R. v. Morris, 2011 ONCJ 154

ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) HER MAJESTY THE QUEEN C. Josic For the Crown — AND — R. Silverstein SAMUEL MORRIS — AND — MALLORY FENNELL For the Defendant Morris S. Makonnen For the Defendant Fennell Heard: March 7, 2011 Citation: R. v. Morris , 2011 ONCJ 154 REASONS for RULING (Re Charter s. 11(b)) GREEN, J.: A. INTRODUCTION [ 1 ] A search warrant was executed at a residential property in Toronto on August 5, 2009. The two defendants – Samuel Morris and Mallory Fennell – were present at the time the search was initiated.

During the course of the search a substantial amount of drugs were located, including approximately 665 grams of cocaine, more than 80 grams of methamphetamine, 35 grams of psilocybin and 746 ecstasy or MDMA pills. In addition, $510 said to be the proceeds of crime and a number of weapons (including a .22 calibre rifle, a machete, knives, a crowbar, swords, handcuffs, and several BB guns) were also seized.

As a result, both defendants were arrested and charged with a nine drugs- and weapons-related offences and a single count related to the alleged proceeds. [ 2 ] Fennell was released on surety bail the day following her arrest and Morris was released on a similar recognizance on August 14 th . Both defendants elected trial in this court, the Ontario Court of Justice. On May 10, 2010, some ten months after their arrest, their trial date was finally scheduled.

That trial date – March 7, 2011 – is some 19 months after both were first arrested and charged. [ 3 ] By way of a preliminary motion, the defendants’ claim that their right to a trial within a reasonable time, as guaranteed by s. 11(

b) of the Charter, has been violated. Accordingly, they say, all charges against them should be stayed pursuant to s. 24(1) of the Charter. In support of this application, they have filed transcripts of their various appearances in answer to the charges and affidavits

attesting to their personal circumstances and the prejudice they say they have suffered as a consequence of the delay in reaching trial. [ 4 ] The global length of the delay in this case is such as to warrant constitutional scrutiny. Much of this delay flows from the time taken to provide disclosure and, relatedly, a vetted copy of the “information to obtain” (“ITO”) sworn in support of the search warrant. These delays, says Crown counsel, are readily explicable given the nature and complexity of the case.

Further, says the Crown, delays attending Fennell’s retaining counsel impeded the progress of the prosecution. The resulting combination of what the Crown characterizes as institutional and Crown-generated delay does not, asserts the Crown, exceed jurisprudential guidelines for single-stage cases such as the one before me. B. PROCEDURAL HISTORY [ 5 ] As already noted, Fennell was released on bail the day after her arrest on August 5, 2009, and Morris some eight days later. By their first subsequent appearance, on September 24 th , Morris had retained counsel and Fennell had applied for legal aid.

On that appearance, Crown counsel advised that the “disclosure is being vetted right now” and “we should have it ... [in] one week”. “Vetting” describes the procedure whereby the Crown reviews the police brief and other materials related to the investigation to ensure that all potentially relevant materials are disclosed to the defence and, importantly in this case, that information subject to a claim of privilege or other legally protected interests is withheld from the defence.

To minimize any unnecessary appearances, the matter was adjourned two weeks, to October 8, 2009, to complete the vetting process. [ 6 ] No disclosure was available on October 8 th . Crown counsel “suggest[ed] a remand of one month” and the matter was put over to November 10 th . Fennell’s application for legal aid had been refused and she was in the process of appealing that decision.

Disclosure was still not available on November 10th and the matter was further remanded to December 1, 2009. [ 7 ] Initial disclosure was handed to Morris’ counsel in court on December 1 st – almost five months after the charges were first laid. The disclosure package contained some 80 to 100 pages, chiefly composed of copies of officers’ notes. The disclosure did not contain a copy of the ITO. Fennell was present “on her own” although she anticipated receiving a legal aid certificate. Crown counsel advised that Ms.

Josic (the assigned Crown) was available to conduct a Crown pre-trial, to which Morris’ counsel responded, “I think we have to wait until Ms. Fennell gets counsel”. The matter was then remanded to January 8, 2010. [ 8 ] That same day, December 1, 2009, Morris’ counsel faxed a letter to Ms. Josic.

Having reviewed the disclosure provided earlier that day, he requested a number of items by way of “further disclosure”, including a transcription of some illegible officer’s notes, details of an “anonymous tip” referenced in the disclosure, and “copies of all documents faxed to the issuing justice in support of the search warrant application” (that is, the ITO). It is Morris’ counsel’s unchallenged and facially reasonable assertion that he first surmised that the undisclosed ITO contained materials that likely required Crown vetting upon reviewing the disclosure brief that day.

Morris’ counsel renewed his requests on December 15, 2009, as he not yet received a response from the Crown. [ 9 ] No further disclosure was forthcoming at the next appearance, January 8, 2010. Counsel for Morris noted that he had not received a response from the Crown to either of his December letters. The matter was further remanded to January 27 th .

Fennell had lined-up counsel but was not yet able to finalize the retainer as she was awaiting the results of her appeal from a legal aid decision refusing her a certificate. [ 10 ] Fennell had still not received legal aid funding when she and Morris next appeared on January 27, 2010. Ms. Josic was in attendance. She noted defence counsel’s “request for further disclosure” and indicated that she expected a Crown pre-trial to be held within the next two weeks so that “we’ll be prepared to set a date on [February] 9 th ” – the next scheduled court appearance. [ 11 ] Morris’ counsel and Ms.

Josic had a telephone conversation about the case the following day, January 28 th . By faxed letter dated February 8, 2010, and in response to his letters of December 1 and 15, 2009, Ms. Josic advised Morris’ counsel that she was forwarding him a typed copy of the officer’s illegible notes and that the reference to an “anonymous tip” in the initial disclosure materials was “ not an anonymous tip” in the sense of it being a “Crimestoppers Tip” but, rather, “simply a 911 call from an anonymous caller”.

Further, as she now understood that counsel’s December requests for “copies of all documents faxed to the issuing justice in support of the search warrant application” amounted to a request for a copy of the ITO, she advised that she had prepared an ex parte application to unseal the ITO the next day, February 9 th . Ms. Josic anticipated that it would take “approximately 4 weeks” to “unseal, receive, vet and disclose the ITO”.

Accordingly, she asked in her letter that the matter be adjourned to any day during the week of March 8 th . [ 12 ] Fennell, for the first time, had counsel on the return date of February 9 th . Morris’ counsel noted that there had been “something of a pre-trial” with Ms. Josic in the interim, but that no further disclosure had yet been provided. The attending Crown counsel requested that the matter be adjourned to the week of March 8 th to permit Ms.

Josic to address the matter, noting that, “the Crown has brought an ex parte order [that is, an application] to unseal the search warrant [meaning the ITO]” that day. (As is common and appropriate practice, and as obtained in this case, ITOs which rely on information provided by confidential informants are accompanied by an affidavit-supported application to seal the ITO, which applications are routinely and rightly granted.

Once ordered sealed by the issuing justice, they remain so unless and until a court orders that they be unsealed and provided to the Crown for purposes of vetting and subsequent disclosure to the defence.) Accordingly, the matter was further remanded to March 8, 2010. [ 13 ] Crown pre-trials with both defendants’ counsel were held before March 8 th, and before disclosure of the ITO. In a brief appearance that day, the matter was adjourned to April 13 th . Despite the ITO not yet having been disclosed, the defence also agreed to a

schedule a judicial pre-trial for the time-slot immediately preceding the April 13th court appearance. (As is the settled practice at Old City Hall Court, cases, such as this one, which are expected to last longer than one day, must be judicially pre-tried before the trial date is set.) As a copy of the ITO had still not been provided by March 23, 2010, the defence again requested its disclosure by faxed letter. [ 14 ] Ms. Josic did not provide defence counsel with copies of the ITO (which she had earlier vetted and redacted) until they were

about to step into the April 13 th pre-trial meeting. This was some four and a half months after the defence had first requested a copy of the ITO and more than two months after the application to unseal the ITO was brought and granted. [ 15 ] Once in assignment court following the pre-trial meeting, the attending Crown counsel (who was not at the judicial pre-trial) stated that the Crown was set to fix a date for trial and that the justice presiding at the pre-trial was prepared to target trial or preliminary inquiry dates and estimate the time required.

This assertion was disputed by Morris’ counsel who noted that, “we’re not in a position to even know what kind of case this is, how long it’s going to take, how we’re going to proceed, until we review this disclosure [that is, the redacted ITO] – the most important piece of disclosure that we received”. As defence counsel had not had an opportunity to review the newly disclosed material, and as Crown counsel and the pre-trial judge were to be away over the next few weeks, the matter was further adjourned to May 10 th . (On the hearing of this application, Ms.

Josic fairly acknowledged that the 27 days between April 13 th and May 10 th were properly attributable to the Crown in the s. 11(

b) calculation by virtue of the defence not receiving a copy of the redacted ITO until minutes before the April 13 th judicial pre-trial.) On April 16 th , Morris’ counsel faxed a letter to Ms. Josic requesting further disclosure respecting the just-disclosed ITO. [ 16 ] A second judicial pre-trial was held on May 10, 2010, following which three dates were fixed in assignment court. The latter two – March 7 and 8, 2011 – were set for trial ; they were the first available dates afforded by the trial coordinator.

In addition, a two- hour disclosure motion, arising from the defence efforts to secure additional information related to the ITO, was set down for January 18, 2011. An interim confirmation date of May 27 th was fixed for purposes of formal defence elections. On that latter date, both defendants formally elected trial in provincial court and the trial dates were confirmed. [ 17 ] Both defendants were formally arraigned before me on January 18, 2011.

The disclosure motion began and was then adjourned for continuance on the first scheduled trial date, March 7, 2011, but not before the defence indicated its intention to also bring a s. 11(

b) application on the return date. [ 18 ] Further disclosure relating to the ITO having been provided in the interim, the defence abandoned its disclosure motion on March 7th. It proceeded, instead, with an application to stay the proceedings as a result of unreasonable delay. The defendants had also filed an application to exclude the seized evidence of weapons, drugs and proceeds on the grounds that the search violated their right to be secure against unreasonable search and seizure and that the admission of such evidence would bring the administration of justice into disrepute.

This second application was heard the next day, March 8 th , followed by my provisional ruling on the s. 8 issue. The trial was then adjourned to March 24 th , today’s date, for my ruling respecting the s. 11(

b) application. C. EVIDENCE AS TO PREJUDICE (

a) Introduction [ 19 ] As noted, both defendants filed affidavits that speak to the prejudice they claim to have suffered as a consequence of the pre- trial delay that attends their case. Crown counsel elected not to cross-examine the defendants on their affidavits. As she said in the course of oral argument, the Crown “accept[s] their assertions at face value”. (

b) Samuel Morris [ 20 ] The defendant Morris is 25 years of age. He has no criminal convictions. He has been living with his father and younger siblings since his release on bail, as required by the terms of his recognizance. Other bail conditions included a 10pm to 6am curfew seven days a week and certain common mobility and drug and weapons related restrictions.

The Crown consented to deletion of the curfew clause on June 17, 2010, some ten months after it was first imposed. [ 21 ] Morris had planned to move to Newfoundland prior to his arrest to be closer to his family there and because of what he viewed as greater job opportunities. His charges and their delay compelled him to repeatedly postpone these plans. He had not been able to find employment since his arrest due, he says, to prospective employers’ inquiries as to his criminal antecedents and the existence of any outstanding charges.

The protraction of the prosecution had been very costly as he has had to pay his lawyer for each of the many appearances that preceded the commencement of his trial. Further, the defendant himself had attended court approximately fifteen times since his arrest. He had found the prosecution and its duration “very stressful”. (

c) Mallory Fennell [ 22 ] Fennell is 22 years of age. She had never been charged with an offence before August 5, 2009. Fennell has a diploma in business management/financial services from Humber College and was employed in this field when arrested. She was able to maintain her job but was frustrated in advancing her career as a result of the length of the prosecution.

She abandoned one job application (which she identified) when she learned of a requisite background check, and she felt inhibited from applying for others in the financial sector for fear of stigmatization if her pending charges were exposed. [ 23 ] Fennell’s recognizance initially required her to live with one of her sureties in a home with five other residents and a single washroom. Her bail was later varied to permit her to live with her mother, with whom she had not resided for six years.

Fennell sleeps on a couch and some historical friction between her and her mother has been exacerbated by the crowded living space they share. The protraction of the charges has also led to tension between her and other members of her family (including her uncle, a retired police officer) and she has felt increasingly stressful and anxious as the delay lengthened. [ 24 ] Fennell first applied to Legal Aid within days of her release on bail. Her application was refused on September 2, 2009. Her

appeal from this decision was declined on November 19, 2009. A further appeal was allowed in January 2010 and a certificate wasfinally issued upon her signing a contribution agreement on February 25, 2010. D. THE ANALYTICAL FRAMEWORK [25]

Section 11(

b) of the Charter guarantees every person charged with an offence the right to be tried within a reasonable time. The primary interests protected by this provision are those of the defendant: security of the person, liberty and fair trial rights. Societalinterests (including ensuring that those charged with criminal transgressions are not only brought to trial but quickly and fairly) are alsoof concern: R. v. Askov (1990), (SCC), 59 C.C.C. (3d) 449, at 474 (S.C.C.); R. v. Qureshi (2005), 128 C.C.C. (3d) 453,at 458 (Ont. C.A.) and R. v.

Godin (2009), 2009 SCC 26 , 245 C.C.C. (3d) 271, at para. 40. [26] The four factors that inform the calculus of an unreasonable delay analysis have been settled since R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1: 1. length of the delay; 2. waiver of time periods; 3. the reasons for the 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 the defendant. As said by McLachlin J. (as she then was) in her concurring opinion in Morin, supra, at p. 30, “What is important is how those factorsinteract and what weight is to be accorded to each”. [27] A proper analysis requires a judicial “balancing” of the length of the delay as assessed in light of the these factors and theinterests protected by s. 11(b). In R. v.

Godin, supra, at para. 18, the Supreme Court summarized the exercise in the following manner: 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. Unsurprisingly, adjudication of s. 11(

b) claims often turns, as here, on the legal characterization and assignment of particular periods ofdelay. [28] Like other assertions of a Charter breach, the defendant bears the burden of establishing a violation of his or her s. 11(

b) rights. There is no mathematical formula by which to measure the reasonableness of pre-trial delay. However, some assistance may be foundin the administrative guidelines set out by the Supreme Court in Morin. The standard for permissible institutional or systemic delay in thecase, as here, of a provincial court trial is eight to ten months. (See R. v.

G.(C.R.), (2005), (ON CA), 77 O.R.(3d)308 (C.A.), at 315.) This guideline is not to be confused with a fixed limitation period; it may contract or expand depending on a varietyof factors, although the normative inclination in the nearly two decades since Morin is in the direction of reduced countenance ofinstitutional delay. As said by Molly J. in the 2007 case of R. v. Stephens, [2007] O.J. No. 3500, at para. 67: … it has now been 14 years since the Supreme Court of Canada’s decision in Morin provided concrete guidance as to the meaning of theCharter right to trial within a reasonable time.

The judicial system has had ample time to adjust to these constitutional requirements. Accordingly, in determining when delay can be said to be “unreasonable”, courts are increasingly looking to the bottom of the Moringuidelines, rather than to the extreme upper limits: R. v. Sharma (1992), 71 C.C.C. (3d) 186 (S.C.C.) at 194; R. v. Meisner, [2003] O.J.No. 1948 (S.C.J.); R. v. Osei, [2007] O.J. No. 768 (S.C.J.) at paras 39-40. [29] By way of further introduction to the governing legal principles, I note that the Court of Appeal in R. v.

Thomson, 2009 ONCA771, at paras. 9 and 10, re-affirmed that a stay of proceedings is the only appropriate remedy once the s. 11(

b) threshold of “unreasonabledelay” is crossed. Unlike other claims for such remedy, the standard of “clearest of cases” has no application, nor need prejudice to adefendant’s right to a fair trial or right to make full answer and defence invariably be established to attract constitutional relief. E. APPLYING THE ANALYTICAL FRAMEWORK (

a) Length of the Delay [30] The defendants were arrested and charged on August 5, 2009. The “length of the delay” – that is, the total period to which theyhave been subject to criminal jeopardy – now amounts to approximately 19½ months, or about twice as long as the ceiling posed by theMorin guidelines for provincial court trials. Further, the defendants’ trial, if it proceeds, is not close to completion. Should thisapplication be dismissed, Crown counsel will undoubtedly seek to amplify the record respecting the ITO in an effort to redeem theconstitutional grace of the search and seizures that, to this point, I have found provisionally unreasonable. A further hearing premised on

what is sometimes called “step 6” in a “Garofoli application” will then ensue. If the defence Charter ss. 8 and 24(2) applications proveultimately unsuccessful, the trial proper will then, finally, commence at some date that, to this point, has not even been scheduled. Givenmy familiarity with this court, and assuming prioritization of the matter in view of the accumulative delay to date, a trial on the meritswill not then occur until close to, if not in excess of, two years after the defendants were first charged.

In some inquiries this may be ofsignificance as courts are required under s. 11(b) “to examine the period from the charge to the end of the trial”: Morin, supra, at p. 14. However, in view of my reasoning respecting the actions of the accused (which I soon address), I believe projections as to this trial’sultimate length to be of little more than a background consideration in assessing the defendants’ Charter claim. Accordingly, theappropriate quantification of the total length of the delay on this s. 11(

b) investigation is the approximately 19 months that havetranspired since the defendants’ arrest and their March 7, 2011 trial date. (

b) Waiver of Time Periods [31] There has, here, been no “waiver” of the defendants’ “right to be tried within a reasonable time”. Accordingly, no time periodsare subtracted from the length of the total delay on account of waiver for purposes of s. 11(

b) calculation. (

c) Reasons for the Delay [32] Inquiry into “the reasons for the delay” involves consideration of a number of sometime interlocking factors. This often-complex inquiry focuses on the characterization of each sub-period so as to determine the cause or responsibility, if any, for that delay. As recently explained by Code J. in R. v. Richards, 2010 ONSC 6202, at para. 15: Having determined the cause of the individual period of delay, this factor [“reasons for the delay”] then assigns a weight to it.

There are some delays that are said to “weigh against the Crown”, some delays are said to “weigh against the defence” and some delaysare said to be “neutral”. The simple point that this factor seeks to make is that delays caused by the accused’s own actions “will justify”an otherwise unreasonable delay, delays caused by the Crown or by inadequate resources “cannot be relied upon …to explain away delaythat is otherwise unreasonable”, and delay due to the inherent requirements of the case “is neutral and does not count against the Crownor the accused”.

See: Askov, supra at pp. 477-481 and 483; Morin, supra at pp. 16-23; R. v. MacDougall (1998), (SCC), 128 C.C.C. (3d) 483 at p. 500 (S.C.C.). (

i) Inherent Time Requirements of the Case [33] As said famously in Morin, at p. 16, “Just as the firetruck must get to the fire, so must a case be prepared”. The delaynecessarily consumed by the initial inherent time requirements of any case occupy what is generally referred to as the “intake period” –that stage of the proceeding that must be completed before a case can be set down for trial. These requirements, as further said in Morin,supra, “consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc.”.

R. v.MacDougall, supra, at para. 44, makes clear that, “The period of time attributable to inherent time requirements is neutral and does notcount against the Crown or the accused in the s. 11(

b) reasonableness assessment”. [34] Here, both defendants had been released on bail within nine days of their arrest on August 5, 2009. By the time of their first post-release appearance, on September 24th, Morris had retained counsel. Fennell, despite her prompt and persistent efforts to do so, wasunable to secure legal aid assistance for another four and half months. This, I find, was still long before the Crown had made sufficientdisclosure for the defence to assess the prosecution’s case, make its elections and fix a trial date. [35] Intake delay often turns on the complexity of the case.

No realistic trial date can be fixed until substantial disclosure isprovided the defence and the defence, in turn, has had an opportunity to digest these materials and make informed decisions premised onits contents. But for the complication injected by the Crown’s reliance on two confidential informants in the preparation of the ITO (amatter to which I shall return), nothing about this case is particularly complex. There is no electronic surveillance that requiredtranscription. There was no apparent surveillance of the defendant.

No witness statements needed to be collected, forensic evidenceanalyzed or expert evidence recruited. And apart from the chemical identification of the seized drugs (a matter that, as here, is generallynot completed or provided to the defence until sometime close to the scheduled trial date), there was no further police investigationreferable to this prosecution after the defendants’ arrests.

In short, but for “intake” matters, the Crown case was complete as of August5, 2008. [36] Other than the conspicuous need to protect the identity of the two police informants, the only obstacle to the provision ofimmediate disclosure to the defence was some administrative paperwork and a functioning copying machine. Crown counsel was, ofcourse, required to assiduously vet the police notes and any related portions of the Crown brief to fully respect the claim of policeinformant privilege.

But for this duty, there seems no good reason why disclosure ought not to have been delivered to the defendants ontheir first appearance after they were released on bail – some seven weeks after they were first arrested. Given what I am told werenecessary Crown meetings with the informants’ police “handlers” (the affiant and a sub-affiant) to ensure that nothing was disclosed thatmight compromise the identity of the confidential informants, I am prepared to extend a further three weeks of s. 11(

b) neutrality tofulfillment of the Crown’s necessary disclosure obligations in this case – that is, until approximately October 15, 2008. Again, thiscalculus reserves until further consideration those further delays attending the subsequent disclosure of the redacted ITO and the inherenttime requirements attaching to this task. (ii) Actions of the Defendants [37] In Morin, supra, at p. 17, Sopinka J. develops the meaning of this factor as follows:

Included under this heading are all actions taken by the accused which may have caused delay. In this

section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. Here, the defence brought no adjournment applications. Morris, as earlier noted, had retained counsel by his first return date and Fennell had already applied for legal aid. The defendants elected single-stage proceedings in provincial court so as to expedite their trial.

They also sought and pursued more complete disclosure as soon as they became aware of the inadequacies of that with which they had been provided. The defendants’ sole demurral was on December 1, 2008 when, upon being handed the initial disclosure brief and invited to arrange a Crown pre-trial meeting, Morris’ counsel advised that the defence would “have to wait until Ms. Fennell gets counsel”.

This request had no impact on the pace of the trial as the disclosure of the redacted ITO – which, I find, was critical to the defendants’ capacity to assess it the strength of the Crown’s case and make strategic decisions and an informed election – did not occur until a month after Fennell had retained counsel. [ 38 ] The defendants did bring three motions. The first in time was for additional disclosure; it was heard on January 18, 2011, almost two months before the scheduled trial dates, and thus did not effect the duration of these proceedings. The second and third motions – the s. 11(

b) application and the challenge to the search warrant – occupied the first two dates set for trial. As this latter motion will necessarily protract the length of the defendants’ trial (if it proceeds), I limit the reviewable “length of delay” to that just- over 19-month period between the arrest date of August 5, 2008 and the first scheduled trial date of March 7, 2011 – the date by which the defendants claim unreasonable delay has already occurred. (iii) Actions of the Crown [ 39 ] Again quoting from Morin , at p. 18: As with the conduct of the accused, this factor does not serve to assign blame.

This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc. The only actions of the Crown that here attract s. 11(

b) scrutiny are those related to the execution of its disclosure obligations. As I have already concluded, some six weeks of delay are properly charged to the Crown by virtue of the delay in affording the initial disclosure package to the defence (that is, the interval between October 15 and December 1, 2008).

Crown counsel has acknowledged that a further four weeks of delay are also properly attributable to Crown conduct: that is, the four weeks that followed the adjournment of the first judicial pre-trial necessitated by the Crown not providing the defendants with a copy of the redacted ITO until minutes before that meeting. [ 40 ] The four weeks conceded by the Crown are part of the approximately five and a half months of delay extending between the provision of the initial disclosure on December 1, 2008 and the date of May 10, 2010 when the second JPT took place and the trial date was finally scheduled.

The defence attributes most of this delay to Crown conduct. But for the four weeks following the first judicial pre-trial, the Crown assigns this delay to the inherent time requirements of the case and Fennell’s difficulties in retaining counsel. As I have already explained, Fennell’s persistent efforts to secure legal aid ultimately had no effect on the pace of this litigation and, accordingly, I do not hold the defence responsible for the delay between receiving initial disclosure and fixing the trial date.

The question, then, is whether this same period is properly characterized as Crown delay or that attributable to the inherent time requirements of the case or, finally, some combination of the two. This nearly half-year gap is largely referable to disclosure of the ITO. There is a growing and divided body of caselaw that addresses how best to characterize the time involved in such exercises for s. 11(

b) purposes. Rather than attempt to resolve this problem under the rubric of “actions of the Crown”, I intend to independently consider the matter as an element of “other reasons for the delay”. (iv) Limits on Institutional Resources [ 41 ] Morin , infra , explains that this factor encompasses “the period that starts to run when the parties are ready for trial but the system cannot accommodate them”.

Here, the earliest trial date provided by the trial co-ordinators on May 10, 2010, when all parties were able to set a trial date, was March 7, 2011, some ten months distant. (The record is silent as to whether the Crown and the defendants were prepared to fix an earlier date.

Given the length of this delay and the general defence interest in expedition, as otherwise evidenced, I am prepared to presume that all parties had earlier trial availability but that “the system [could not] accommodate them”.) Ten months is, of course, at the upper limit of the delay guidelines for relatively simple trials conducted in a provincial court. As a result, the characterization of the remaining nine months of delay and the prejudice caused the defendants as a result of such delay are critical components in the balancing that ultimately determines the fate of this application. (

v) Other Reasons for the Delay [ 42 ] A central controversy in this case relates to the delays involved in obtaining the ITO and then, once secured by the Crown, in vetting it for purposes of disclosure to the defence. I recently had occasion to address a similar matter in R. v. Li, 2010 ONCJ 502 . My words, appended as an explicit “postscript”, were clearly obiter as I resolved that case on an entirely different footing. Much more importantly, I did not then appreciate that the issue was the subject of widely divergent judicial opinions. I commented as follows, at paras. 59-61:. … there is one matter pertaining to the s. 11(

b) application that demands comment. Without meaning to suggest this factor would be necessarily determinative, I cannot help but note that literally months of delay are here attributable to unsealing the ITO and disclosing it to the defence. … [One] reason for unsealing-related delay rests with the Crown’s settled practice, as explained to me, of not applying to unseal and release an ITO for purposes of vetting and ultimate disclosure to the defence until some time after the defence itself has sought release of the ITO.

It would be a waste of limited Crown resources, I am told, to apply to unseal every sealed ITO absent a defence request for such access. While this may well be the case with respect to the execution of warrants where no charges

result, I frankly find it difficult to imagine that any competent counsel would not seek disclosure of the ITO in each and every case where his or her client is charged as a result of the execution of a search warrant.

Put otherwise, a defence request for access to the ITO underlying a productive warrant can be reasonably anticipated and, as a result, I do not understand why the Crown would risk delay by not applying to have such warrants unsealed in advance of any defence request, particularly given the mechanical nature of such applications. [Further], more than two months passed in this case between the time the unsealing order was made and the time the ITO was finally provided to the defence.

This was two months in a case in which, pure boiler-plate aside, the ITO consisted of only ten paragraphs and, further, a case in which absolutely no redactions of the ITO were required or made. This is close to unconscionable. Further, this delay – like each of those associated with disclosure of the ITO to the defence – is, at least in this case, neither neutral nor attributable to institutional factors. These interim delays fall squarely at the feet of the Crown.

Clearly the circumstances in Li were very different than those immediately before me: here, unlike Li , the police relied on confidential informants and the Crown had a professional and ethical obligation to protect these sources in the course of vetting a much lengthier ITO. Of at least equal importance, my language in Li may have been somewhat more temperate if I had then been aware of the rich judicial debate (at least in Ontario) surrounding this issue. [ 43 ] The previous decisions that I have consulted include, in chronological order, the following: • R. v. Osei , [2007] O.J. No. 768 (S.C.J.) • R. v.

Tang , [2007] O.J. No. 4606 (C.J.) • R. v. Maxwell , unrepd., Aug. 27, 2007 (Ont. C.J.) • R. v. Beck , [2008]O.J. No. 3513 (C.J.) • R. v. Zuk , [2008] O.J. No. 4265 (S.C.J.) • R. v. Do , [2009] O.J. No. 3649 (C.J.) • R. v. Melendez , [2010] O.J. No. 5141 (C.J.) All are trial rulings and, as a result, are not directly binding on me. The polar positions in the debate, if I may put it that way, are those set out by Justice Nordheimer in Osei and Justice Caldwell in Tang . Melendez effectively adopts the reasoning in Tang .

The other decisions reflect carefully considered amalgams of or efforts to reconcile the analyses advanced in Osei and Tang . [ 44 ] A substantial portion of the argument has now been overtaken by protocol and practice. As originally framed, the threshold question was whether the defence or the Crown bore the responsibility of applying to have a sealed ITO ordered unsealed and, if the Crown, when did this obligation first arise?

The settled practice in this courthouse, and one extant well before the ITO was ordered sealed in the instant case, is that the Crown brings the “unsealing” application before a judge who routinely endorses the order drafted for his or her convenience. Counsel for the defendant almost never appears on the pro forma application and the hearing, if such it is, rarely extends beyond a couple of minutes. Armed with this order, the Crown then obtains a copy of the original ITO from the court custodian and, in the fullness of time, vets and, if necessary, redacts the document.

The redacted version is then disclosed to the defence. [ 45 ] Adoption of this practice still leaves legally unanswered the second part of the question: that is, when – at least from the perspective of s. 11(

b) consideration – ought the Crown to bring the unsealing application? The answer commands appreciation of both the Crown’s Charter s. 7 obligation to make full disclosure and the cost it bears in the s. 11(

b) calculus for any delay in this regard. In cases such as the one before me (and in most of those that I have cited), the ITO is potentially critical to the defendant’s right to make full answer and defence and, further, the Crown would readily recognize this potentiality without having to personally examine the ITO. [ 46 ] So framed, the position taken in Osei (which, I feel obliged to note, presages my reflections in Li ) is that the unsealing application should be brought as soon as the warrant at issue has been executed and the accused arrested.

As set out at paras. 23 and 23 of that ruling: The Crown's disclosure obligations are well established. The Crown must have known that the material used to obtain the search warrants would be relevant information to be disclosed to the defence as part of this prosecution. After all, the search was central to the finding of the weapon and the drugs. The Crown had to know that no defence counsel was going to proceed … without having seen the material upon which the search warrants were granted.

Once the warrants were executed, and persons arrested, the Crown should have immediately proceeded to get the court file unsealed and the material edited, copied and disclosed to the defence. [ 47 ] The alternative position (at least since the adoption in this courthouse of the unsealing practice I have earlier described) is that developed by Justice Bovard in the Beck case. His view, as stated at para. 47, is that “the Crown is entitled to wait for the defence to request disclosure of the search warrant package before its disclosure obligations to divulge the vetted contents of the package take effect”.

As should be clear, the unsealing practice now followed by the federal Crown at Old City Hall Court is consistent with that determined appropriate in Beck . [ 48 ] I do not believe I need resolve this dispute to determine the application before me. Assuming, and only that, that the Crown is not charged under s. 11(

b) for waiting until the defence requests a copy of the sealed ITO before applying for it to be unsealed, the evidence before me still speaks to a regrettable dilatoriness. The defence, it may be recalled, sought a copy of the ITO on the very day – December 1, 2009 – that it first became aware, through the initial disclosure, that it had not been provided with this crucial document.

The Crown answered neither this letter nor a further and identical request sent some two weeks later. Indeed, there was no Crownacknowledgement of the defence request for further disclosure until the court appearance of January 27, 2010 – some two months afterthe defence entreaty was first advanced. Finally, on February 8, 2010, and following a conversation with Morris’ counsel, Ms. Josicfaxed him to advise that, she had now prepared an unsealing application to be brought the next day.

This, she explained, was a result ofher now understanding that the repeated December defence requests for “copies of all documents faxed to the issuing justice in supportof the search warrant application” amounted to a request for a copy of the ITO. [49] It is, frankly, difficult to conceive of any ambiguity or confusion surrounding the words “all documents faxed to the issuingjustice in support of the search warrant application”. Given the context of this case, the trial issues that would be patent to anyexperienced Crown, Ms.

Josic’s previous vetting of the officers’ notes to protect any identification of the confidential informants, and herown historical involvement in at least one very similar case (having served, with palpable distinction, as Crown counsel on Beck), it isalmost unfathomable that she would not have immediately understood the nature of the defence request. And had she, the simplesolution – and the road here not taken – was to simply contact Morris’ counsel and seek clarification. [50] The unsealing application was brought and granted on February 9, 2010.

In her letter faxed the previous day she estimated thatit would take some four weeks to “unseal, receive, vet and disclose the ITO”. In fact, it took some nine weeks – until April 13, 2010 –before the redacted ITO was disclosed to the defence. This delay, as conceded by the Crown, compelled further delay and a second, ifmuch more fruitful, judicial pre-trial on May 10, 2010. The trial dates of March 7 and 8, 2011 – the earliest offered by the court – werefixed immediately thereafter. [51] Crown counsel attributes the delay in disclosing the ITO to the care required in protecting informant confidentiality.

There canbe no doubt that this duty must be performed with scrupulous conscientiousness. That said, Crown counsel had already vetted theofficers’ notes and, as she explained to me, this required meetings with both the affiant and a sub-affiant to ensure the police-informantprivilege was fully honoured. Having once completed this task, the vetting and redaction of the ITO should have taken much less time. Put otherwise, if the Crown was required to re-plow the same field a shorter – or, perhaps more appropriately, briefer – hoe ought to havesufficed.

If there was some latent or subtle reason for this inordinate delay, it was not pressed on me – unlike the factual scenarios inseveral of the authorities I have reviewed where affidavit evidence was tendered by the Crown to rationalize facially inexplicableprotractions of the unsealing and vetting process. [52] In the end, and in the circumstances of this case, I find that six weeks was a reasonable interval for unsealing, vetting andredacting the ITO, providing copies to counsel and conducting a judicial pre-trial.

Had this course been followed, the trial date wouldhave been fixed by mid-January of 2010 rather than some four months later. Those four months are properly assigned to the Crown. (vi) Calculating the

Section 11(

b) Delay [53] This case has taken just over nineteen months to traverse its way from charge to first trial date. The defence, I find, is noteffectively responsible for any of the delay in the progress or pace of these proceedings, either through waiver or conduct. Theinstitutional delay amounts to some ten months, from May 10, 2010 until the first available trial date of March 7, 2011. Inherent delay,both that related to the requirement of “intake” and those attending, ultimately, disclosure of the redacted ITO (including the judicial pre-trial that necessarily followed) comes to a little under four months.

What remains, I find, is attributable to the Crown: the six weeks ofdelay in completing the Crown’s initial disclosure obligations and a further four of the five and half months that expired between the firstdefence request for the ITO (on December 1, 2009) and the judicial pre-trial that followed it ultimate disclosure on April 13, 2010. [54] Accordingly, the total cognizable delay for purposes of s. 11(

b) assessment – that composed of institutional delay (10 months)and that credited to Crown conduct (5½ months) – amounts to 15½ months. The delay assigned to the Crown attracts specialconsternation. As said by Molloy J. in R. v. Stephens, supra, at para. 68, … the amount of the total delay that is attributable to the Crown is an influential factor here. … I agree with the comments ofmy brother judges Dambrot J. and Dawson J. that delay caused by the Crown is a matter of particular concern in balancing interestsunder s. 11(b): R. v. Chrostowski, (ON SC), [2006] O.J. No. 1306 (S.C.J.) per Dambrot J. at para. 61; R. v. Yun,[2005] O.J. No. 1384 (S.C.J.) per Dawson J. at para 42. (

d) Prejudice [55] Both defendants suffered some actual prejudice as a result of the lengthy protraction of these proceedings. Although the Crownconsented to a bail variation eliminating this term, the defendant Morris’s bail compelled him to live under “house arrest” conditionsfrom 10pm until 6am everyday for the first ten months following his arrest. As said in Morin, an “accused may rely on evidence tendingto show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions” (emphasis added). (See,also, R. v.

G.(C.R.), supra, at para. 27.) Morris’ plans to relocate to his home in Newfoundland was also placed on an indefinite hold,first as a result of the charges and then, over time, as a consequence of their prolongation.

Further, Morris assumed substantial financialobligations as a result of his need to retain counsel for repeated court dates as Crown representations as to pending disclosure wererepeatedly extended. [56] The defendant Fennell’s professional ambitions were frustrated by risk of exposure when she applied for advancement, a costshe has had to bear well beyond the initial anticipated date for resolution of the charges. Further, the extension of the case adverselyimpacted her interpersonal and reputational interests with her immediate and wider family.

Both defendants have had to make multiplecourt appearances as the case has worn on, totaling some 15 occasions for Morris. [57] Prejudice to security interests, as reflected in enhanced stress and anxiety as the conclusion of the trial grows ever more distant,is addressed in the defendants’ affidavits. It may also be readily inferred given the length of these proceedings. While the prejudice thatis germane to s. 11(

b) analysis is that attributable to the delay rather than the charge itself, the emotional and social costs of a criminalaccusation become exacerbated when, as here, the matter transcends the guidelines for condonable delay. In R. v. Kahlon, [2010] O.J.

No. 1883 (C.J.), at para. 35, Marin J. recently commented: The type of prejudice that is of concern is prejudice that arises from the delay in processing or disposing of charge against the accusedand not the impairment or prejudice arising from the mere fact of the charge. The prejudice arising from a criminal charge is sufferedeven where the accused is tried within a reasonable time and is inherent to the system. However, as noted by … MacDonnell J. in R. v.Brown, [2005] O.J. No. 2395, “the fact that a negative consequence arises from being charged rather than from delay does notnecessarily make it irrelevant for s. 11(

b) purposes. The stress and anxiety that flow from stigmatization, for example, can create anongoing burden, and the longer that the burden must be borne, the greater the toll on an accused’s security of the person: see R. v.Kporwodu and Veno (April 15, 2005) (Ont. C.A.), at paragraphs 162, and 177-178.” See also R. v. Godin, supra, at paras. 31 and 34, R. v. Askov, supra, at 474 and 482-484, R. v. Smith (1989), (SCC), 52C.C.C. (3d) 97 (S.C.C.), at 111, and R. v. Egorov, [2005] O.J. No. 6171 (C.J.), at para. 7. F. BALANCING [58] The matter before me took some 19 months to reach its trial date.

The defence appeared sincerely eager to advance the caseand endured some prejudice, both tangible and, increasingly, inferred as the case dragged on. More than 15 of these 19 months of delayare attributable to institutional and Crown-related considerations. Such delay well exceeds the upper end of the guidelines for single-stage trials. I am, of course, well aware of the gravity of the offences that are here alleged and appreciate, of course, that there is a strongpublic interest in trying such serious charges on their merits. I factor that into the ultimate balancing.

Nonetheless, given the length ofthe delay, the interests protected by s. 11(

b) and the nature of the contributing factors I have identified, I find that the defendant’s right tobe tried within a reasonable time has been violated. [59] This case bears several similarities to that of R. v. Osei, supra. The defendant in Osei also faced weapons offences (and moreserious ones as they involved a sawed-off shotgun) as well drug offences (marijuana in that case, rather than the more potentiallyhazardous drugs that ground several of the charges before me).

He elected trial in Superior Court and the delay beyond the guidelinecap for two-phase trials was judicially calculated to be between five and nine months. Justice Nordheimer ultimately stayed the charges. His near-closing remarks (at paras. 39-40), which closely mirror my own thoughts, follow: … the Crown says that the amount of delay that is outside of the guidelines, on my calculation five to nine months, is notexcessive. That is true in the sense that we are not here dealing with a matter of years of delay. To some degree, however, thatsubmission misses the fundamental point.

The guidelines were established to give some fairly clear direction to government as to whatconstitutes the outer limits of tolerable delay in the justice system. Governments have now had many years to adjust their priorities inorder to ensure that the justice system receives sufficient resources to match their results against these guidelines. Indeed, I would notethat the Supreme Court of Canada observed that, as time passed, it expected that cases would have to conform to the lower end of theguidelines. See R. v. Sharma, (1992), (SCC), 71 C.C.C. (3d) 184 (S.C.C.), at page 194.

Whether that is a fair expectation or not, in responding to the basic submission that the Crown has not missed themark by much, I will repeat the essence of what I said in an earlier case. If the guidelines set out by the Supreme Court of Canada are tohave any meaning and impact, cases cannot be routinely excused from compliance on the basis that the Crown got pretty close tocomplying. To conclude otherwise is to then excuse the Crown from compliance with these constitutionally mandated requirementsexcept when its failure results in especially egregious delay.

That result would, in turn, mean that the Crown would not have to concernitself with its obligation to ensure that all cases conform to the guidelines but would only have to concern itself with an abject failure tocomply. That cannot be an acceptable result when we speak of fundamental rights such as those enshrined in

Section 11(

b) of theCharter. [60] Given my conclusions as to a denial of the defendant’s s. 11(

b) rights, the only just and appropriate remedy in suchcircumstance, as dictated by s. 24(1) of the Charter and the related jurisprudence, is a judicial stay of the proceedings. That result willhere follow. G. CONCLUSION [61] I have found that both defendants’ constitutionally protected right to be tried within a reasonable time has been violated. Accordingly, I order the charges against them stayed. Released on March 24, 2011 __________________________ Justice Melvyn Green