R. Truong, 2011 ONCJ 740

Citation: R. Truong, 2011 ONCJ 740 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ GIA LOI TRUONG - and - HUNG QUOC TRUONG ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) A. Shachter For the Crown/Respondent A. Ghosh For the Defendants/Applicants Heard: August 8, 2011 REASONS for RULING (Charter, s. 11(b)) MELVYN GREEN, J.: A. INTRODUCTION [1] A substantial marihuana Ògrow opÓ was discovered during the execution of a search warrant on June 9, 2009 at a houseoccupied by Gia Loi Truong and Hung Quoc Truong, father and son.

They were charged with production of marihuana and possessionfor the purpose of trafficking in marihuana that same day. Their trial was scheduled to commence in the Ontario Court of Justice on December 14th of this year, more than two and half years after they were first charged. Gia Loi Truong and Hung Quoc Truong(hereafter, the applicants) advanced a Charter s. 11(

b) motion on August 11, 2011. In brief oral reasons delivered at the close of thehearing, I granted their motion, ruling that the applicantsÕ right to be tried without unreasonable delay had been infringed. Rather thancompound the delay by reserving to prepare reasons for my ruling, I then stayed the proceedings. I undertook to provide fuller reasonsin due course. They follow. B.

SECTION 11(b): THE ANALYTICAL FRAMEWORK [2]

Section 11(

b) of the Charter provides that Òany person charged with an offence has the right to be tried within a reasonabletimeÓ. The primary interests protected by this provision are the security of the person, liberty and fair trial rights of an accused. Societalinterests (including that criminal charges, particularly serious ones, are tried on their merits and ensuring that those charged with criminaloffences are not only brought to trial but quickly and fairly) are also essential to the s. 11(

b) assessment: R. v. Askov (1990), 1990

45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.), at 474 - 477; R. v. Qureshi (2004), (ON CA), 190 C.C.C. (3d) 453 (Ont.C.A.), at paras. 8 - 9; R. v. Godin (2009), 2009 SCC 26 245 C.C.C. (3d) 271 (S.C.C.), at para. 40 and R. v. Cherian, [2011]O.J. No. 3698 (S.C.J.), at para. 13. [3] The factors that must be considered in determining whether an accusedÕs s. 11(

b) right has been infringed are long settled: R.v. Askov, supra; R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.). They include: 1. Length of the delay; 2. Waiver of individual time periods; 3. The reasons for various periods of delay, including: (

a) Inherent time requirements of the case; (

b) Actions of the defendant; (

c) Actions of the Crown; (

d) Limits on institutional resources, and (

e) Other reasons for delay; and 4. Prejudice to an accusedÕs protected interests. [4] ÒWhat is importantÓ, as said by McLachlin J. (as she then was) in her concurring opinion in Morin, supra, at p. 30, Òis howthose factors interact and what weight is to be accorded to eachÓ. This analysis requires a judicial ÒbalancingÓ of the length of thedelay as evaluated in light of the relevant factors and the interests, both individual and societal, protected by the constitutional provision. As said in R. v.

Godin, supra, at para. 18: Whether delay has been unreasonable is assessed by looking at the [total] length of the delay, less any periods that have beenwaived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s.11(

b) seeks to protect. As illustrated by the instant case, adjudication of s. 11(

b) claims typically turns on the legal characterization of particular periods ofdelay and an assessment of the prejudice claimed by a defendant. [5] As with all assertions of Charter infringement, the applicants must establish their claim that their s. 11(

b) rights have beenviolated. However, there is some distribution of the evidentiary burden with respect to the reasonableness of particular time periods. Forexample, in R. v. Askov, supra, at p. 480, the Supreme Court emphasized that, Ò[i]n all cases it will be incumbent upon the Crown toshow that the institutional delay in question is justifiableÓ. (See, also, R. v. Morin, supra, at p. 14, and R. v. Godin, supra, at para. 29) [6] No bright-line rule determines when pre-trial delay becomes unreasonable.

However, in Morin the Supreme Court affirmedadministrative ÒguidelinesÓ that contemplate a range of eight to ten months for permissible institutional or systemic delay in the case, ashere, of a one-stage provincial court trial. (See, also, R. v.

G. (C.R.), (2005), (ON CA), 206 C.C.C. (3d) 262 (Ont.C.A.), at paras. 16 - 19.) This metric must not be confused with a fixed limitation period; the duration of constitutionally acceptabledelay depends on a variety of factors, including the nature and extent of the prejudice suffered by accused persons as a result,importantly, not of their charges but, rather, of the delay attending their prosecution. [7] Further, the Morin guidelines should not be read as a frozen expression of s. 11(

b) reasonableness. This approach risksentrenching delay and the prejudice the provision is intended to remedy. There is no evidence before me of any sudden or unusualdemand on institutional resources. Accordingly, and as said by the Supreme Court in Morin, at p. 21, where, as here, a jurisdictionÕsÒcaseload has been constant over a substantial period of time the delay envisaged by the guideline may be regarded as excessiveÓ.Likewise, in R. v.

Sharma (1992), 71 C.C.C. (3d) 186 (S.C.C.), released concurrently with Morin, the Court reasoned that the jurisdictionin which that case arose had by then Ð some twenty years ago Ð ample time to address the problem of systemic delay; as a result, asstated at p. 194, Òthe lower range of the guidelines for institutional delayÓ was to be applied in the s. 11(

b) calculus. Indeed, thenormative inclination in the nearly two decades since Morin is in the direction of reduced tolerance for institutional delay. For example,in R. v. Stephens, [2007] O.J. No. 3500 (S.C.J.), Molloy J. observed, at para. 67, that, Òin determining when delay can be said to beÔunreasonableÕ, courts are increasingly looking to the bottom of the Morin guidelines, rather than to the extreme upper limitsÓ. (Seealso: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.), at para. 74; affd. (2004), (ON CA), 190 O.A.C. 24; R. v. Osei,[2007] O.J. No. 768 (S.C.J.), at paras 39 - 40; R. v. Donaldson, [2010] O.J. No. 72 (C.J.), at para 21.) [8] Assuming a breach of a defendantÕs s. 11(

b) right is found, the Òminimal remedyÓ, as confirmed by the Court of Appeal inR. v. Thomson (2009), 2009 ONCA 771 248 C.C.C. (3d) 477 (Ont. C.A.), at paras. 9 - 10, is a stay of proceedings. Unlikeother claims for such relief, the standard of Òclearest of casesÓ has no application. Similarly, prejudice to a defendantÕs right to a fairtrial or right to make full answer and defence, while potential components of the ultimate balancing, need not be established to attract theconstitutional redress here sought: see Godin, supra, at para. 38. C. ANALYSIS (

a) Introduction [9] The global delay for purposes of s. 11(

b) analysis is the span between the date an Information is sworn against an accused and

the date of his or her her scheduled trial: R. v. Kalanj (1989), (SCC), 48 C.C.C. (3d) 459 (S.C.C.). Here, that interval isthe more than 30 months between June 9, 2009 and December 14, 2011, the date the applicantsÕ trial was scheduled to commence. Thedefence throughout demonstrated a desire to press the matter forward. The applicants elected trial in the provincial court. They soughttarget dates to expedite the proceedings. And they were prepared to conduct a trial long before the earliest dates offered by the court.

TheCrown concedes that the applicants never waived any of the delay attending their trial, and I find no evidence of dilatory or manipulativeconduct by either applicant or their counsel. The calculation of the reasonableness of the delay occasioned in this case thus chiefly turnson the legal character of the various periods of delay and the prejudice, if any, suffered by the applicants as a consequence of that delay. (

b) The Attribution of Delay [10] The police investigation was effectively complete on the day of the applicantsÕ arrest. Despite Crown counselÕsacknowledgement that it was a Òrun of the millÓ grow-op investigation, initial disclosure was not provided to the defence untilSeptember 25, 2009, a little more than 3½ months after the applicants were released on surety recognizances the day after their arrests. The police notes, as always, required some Crown review.

However, it remains difficult to comprehend why at least initial disclosurecould not have been afforded within two months of the applicantsÕ arrest, and the Crown has offered no meaningful explanation for thefurther six or so weeks of delay. In the absence of such explanation, the additional 1½ months is, in my view, properly charged to theCrown. [11] The initial disclosure package included a copy of a Search Warrant executed at the applicantsÕ home. It did not contain theInformation to Obtain (ITO) upon which the Warrant was based. The missing ITO, as it turned out, was not sealed.

The defencerequested its disclosure on October 8, 2009. On the next appearance, October 30th, the Crown advised that four to six weeks wererequired to unseal and disclose the ITO and, as a result, the matter was further adjourned to December 1, 2009. The ITO was still notavailable for disclosure on that date and the case was further adjourned to January 12, 2010. In the interim, on December 15, 2009 to beprecise, a copy of the ITO was couriered to defence counselÕs office.

As set out in the CrownÕs factum: Given that the [ITO] was never sealed, the Crown submits that 30 days is the appropriate time period for the Crown to obtain the searchwarrant material from the registrarÕs office, review it and provide it to counsel [for the defence]. The remaining 38 days of these 68 days [between October 8th and December 15th] is attributable to Crown delay. [12] As the ITO was never sealed, I frankly have some difficulty appreciating why any additional days, let alone 30, were requiredto disclose these documents to the defence.

No explanation has been tendered as to why the police did not promptly convey copies to theCrownÕs office as part of the original prosecution brief and why, in turn, copies of the ITOs were not then provided to the defence aspart of the initial disclosure. Nor do I comprehend why (if, indeed, such is the case) the only copies of un-sealed ITOs are held by aregistrarÕs office, or why the Crown would ever need to retrieve un-sealed material from that office.

Nor, finally, do I understand whythe Crown need wait for a defence request to commence the process of reviewing (let alone retrieving) an ITO (particularly in the case ofan unsealed ITO for which no vetting or redaction to protect confidential informants is likely) as the potential relevance of a judicialauthorization in a prosecution dependent, as here, on the execution of a search warrant is by now universally understood. Theseperplexities noted, I am prepared to accept the temporal division of accountability advanced by the respondent Crown.

However, in lightof this ruling and absent a persuasive explanation, I may well approach the s. 11(

b) assessment of the disclosure of unsealed ITOsdifferently in future. In any event, 38 days (or 5½ weeks) of the total delay are here assigned to the conduct of the Crown. [13] Unfortunately, the ITO was somehow misplaced upon receipt at defence counselÕs office. An agent for the applicants learnedof the CrownÕs effort to disclose the ITO on the return date of January 12, 2010 and requested a one-day adjournment to locate themissing documents.

The defence copy of the ITOs had not been found by the next day, but in anticipation of its imminent receipt (if onlyby way of a second copy) the defence, rather than risking any delay beyond that single day, proposed scheduling a Crown pre-trialmeeting before the next appearance. That appearance was then fixed for February 4, 2010. Defence counsel then ÒmissedÓ the Crownpre-trial (which was to have been conducted by phone) and the matter was further adjourned to February 22nd with a Crown pre-trialre-scheduled for the interim date of February 16th.

The defence concedes that its failure to attend the first-scheduled Crown pre-trialtranslates into defence responsibility for this 2½-week interval. [14] The Crown pre-trial having been conducted, defence counsel, on the February 22nd appearance, advised that a judicial pre-trial(JPT) had been scheduled and put the matter over to March 24, 2010 to accommodate its occurrence.

Based on the experience of judicialcolleagues who preside in neighbouring courts in Toronto, and whose anecdotal evidence I have collected, there appears to be little if anyreason other than institutional congestion to explain a delay in scheduling a JPT for any longer than two to three weeks after it isrequested; unlike a trial, defence preparation for a trial-focused JPT rarely requires more than a sensitivity to justiciable issues, a closereading of the disclosure materials and, on occasion, a review of its highlights with oneÕs client.

If the rationale for any longer intervalis a lack of resources to accommodate a more timely JPT, then that additional delay should fairly be ascribed to institutional factors. [15] As the protraction beyond what I take to be the appropriate delay in conducting a JPT here amounts to only about a week, I amprepared to treat this entire period as part of the inherent time requirements of the case. Accordingly, I leave to another day (and morelikely another court) the challenge of reconciling the facially divergent opinions expressed by the Court of Appeal with respect to thetreatment of JPTs for purposes of s. 11(

b) analysis, as reflected, on one exemplary hand, by R. v. G. (C.R.), supra, at para. 30, R. v. Rego(2005), (ON CA), 204 O.A.C. 281, at para. 4, and R. v. M. (N.N.) (2006), (ON CA), 209 C.C.C.(3d) 436, at para. 33 (Òthe delay needed to

schedule the judicial pre-trial is properly considered to be institutional delayÓ) and, on theother, by the more recent cases of R. v. Khan (2011), 2011 ONCA 173 270 C.C.C. (3d) 1, at para. 53 and R. v. Cranston(2008), 2008 ONCA 751 244 O.A.C. 328, at para 46 (Òthe time the parties require to prepare for and conduct the pre-trial maybe an inherent time requirementÓ). Indeed, one veteran commentator concluded his recent review of this same jurisprudence by notingthat, Òfurther guidance on the Ôinherent time requirementsÕ vs. Ôinstitutional delayÕ issue is welcomeÓ: S. Latimer, ÒDefining JPTTime for S. 11(

b) PurposesÓ (2011), 84 C.R. (6th) 244. [16] In light of a resolution proposal advanced at the first JPT, defence counsel indicated on the March 24th appearance that a secondJPT was required to permit him to secure instructions from the applicants and gather certain documentation. He was prepared to then fixa Òtarget dateÓ for the applicantsÕ trial to avoid the risk of further delay, but he was advised that such conditional dates were no longer

sanctioned. Accordingly, the matter was adjourned to May 10 and then, seeemingly at the instance of the court, to May 14, 2010. [17] In discussing in his factum the procedural steps sheltered under the umbrella of Òinherent time requirementsÓ (such as bailhearings, retaining counsel and securing disclosure), Crown counsel suggests that, Ò[a]dded to this list are Crown pre-trials and judicialpre-trials [as s]ome time must be allotted for counsel to conduct these meetings to discuss the case and the possibility of resolutionÓ.

Inmy opinion, this same logic extends to efforts to obtain a clientÕs instructions respecting a possible resolution advanced by the Crown ata JPT. While counsel in other cases have sometimes taken a different view of the proper colouration of this period, I agree that, in the circumstances before me, the period from March 24th to May 14th is correctly read as part of the inherent time requirements of the caseand thus of neutral value. (By way of an analogous approach to a defence-instigated trial adjournment to pursue resolution discussions,see Code J.Õs comments in R. v. Lahiry, 2011 ONSC 6780 [2011] O.J.

No. 5071 (S.C.J.), at para. 68.) However, as thedefence had by May 14th approximately seven weeks to consider the matter, I am not inclined to similarly characterize the further twoweeks (extending to May 27th) requested by the defence to revisit the same terrain. Accordingly, these two weeks are attributed toconduct of the defence. [18] The trial date of April 4, 2011 was finally set on May 27, 2010. The first dates offered by the trial co-ordinators were in thewindow encompassed by March 14 to 18, 2011. The defence was prepared to fix trial dates as early as the first half of July 2010.

Thedefence was also amenable to the first dates offered by the court. The Crown, however, was apparently unavailable in mid-March 2011.As a result, the trial was fixed for April 4 and 5, 2011. In Godin, supra, at para. 23, the Supreme Court held that, trial Ò[s]chedulingrequires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselvesin a state of perpetual availabilityÓ. So long as any additional delay is both explained and not itself unreasonable I see no reason why theSupreme CourtÕs realistic approach to the question of counsel availability ought not to equally apply to the Crown.

While prosecutorialcarriage of most cases may be readily transferred from one Crown counsel to another (particularly in a large federal office such as existsin this courthouse), prior commitments and scheduled absences affecting the availability of essential witnesses can frustrate a partyÕsassumption of the earliest offered dates. The problem here, however, is that the Crown tendered no explanation whatsoever at to why it was unable to proceed to trial on the court-offered dates of March 14th to 18th.

While I might ordinarily overlook or neutralize suchunavailability in the assessment of unreasonable delay, the absence of any explanation for the CrownÕs inability to proceed on the first available dates leads me to treat these additional three weeks Ð between March 14th and April 4th Ð as delay chargeable to the Crown. [19] The trial dates of April 4th and 5th were confirmed on July 8th when a defence notice of election to proceed to trial in theOntario Court of Justice was formally filed. [20] Ten months and a week passed between May 27, 2010, when the applicantsÕ trial date was set down, and April 4, 2011, thedate fixed for that trial.

But for the three weeks I have attributed to Crown unavailability, the defence urges that the entire remainder ofthis interval be characterized as institutional delay for purposes of s. 11(

b) analysis. It must be borne in mind, however, that in Morin,supra, at pp. 18 and 26-27, the Supreme Court defined systemic or institutional delay as Òthe period that starts to run when the partiesare ready for trial but the system cannot accommodate themÓ. As recently and persuasively clarified, systemic or institutional delay isproperly construed as that period that Òstarts to runÓ not when the parties are ready to fix a date for trial but when they are actuallyÒready for trialÓ: R. v. Richards, 2010 ONSC 6202 [2010] O.J. No. 4958 (S.C.J.), at para. 29; R. v. Lahiry, supra, at paras. 26Ð 35.

As said by Code J. in Richards, supra, in the absence of an express record suggesting otherwise, it Òcan be inferred that [defence]counsel with other commitments would not be immediately available and that some additional time would also be needed to prepare forÉ the trialÓ. [21] There is no explicit reference in the record to every date of defence counselÕs availability in the case before me.

However, onMay 27, 2010, when the first trial date was fixed, defence counselÕs agent advised that her principal was available for trial on a number of dates commencing July 8th, significantly in advance of those dates offered by the court. I note, as well, that in the relatively simplecase of Morin, the Supreme Court, in accounting for the reality of counsel availability and preparation time, only deducted approximatelyone month from the interval between the appearance on which the trial date was fixed and the actual trial date.

In the companion case ofSharma, supra, the Court neutralized about three months of this interval to allow for counsel preparation and availability. In Lahiry,supra, at para. 37, Justice Code deducted a little under two months from the period between the trial and the date on which it was set toaccount for counsel availability and preparation. In the more complex case of Richards, supra, at para. 30, Code J. held that threemonths was Òa reasonable time to prepareÓ.

Considering the nature of the case and defence counselÕs documented expression of muchearlier availability, I am of the view that, in the absence of a more precise record, two months is more than adequate allowance for thetime required by counsel to prepare for and be free to conduct the applicantsÕ trial.

After deducting the three weeks assigned tounexplained Crown unavailability, I thus find that the institutional or systemic delay between the date on which the trial was scheduled(May 27, 2010) and the date that trial was to begin (April 4, 2011) amounts to approximately 7½ months. [22] As it transpired, the applicantsÕ trial did not proceed as scheduled on April 4 and 5, 2011, some 22 months after they were firstcharged. The unavailability of a qualified Vietnamese interpreter delayed the trial for eight further months, ultimately to December 14and 15, 2011. [23] In R. v. Beteta-Amaya, [2011] O.J.

No. 5136 (S.C.J.), at para. 21, MacDonnell J. recently commented that Ò[i]t is notuncommon that, for one reason or another, trials will either not proceed or will not be completed as scheduled and that a new date toproceed or to continue will have to be foundÓ. The attribution of the resulting delay for s. 11(

b) purposes will, as Justice MacDonnellthen said, Òdepend to a great extent on the reason why the case did not proceed or was not completedÓ (emphasis added). In manycases the reasons for the adjournment of a trial are rightly seen as part of the inherent time requirements of a case: see, for example, theCourt of AppealÕs reasoning in R. v. Meisner, supra, at para. 3, and R. v. Allen (1996), (ON CA), 110 C.C.C. (3d)331, at para. 27.

However, as MacDonnell J. makes clear at para. 24 of Beteta-Amaya, Ò[n]either Meisner nor Allen stands for theproposition that delay caused by the need to reschedule a trial or to find dates for a continuation will always be characterized as neutralÓ. [24] In Meisner, the Court of Appeal construed an unanticipated conflict as Òone of those things that happens from time to time inthe criminal process for which no one can be faulted and which almost inevitably requires an adjournment and reschedulingÓ.

In Allen,the Court noted, that the Òfailure to complete the trial within the allotted time É had nothing to do with a lack of adequate institutional

resources, the conduct of the Crown, or the conduct of the trial judgeÓ. The reason, rather, was an underestimation of the time requiredto conduct the trial as a result of the defendant belatedly changing his instructions respecting various evidentiary concessions. AsDoherty J.A. explained: That decision insured that the trial would not be completed in the allotted time and made some adjournment of the trial virtuallyinevitable.

In so holding, I do not place "blame" on the respondent for the choice he made, but merely identify the cause of theadjournment which, of necessity, precipitated some delay in the completion of the trial. [Emphasis added.] Consistent with this reasoning, the Court of Appeal has made clear that adjournments caused by a shortage of institutional resources (asin R. v. W. (A.J.) (2009), 2009 ONCA 661 257 O.A.C. 11) or Crown non-compliance with is obligations (for example, thetimely disclosure of important evidence, as in R. v.

Thomson, supra, at para. 16) are properly attributable to systemic factors, in the firstinstance, and the conduct of the Crown, in the latter. [25] In my view, the adjournment of the applicantsÕ first trial and much of the consequent delay result from the failure to ensure the Crown. As said by the Court of Appeal in R. v.

Satkunananthan (2001), (ON CA), 152 C.C.C. (3d) 321, at para. 47,the Òdelay resulting from the CrownÕs inability to provide a suitable interpreter is attributable to the Crown. (See, also, para. 29.). [26] It is undisputed that at least the older of the two applicants required a Vietnamese interpreter. As a precaution, defence counselfaxed a letter about a month before the scheduled trial date of April 4, 2011 to ensure attendance of a Òfull, court accredited [Vietnamese] interpreterÓ. Nonetheless, only a conditionally accredited interpreter attended on April 4th.

Moreover, that interpreterallowed during the course of a qualifications voir dire that the Ministry had earlier notified him that he was prohibited from interpretingin criminal trial matters. The proceedings were then adjourned to the next day (the second of the two days scheduled for the applicantsÕfirst trial), but an accredited interpreter could not attend until 2:00pm. By then it was patent that the trial would not be completed in thehalf-day that remained of the time allotted.

As the presiding judge was not seized with the matter (no plea having been entered) and asshe would not be sitting on the first available resumption dates, the matter was adjourned to permit the trial to proceed before anotherjudge on the earlier dates. [27] Further complications soon followed as the matter had to be adjourned not only to trial dates offered by the court and agreeableto both Crown and defence counsel but, as well, to the qualified interpreter. The earliest the court could accommodate the trial was inlate-July and early August, but the interpreter was not then available.

Crown witnesses were not available through the rest of August andinto early-September. Various dates offered in October were not agreeable to one or another of the parties and, as said by presiding judge, Òultimately, the first available date for two days to deal with this matter was found to be December 14th and 15thÓ of 2011. Some measure of expedition may be found in counselsÕ agreement to conduct the s. 11(

b) application on August 8th Ð a date on which theinterpreter was available (and, it seems reasonable to infer, the CrownÕs trial witnesses would not be required). [28] The applicants were not liable for the delay resulting from the frustration of their first scheduled trial dates. They had taken thenecessary step to ensure the attendance of a qualified interpreter. They were prepared to proceed to trial. They filed extensive motionmaterials well in advance of that date. They spend two days waiting for an interpreter. And they tried, if futilely, to persuade the assigned judge to hear their s. 11(

b) application on the afternoon of the second day, April 5th, allocated to their trial. I have no difficultyconcluding that the failure to provide timely and adequate interpreter services is the reason the trial had to be rescheduled. Accordingly,the 5-month period between the first trial dates in early April and the early September dates when the Crown was finally prepared toprosecute the matter are properly assigned to the conduct of the Crown.

These were five months of unnecessary delay borne by theapplicants and for which they were in no way responsible. [29] The next 3½ months or so of delay (between early September and the new trial dates of December 14 and 15, 2011) areprimarily attributable to institutional limitations.

The defence (like the Crown) was, it appears, unavailable on a few unspecified Octoberdates offered by the Court, but this hardly speaks to defence trial avoidance or delay, particularly given the applicantsÕ readiness toproceed on the original trial dates and their amenability to new trial dates well before those offered in October 2011. In R. v.

Godin,supra, at para. 23, a unanimous Supreme Court agreed that, Ò[t]o hold that the delay clock stops as soon as a single available date isoffered to the defence and is not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is notreasonableÓ. In my view, this passage aptly addresses the situation before me. [30] The materials filed by the defence well before the early-April trial dates made clear that the case would be subject to s. 11(b)scrutiny.

It is therefore discouraging that no additional effort was made by the Crown to accommodate the very earliest dates offered bythe Court (those in July and August) or to reschedule other less pressing federal matters to more expeditiously convenience theapplicantsÕ increasingly jeopardized trial. By doing nothing, the Crown allowed fuel to be added to the applicantsÕ claim that their rightto a trial without unreasonable delay had been eroded. (See, R. v.

Smith, (SCC), [1989] 2 S.C.R. 1120, at 1135, and R. v.Satkunananthan, supra, at para. 46.) [31] Considered cumulatively, more than 19 months of a total delay of 30 months has nothing to do with matters inherent to theprosecutorial process nor to any conduct of the applicants.

More precisely, some 11 months of this delay is attributable to institutionalfactors and a further 8½ or so months to the action or inaction of the Crown. [32] While the global duration of this delay is facially excessive, attention still need be paid to the extent of any prejudiceexperienced by the two applicants before any final balancing can occur. (

c) Prejudice [33] As noted earlier, cognizable prejudice in the context of s. 11(

b) analysis is that attributable to the delay, not the chargesthemselves. It may be established through evidence of actual or specific interference with protected interests or, as said in Morin, supra,at p. 23, Òprejudice may be inferred from prolonged delayÓ. Both applicants filed affidavits on which they were cross-examined at the s.

11(

b) hearing. [34] Gia Loi Truong was 50 years at the time. He Ònever imagined [his] charges would take this long to get resolvedÓ. Whileconceding that his incessant anxiety Òarose because of the charges themselvesÓ, it Òwas a terrible blowÓ when he learned the matterwould not proceed on the first scheduled trial date and would be postponed for another eight months. Although he had been takingtraditional Asian medicines to address his anxiety, increasing tension, stress-related back pain and sleeplessness led to Gia Loi Truongreceiving prescription medication, particularly after the collapse of the first trial.

Retaining counsel for the additional court dates alsocontributed to his financial burden. Gia Loi TruongÕs relationship with his younger son, with whom he and the co-accused shared acrowded house while awaiting trial, had grown very strained. Further, Gia Loi TruongÕs social life had been curtailed because of hisdepression and anxiety. [35] Hung Quoc Truong is 26 years of age. He is the co-accusedÕs Gia Loi TruongÕs eldest son. He worked in the IT industryuntil December 2010 when he was laid off, an event he attributes to the distractive effect of the stress and anxiety accompanying hisprosecution.

Like his father, he instructed his counsel to proceed directly to trial at the earliest possible date. The adjournment of thefirst trial date amplified his stress, financial burden and the intra-familial tension in his younger brotherÕs house that he and his fathershared while awaiting trial. The extension of the proceedings inhibited his social activities.

Further, he has felt restricted from travellingto the United States to seek positions compatible with his professional training and experience due to fear that he would be turned awayupon discovery of his pending charges and, as a result, permanently suspended from American entry. He also successfully completedtwo levels of interviews for a ÒGeniusÓ position with Apple in Toronto but had to back out when he learned that the final hiring step andtraining was in California. [36] The conditions of the applicantsÕ recognizances were not particularly onerous.

However, the lengthy pendency of the chargeshas directly and adversely affected the younger applicantÕs employment opportunities and precipitated health issues requiring medicalinervention in the case of the older applicant. Further, the protraction of the proceedings, certainly beyond those dates intitiallyscheduled for trial, has taken a toll on the the applicantsÕ security interests. As put succinctly in R. v. Egorov, [2005] O.J. No. 6171(C.J.), at para. 7, Òprolongation of proceedings can cause what was initially charge prejudice to become prejudice caused by institutionaldelayÓ. (See also, R. v.

Kovacs-Tatar (2004), (ON CA), 192 C.C.C. (3d) 91 (Ont. C.A.), at para. 33; R. v.

Pusic(1996), (ON SC), 33 O.R. (3d) 692 (C.J.(G.D.)), at para. 173.) Although I need not go this far to reach what Iconclude is the appropriate result, I note that in Satkunanathan, supra (a case in which no delay, either by conduct or waiver, wasattributed to the defence), the Court of Appeal, at para. 62, held that the trial judge erred in failing to Ògive effect to the inferredprejudice arising from the delay of forty-four and one half monthsÓ Ð a period reflecting not only the protraction of the proceedingsbeyond the Morin guidelines but, rather, the entire cumulative delay from the arrest of the defendants to their final trial date.

In Godin, atpara. 34, the Supreme Court held that, Ò[i]t was reasonable É to infer as the trial judge did that the prolonged exposure to criminalproceedings resulting from the the delay gave rise to some prejudiceÓ. As this caseÕs trial judge, I draw the same inference. I also find,on this record, more than minimal evidence of actual prejudice. (

d) The Balancing [37] There is some prejudice-contingent elasticity to the guidelines governing permissible institutional delay. In Morin, at p. 28, theSupreme Court observed that, Òdeviations of several months in either direction can be justified by the presence or absence ofprejudiceÓ. And Code, J., in Richards, supra, at para. 32, referred to the guidelines as Òreally more in the nature of a sliding scaleÓcontrolled by the occasion, or not, of actual prejudice. [38] I have earlier calculated that some 11 months of the global delay in this case is attributable to systemic or institutional factors.

Ihave also expressed my view that tolerable institutional delay in this Òrun of the millÓ case should fall closer to the bottom rather thanthe top end of the guidelines Ð that is, closer to eight months than ten. Given the nature of the charges faced by the applicants, a fewadditional months of institutional delay beyond that contemplated by the lower rung in the guidelines may not, themselves, amount to abreach of s. 11(

b) absent appreciable specific prejudice. However, in light of the cumulative delays I attribute to the conduct of theCrown, a s. 11(

b) assessment based on institutional delay alone is not imperative. [39] To repeat, I have determined that more than eight months of the total delay is properly charged to the action or inaction of theCrown. As said by Dawson J. in R. v. Yun, [2005] O.J. No. 1584 (S.C.J.), at para. 42, while we Òtolerate a degree of institutional delaybecause it is unavoidable É delay that is actually caused by the Crown is a matter of particular concernÓ. (See also, R. v. Chrostowski,(ON SC), [2006] O.J. No. 1306 (S.C.J.), at para. 61, and R. v.

Stephens, supra, at para. 68.) The cumulative delayattributable to systemic factors and the conduct of the Crown exceeds 19 months Ð more than twice as long as (or, framed otherwise,almost a year longer than) that condoned by the Supreme Court in jurisdictions, as here, with settled or relatively constant caseloads.

Inthe end, a straightforward, one-stage case that should have taken no more than 18 months, at most, to move from charge to trial(including intake, other inherent time requirements, tolerable institutional delay and approximately a month of delay attributable to theconduct of the defence), consumed some 30 months. Viewed globally, I am satisfied that the duration of the overall delay and that fairlyallocated to institutional factors and the Crown has adversely impacted those security interests of the applicants which s. 11(

b) isintended to protect. [40] Of course, the final balancing commands consideration not only of defendantsÕ interests but those of society as well, includingthe public interest in having cases, particularly serious ones, determined on their merits. Commercial marihuana cultivation is a matter ofpersistent concern. Moving from this commonplace assertion to the concrete details of the instant case, I note that there is no evidencebefore me of aggravating factors such as hydro bypasses, the presence of children or weapons, the occasion of violence or theoccurrrence or patent risk of fires.

Further, the offences with which the applicants are charged attract no minimum penalty and, uponconviction in this courthouse, often result in a sentence served in the community, at least for first offenders of unblemished antecedents,as here. [41] Balancing all of these considerations, I am satisfied that the applicantsÕ trial has been unreasonably delayed and, accordingly, astay of proceedings must follow. To be clear, I would be of the same conviction even were I to treat the appropriate administrativeguideline for institutional delay as one of ten months.

D. CONCLUSION [ 42 ] Pursuant to s. 24(1) of the Charter and for the reasons here set out, I order the charges against both applicants stayed. Released on December 7, 2011 __________________________ Justice Melvyn Green