and money issues. We heard that hewas locked in a dispute with Toronto Hydro as to how much was owing, and that he disagreed with them.

Hydro at one point wasclaiming some $10, 970, and then the figure was about $7300 and ultimately the applicant settled with Hydro for $5000. It is totallyillogical that the applicant would not either more expeditiously settle up with Hydro in order to get electricity back into the house toeffect repairs, and to keep it heated to avoid damage, or, if unable to resolve the issue amicably, to pay the amount requested underprotest and seek an accounting by legal process, but at least get the lights turned back on. I agree with Ms.

Virk’s submissions that hisongoing dispute with Hydro is totally unrelated to any delay of these charges. The hydro dispute was there for him to resolveirrespective of when the case would be heard.

There is no nexus between his dispute with Hydro and the time when the case would beheard. [36] In his affidavit he spoke of suffering tremendous financial losses, and yet, when he testified, he told us not only that hebought the house without any cash equity, that the mortgage was in excess of the actual sale price, but he also told us that he wasunaware of his savings, unsure of his income, did not have funds, has not filed income tax returns for 2009 or 2010, and indeed did noteven remember when he last filed one, and he did not bring any bank or other statements.

I find that the financial problems, andremediation expenses of which he complains as being caused by trial delay, are without any merit whatever, and were not in any waycaused by, or linked in any manner to the timing of the hearing of these criminal charges. By his own account to us, he told us that thehouse value was far below what he had paid for it, and this together with the fact that he had not put any equity into it. With regard to hisconcern as to the looming Crown forfeiture of which he spoke in his affidavit, this is just a red herring.

He testified that he had not beenserved with notice of any such Crown application, and that he was not aware of any such application being considered by the Crown, hadnever caused any inquiry to be made of the Crown as to whether this option was being contemplated, and that at its highest, he opinedthat he thought it may be a possibility and no more. I am not aware of any Restraint Order having been filed, thus he was not stopped orprevented from disposing of the property and dealing with the bank.

With regard to the issue of upset, worry, and anxiety he states hehas suffered from the delay, he said that he saw a doctor, that nothing was prescribed, and that he did not go often. When asked why hedid not express his dilemma and the unique stress and financial concerns to the Crown or Court at any point, he acknowledged that henever made any outcry or caused his concerns to be known, without any real explanation as to why nothing was done. The applicant didnot provide any meaningful information with regard to any impact by reason of this delay on his family. If the applicant was indeed

suffering from the prejudice of which he spoke on this application, surely he would through his counsel make his plight known to both the prosecution and to the court at a much earlier stage. On none of the court appearances was any mention or concern as to prejudice, harm or delay concerns uttered. With regard to the issue of the applicant’s fair trial interests, nothing was put forth in either his affidavit or in his testimony to suggest that this has been impaired or imperilled. He has not spoken of any lost witnesses or lost or damaged evidence.

It would appear that the principal evidence which will be adduced by the Crown will be that of police officers, and an official of Toronto Hydro. There is no information that the police disclosure has not been provided, presumably on April 19, 2010, ( with the exception of the edited ITO), and we know that the Toronto Hydro have provided certain documentary material, and we have heard as to the tangible items allegedly found at the residence.

The nature of this proposed evidence is not prone to deterioration, it is enduring, and there is no evidence that the applicant is in any less favourable position at this point than at any earlier point with regard to testing the evidence and making full answer and defence. [ 37 ] While I am aware that an inference of prejudice to an accused’s security interests can be inferred by passage of time and delay, and the inference strengthens as the clock continues to tick, the inference is not inevitable, and in this case, where the applicant has provided his affidavit and testified on this application, I do not believe that more prejudice than what the applicant has spoken of should be inferred.

At its very highest, the cumulative effect of any prejudice put forth is very marginal. The total period of Crown and systemic delay is just above the normal guidelines, and in my view, the very limited prejudice that was sustained in this case warrants the extension of the period of delay that is constitutionally acceptable. In balancing all of the interests, the period of time here was not unreasonable.

I find that not only is there an absence of any meaningful prejudice, but also the charges are serious, and there is a strong societal interest in having these charges heard on the merits. [ 38 ] A stay should only be granted in the clearest of cases. The applicant has not, on the balance of probabilities established that his

Section 11 (

b) rights have been breached, and thus this application is dismissed. Released: November 10, 2011 Justice William P. Bassel