COURT FILE No.: Scarborough 326288 DATE: 2011·09·02 Citation: R. v. Medakovic , 2011 ONCJ 467 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — VLADON ANTHONY MEDAKOVIC Before Justice S.E. Marin Heard on August 23, 2011 Reasons for Judgment released on September 2, 2011. Paul J. Kelly .............................................................................................................. for the Crown Jacob R. Stilman ......................................................................... for the accused Vladon Medakovic MARIN J.: [ 1 ] Mr.

Medakovic is charged with drinking and driving offences. In advance of his trial, he brought an application seeking a stay of his charges on the grounds that his right to a trial within a reasonable time under s. 11(

b) of the Charter had been breached. The alleged breach concerns the 13 ½ months between Mr. Medakovic’s arrest and his trial date. History of the Proceedings [ 2 ] On the evening of September 12, 2010, police responded to a citizen’s complaint by stopping Mr. Medokovic as he was driving his motor vehicle northbound on the Don Valley Parkway. The officer made certain observations about Mr. Medakovic’s sobriety and arrested him on the charge of impaired driving. Mr.

Medakovic was transported to the police station where he complied with a demand for samples of his breath and two readings in excess of twice the legal limit were obtained. His driving privileges were suspended for the automatic ninety day period and he was released from the station on a Promise to Appear. [ 3 ] Mr. Medakovic consulted counsel on September 23, 2010, in advance of his first appearance. [ 4 ] The information charging Mr. Medakovic with the offences of impaired driving and over 80 was sworn on October 19, 2010. [ 5 ] The first appearance date was October 26, 2010. Mr.

Medakovic appeared in person and he received written disclosure in relation to his charges. The DVD disclosure was not yet available. Mr. Medakovic asked for the matter to be adjourned for two weeks so that he could retain counsel. [ 6 ] The second appearance was on November 9, 2010. Mr. Medakovic had retained Mr. Stilman as his counsel. Further disclosure consisting of DVD videos was provided to counsel and a designation was filed.

The matter was adjourned for a further two weeks at the request of the defence, to review the file and arrange for a Crown pre-trial. [ 7 ] Counsel’s review of the DVD disclosure indicated that it was incomplete. The DVD of the booking procedures was not provided until the third appearance on November 23, 2010.

Defence counsel met with the Crown to discuss resolution and the matter was adjourned to December 2, 2010 to enable counsel to review the new disclosure. [ 8 ] On December 2, 2010, after disclosure of the 911 call and an in-court judicial pre-trial to confirm the parties’ estimate of trial time, a trial was scheduled for three-quarters of a day. The first available trial date was October 31, 2011, 10 months and 29 days later. Mr. Stilman indicated that he had many earlier trial dates and there was no waiver of delay. The Applicable Legal Principles [ 9 ]

Section 11(

b) of the Charter aims to protect both the individual rights of the defendant and the rights of society. It

protects three individual rights: (1) the right to security of the person by minimizing the anxiety and stigma of criminal proceedings; (2)the right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and (3) the right to a fair trial by ensuringthat the proceedings occur while evidence is fresh and available. In addition, the

section aims to promote confidence in theadministration of justice by protecting two secondary societal interests: (1) the public interest in effective law enforcement by bringingpersons accused of offences to trial quickly; and (2) the public interest in having those accused of crime dealt with fairly.[1] [10] In R. v. Morin, (SCC), [1992] 1 S.C.R. 771 at 788, 71 C.C.C. (3d) 1, Sopinka J. held that thedetermination of whether a defendant’s right to a trial within a reasonable time had been infringed could not be made by the applicationof a mathematical or administrative formula. The court must balance the interests the

section is designed to protect against the factorsthat either inevitably lead to delay or are otherwise the cause of the delay. The balancing “requires an examination of the length of thedelay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay isunreasonable”.

The Court proposed guidelines of eight to ten months to complete matters in this level of court. [11] The other factors that are important to the balancing exercise are the waiver of any time periods; the reasons for thedelay, including the inherent time requirements of the case, the actions of the parties, the limits on institutional resources and otherreasons for the delay; and prejudice to the defendant. In R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26 at para. 18, theSupreme Court of Canada confirmed the guidelines proposed in Morin and the importance of the balancing approach to the assessmentof the delay.

Analysis

(1) Length of the Delay and the Reasons for the Delay [12] Morin states at para. 35 that the period of delay is “the period from the charge to the end of the trial. “Charge” means thedate on which an information is sworn … Pre-charge delay may in certain circumstances have an influence on the over-all determinationas to whether post-charge delay is unreasonable but of itself it is not counted in determining the length of delay.” The Supreme Court ofCanada noted in R. v. L. (W.K.), (SCC), [1991] 1 S.C.R. 1091, [1991] S.C.J.

No. 40, that pre-charge delay is onlyrelevant where there is an evidential foundation to support a conclusion that the delay impacts trial fairness. [13] Mr. Medakovic takes the position that this is one of those cases where the pre-charge delay must influence the overalldelay because the information was not sworn until some five weeks after the alleged offence and the first appearance date was too longafter his arrest. He says that the inherent time requirements of the case are irrelevant to the issues raised by his application.

He arguesthat the proper intake period in his case is at most six weeks: that intake is largely subsumed in the excessively lengthy period betweenarrest and the first appearance. [14] Mr. Medakovic says his case was not complex and the entire investigation was complete when he was released frompolice custody. The police had six weeks between the date of arrest and the first appearance date to prepare disclosure. The onlyimpediment to immediate disclosure was access to a copier and the isolation, reproduction and distribution of digital images.

The onlyimpediment to swearing an information within hours or days of arrest rather than weeks was the will on the part of the police to do so. Inhis case, the pre-charge period was too excessive and a first appearance should have been scheduled within two to four weeks afterarrest. Full disclosure should have been provided on that first appearance date, as it is in most other jurisdictions. A further two weekswould be necessary for the defence to retain counsel, review disclosure and conduct pre-trials. At least four weeks of the delay isattributable to the failure of the Crown to make timely full disclosure.

The balance is institutional delay as the court was not able toaccommodate the parties for trial for eleven months. Viewed this way, the operative delay is 12 ½ months, well outside the upperguidelines recommended in Morin. [15] Counsel for the applicant also contends that a delayed first appearance date results in real prejudice to those defendantswho are unable to minimize the impact of the automatic driver’s licence suspension (ADLS) by entering very early guilty pleas under thenew Interlock regime.

Where the first appearance date is six weeks post-arrest, the 90 day suspension is already half over before adefendant can attend court and plead guilty. The police have had time to adapt their practice to the Interlock program but they have donenothing in this jurisdiction to expedite the laying of charges, the setting of first appearances and the provision of timely disclosure. Thepolice should not be permitted to shelter poor or prejudicial procedures on the basis that the delay is pre-charge and the

section 11(b)clock has not yet started to run. If this practice continues, the result will be the institutionalization of prosecution procedures that arecontrary to the purposes of

section 11(

b) of the Charter and potentially prejudicial to persons accused of drinking and driving offences. [16] In these circumstances, Mr. Stilman argues that this is one of the clearest of cases requiring the remedy of a stay. A staywould send a firm message to the prosecuting authorities that they must act diligently by swearing informations proximate to arrests,preparing and providing disclosure on the first appearance and setting first appearance dates much closer to arrest dates. A failure to doso is unconstitutional and will be sanctioned by a stay of proceedings.

To the extent that the present poor practices result from inadequateresourcing, a message will also be sent to the government that there will be real consequences if the administration of justice continues tobe under-funded. [17] The Crown takes the position that a six week period between arrest and first appearance is reasonable and necessary toenable the police to implement the administrative procedures necessary to monitor and control the charge process and the flow ofdisclosure in a very busy metropolitan jurisdiction where there are multiple cases of this kind. As stated in Morin, the s. 11(

b) Charterclock should not run until the date the information was sworn and Mr. Medakovic placed in legal jeopardy. Pre-charge delay in thecircumstances of this case was not prejudicial as Mr. Medakovic did not wish to resolve his charges through a guilty plea. The Crowncontends that even if the five weeks of pre-charge delay is added to the six weeks post-charge that this case took until the parties were ina position to set a trial date, the entire period is less than three months. Three months has been held to be an acceptable intake period in anumber of similar routine drinking and driving cases where disclosure was not onerous but was delayed, such as R. v. Ireland, [2009]

O.J. No. 767, 2009 ONCJ 57 (C.J.) . [ 18 ] In assessing the position of the parties, I begin by noting that some delay in the processing of charges from arrest to trial is inevitable. I also note that the analysis should focus on the reasonable rather than the ideal. [ 19 ] The delay between arrest and the first appearance provides time for the police and the defendant to take initial steps. The police focus on the acquisition and provision of disclosure and the formality of swearing the information.

A defendant has the opportunity to consult with counsel and consider the many options available to address the charges, including the potential of an early guilty plea under the Interlock program. I place no weight on the defence submission that the pre-charge period in this case was generally prejudicial because of the interaction of the ADLS with the Interlock regime. It is clear that Mr. Medakovic did not wish to enter an early guilty plea under the “Stream A” resolution.

The submission that the practice of allowing for six weeks between arrest and first appearance has the potential to prejudice others and represents a systemic disregard for delay on the part of the prosecuting authorities is speculative in this case. [ 20 ] Speedier charges, first appearance dates and complete disclosure may be the standard in other jurisdictions, as Mr. Stilman contends. Certainly, that should be the goal, in my view.

However, the analysis of delay is individualized and multi-faceted and must focus on what is reasonable in the circumstances of this case rather than what would be optimal. [ 21 ] The Supreme Court of Canada recognized that some delay is inevitable to prepare and process a case even assuming the availability of adequate institutional resources. For this reason, allowance is made in the delay calculus for the inherent time requirements of a case, which are neutral in the s. 11(

b) reasonableness assessment. Inherent time requirements include intake procedures such as bail applications, the retention of counsel, disclosure by the Crown and review of disclosure by defence counsel. Pre- trial discussions between counsel to canvas possible resolution or narrow issues for trial purposes are also part of the intake process. The more complex the case, the more likely it is that greater time will be required to complete these activities. [ 22 ] In Morin , the defendant faced the same charges as Mr. Medakovic. The total period between charge and trial was 14 ½ months.

There was no waiver of any delay. The defendant’s first appearance was six weeks after her arrest. She requested “the earliest possible trial date” on her first appearance although her counsel did not indicate a readiness to proceed to trial. She was given a trial date some 13 months later. The Supreme Court accepted that two months was a reasonable intake period for a routine drinking and driving case involving only police witnesses. The Court held that the institutional delay of some 12 months was not unreasonable. [ 23 ] Mr. Medakovic’s case is not complex.

Two witnesses would be called for the prosecution, a civilian and the arresting officer. There would be potentially one witness for the defence. There was no accident. No toxicologist or other expert witnesses would be required. The breathalyzer technician was not required to attend. The Crown was not relying on any statements for their truth so voluntariness was not in issue. The defence anticipated that the standard Charter arguments involving sections 8, 9 and possibly 10(

b) would be advanced. The investigation was complete as of the date of the offence. [ 24 ] In the six week period after the information was sworn, four appearances were required before the parties were in a position to set a date for trial. Of these four appearances, three were necessary to obtain full disclosure. I agree with the applicant that full disclosure of the DVD evidence, including the booking video, was relevant to making an informed decision about resolution or trial and to conduct meaningful pre-trial discussions. However, routine cases like Mr. Medakovic’s are generally scheduled for ¾ or a full day of trial time. It would have been feasible to

schedule the trial date once the breathalyzer DVDs had been received and reviewed as they are the most critical part of the DVD disclosure. The court could monitor the case thereafter to ensure full disclosure was made in a timely way. Once the booking DVD was provided, the trial time could be narrowed or enlarged if necessary or vacated if a resolution was indicated. That was not done. [ 25 ] The transcripts indicate that none of the adjournments was for a stated purpose of obtaining further disclosure. The first adjournment was to allow Mr. Medakovic to retain Mr.

Stilman and permit counsel to review the written materials provided by way of disclosure. At each of the next two appearances, defence counsel requested an opportunity to review the additional DVD disclosure that was provided. Nothing was said about delay or the consequences of delayed disclosure by either party. Unlike Morin , no request was made for the earliest possible trial date. [ 26 ] I note that in the cases relied upon by the defence [2] the courts used a standard of reasonableness rather than one of excellence to assess the length of the intake period in the circumstances of each matter.

The courts approved intake periods that ranged from as little as one month [3] to as much as 4.5 months [4] . In Chinapen , approximately 6.5 months were required to complete disclosure despite the diligent efforts of the defendant to obtain it in a timely manner and the practice in Durham district “to provide complete written disclosure on the first appearance in routine cases” (emphasis mine). In Skeard , the intake period was longer than normal because it took the defendant two months to retain counsel.

The jurisprudence demonstrates that what is reasonable must be determined by the facts of each individual case. [ 27 ] Mr. Stilman advised that complete disclosure is routinely provided on the first appearance date in other jurisdictions. He contends that disclosure is particularly problematic in Scarborough and that it contributes to the significant delays in setting reasonable trial dates that characterize this court and to the protocol for

section 11(

b) applications that has been put in place. I agree that there continue to be issues involving disclosure in this jurisdiction but the jurisprudence indicates that Scarborough is not alone in this respect. Disclosure issues contributed to the delay assessed by the courts in Heenan, Chavez , Lima and Panko (all Old City Hall), Singh (Newmarket), Chinapen (Durham) and Proo (North York). Both North York and Etobicoke have similar protocols to manage stay applications based on delay as that in Scarborough. [ 28 ] In R. v. Farry , [2010] O.J. No. 1977 (S.C.J.) , Justice Trotter was dealing with a

summary conviction appeal from an impaired driving conviction in a case that originated in Etobicoke. The ratio of the case turns on the sufficiency of the motions court justice’s reasons for dismissing a

section 11(

b) Charter application. An important factor in the determination of whether or not an overall delay in excess of 15 months was reasonable was the failure to provide the DVD of the breathalyzer tests for three months. Justice Trotter commented on the importance of such disclosure to informed decision-making about resolution or trial preparation. In

obiter , he condemned the practice of delayed disclosure of such evidence, noting that in the case before him, the DVD should have been available on the first appearance, one month after the defendant’s arrest. He observed at para. 11 that delay in the disclosure of DVD evidence in drinking and driving cases “is a common occurrence in the Ontario Court of Justice.” I also agree that delayed disclosure is an important factor and one that attracts greater weight in the s. 11(

b) calculus. I agree with justice Trotter that the ideal would be to have disclosure of the written and DVD materials on the first appearance. However, I do not accept that the courts should be setting inflexible deadlines on the provision of disclosure, or specific forms of disclosure, that are based on a standard of excellence and binding in all cases where delay is in issue. [ 29 ] In R. v.

Jesuthansan , an unreported decision of the Ontario Court of Justice in Scarborough on September 21, 2009, Justice Nakatsuru denied an application to stay drinking and driving charges where the overall delay between the swearing of the information and the first trial date was 17 months. Disclosure of the DVDs in that case took over three months and three appearances. The Crown conceded that disclosure was far from ideal. Justice Nakatsuru dealt with the issue whether or not the delay in disclosure should form part of the neutral intake period or be attributed to the Crown.

He held as follows (at p. 12): There is a difference between ideal disclosure periods and reasonable ones. The ideal would be that complete disclosure is immediately available at the first appearance or soon thereafter without the need for any further steps, however, reasonableness must take into account the realities of police investigation, disclosure preparation, and the processes in place to deal with disclosure in each jurisdiction, in each case.

This is not to say that recognition of certain realities should be an excuse for mistakes or inexcusable delays. [ 30 ] Justice Nakatsuru noted that the parties did not treat the delayed disclosure of the DVD evidence, as distinct from the written disclosure, as anything but usual. As in this case, the transcripts reveal all the participants behaving in a manner that indicates the acceptance of this as something that does occur from time to time in the disclosure process.

Justice Nakatsuru held (at p. 14) that the Crown was not without fault but that the disclosure process, “looked at carefully and realistically, just highlights that in a normal intake period, these things do occur. None of the participants took great exception to it and they treated it as a part of normal intake…” In my view, these comments are apposite to the case before me, where the delay in disclosure from the time of the charge was half that in Jesuthansan and two weeks less than the delay in Morin . [ 31 ] To accede to the defence submission would have the effect of starting the

section 11(

b) clock on the date of arrest rather than the date of charge, contrary to the settled law in Morin and in the absence of any evidence that the pre-charge delay impacts on trial fairness in this case. It would also mandate that full written and DVD disclosure be provided on an early first appearance and mandate a much shorter intake period than the intake periods deemed reasonable in most of the jurisprudence to date. Such an approach comes close to setting limitation periods for delay where disclosure falls short of perfection, an approach that was rejected by the Supreme Court.

In the recent case of Godin , the Supreme Court had the opportunity to reconsider the guidelines first proposed in Askov and Morin . The Court reaffirmed those guidelines rather than narrowing them despite the argument advanced in cases such as R. v. Meisner [2003] O.J. No. 1948 (S.

C) and by the applicant that the government has had sufficient time to properly resource the administration of justice so that where “the Crown chooses to run the criminal justice system at maximum capacity in a certain jurisdiction it cannot then ask to be excused from excessive delays.” [5] [ 32 ] While disclosure was far from ideal in this case, the parties were in a position to set a trial date six weeks after the information had been sworn and within three months from the date of arrest. In my view, this is not a case like R. v. Brown , [2005] O.J.

No. 2395 (C.J.) , where Justice MacDonnell observed at para. 52 that the police inaction with respect to delayed disclosure “effectively froze this case in its tracks for a period of 5 ½ months”. I am satisfied that the six week period between October 19, 2010 and December 2, 2010 is neutral intake. [ 33 ] On the evidence before me I see no reason to depart from the normal rule that the s. 11(

b) clock starts when the information is sworn. [ 34 ] The period of institutional delay is 10 months and 29 days, the time between December 2, 2010 when the parties were in a position to set a date for trial, and October 31, 2011, the first available date for a ¾ day trial.

(2) Waiver [ 35 ] There was no express waiver of any portion of the overall delay.

(3) Prejudice to the Applicant [ 36 ] The presence or absence of inferred or actual prejudice is important to a determination whether an extension of the Morin guidelines is unreasonable. As a general rule, the greater the prejudice to the accused, the stronger his or her interest is in being tried within a reasonable time. The type of prejudice that is of concern is prejudice that arises from the delay in processing or disposing of the charge against the accused and not the impairment or prejudice arising from the mere fact of the charge.

The prejudice that arises from the delay in processing or disposing of the charge against the defendant and not the impairment or prejudice arising from the mere fact of the charge. The prejudice arising from a criminal charge is suffered even where the defendant is tried within a reasonable time and is inherent to the system. [6] [ 37 ] Prejudice is to be determined on an individual case basis and the applicant must establish an evidentiary foundation for the prejudice alleged. [ 38 ] Prejudice can be inferred from the mere passage of time or proven by evidence. The longer the period of delay, the more

likely it is that an inference of prejudice will be drawn, depending upon the nature of the charge. However, while inferred prejudice isreal, it is not presumed in all circumstances. Where the applicant has suffered little or no prejudice, his or her s. 11(

b) claim is seriouslyundermined.[7] [39] Actual prejudice may arise in three areas of concern: the liberty interest, the security interest and the fair trial interest ofthe defendant. [40] In this case, I do not find that there has been any impairment of Mr. Medakovic’s liberty interest or fair trial interest. Mr.Medakovic was released on a promise to appear on the same date as his arrest. Apart from the first appearance and this motion, allappearances were by designated counsel. Mr.

Medakovic did not claim that his memory of the events had been affected by the passageof time in either his affidavit or his testimony in cross-examination. There is no claim that other evidence, real or testimonial, has beenlost or damaged by the passage of time. [41] The actual prejudice that Mr. Medakovic claims is to his security interests. He is self-employed in a business providingdesign and production of retail displays in commercial establishments.

After his business went into receivership in 2006, he has beenforced to find employment opportunities as a consultant while struggling to re-establish his own business. In 2010, his first effort to re-establish a business failed. In March of 2011, after his trial date was scheduled, he embarked on a second new business venture in thehopes of establishing a steady income that would enable him to support his two children in the custody of his ex-wife in Keswick. Hetestified that his business is seasonal and that the spring and summer are the key months for growth.

He also testified to the importanceof having a driver’s licence and a car to visit clients and transport his products. I note that an October trial date would ensure he coulddrive during the busiest time for his new company. Despite this, he claims that his efforts to make his business a success have beenfrustrated by the loss of opportunities in key months for development and his inability to obtain a proper office location. He agreed thatboth problems arise from the uncertainty of losing his driving privileges.

The inability to drive would determine not only where hechooses to run his business but also where he chooses to live. He claims that this uncertainty has affected his business, his income, hisability to support his children, his relationship with a new partner and his health. [42] In my view, the prejudice Mr. Medakovic claims is either speculative or a result of his charges and the potential loss ofhis licence rather than delay. [43] Mr. Medakovic has done little to mitigate the difficulties of not having office space.

Even if his trial had been scheduledfor May or June, there was the possibility that he would not have a licence and his business plan must have allowed for this contingency. He conceded that it was feasible to select an office location accessible by public transit but had not done so because “I’m not a warehouseworker” and the optics of taking public transit for his clientele. His comment that he needed ready access to a volume of businessproducts normally kept in the rear seat of his car seemed to be an afterthought to explain his reluctance to use public transit.

He statedthat he was not comfortable having an employee drive him to meetings because of the embarrassment and stigma of having these chargespublicly known to his staff. It appears that he prioritized perception over business realities. The success or failure of this latest ventureis speculative, particularly given the failure of two businesses in the recent past and the economic issues that continue to be problematicin Canada and elsewhere. [44] His testimony made it clear that the stress on his new relationship flowed from the fact of his charges and their nature.

He also conceded that while his partner was initially very angry with him, she is now supportive and their relationship is good. [45] Mr. Medakovic stated that his health problems started right after he was charged. He admitted that he had been dealingwith a lot of stress in past years as a result of his marital breakdown, the failure of two businesses, a forced bankruptcy and moneyproblems. While I accept that Mr. Medakovic’s anxiety is real, much of his stress pre-existed the charges and most if not all of it isrelated to the possibility of losing his licence rather than the delay in his trial.

There is no medical evidence to substantiate his claim thathis stress has reached the point where it interferes with his productivity. [46] While Mr. Medakovic is not required to do anything to expedite his trial, he did not bring the specific prejudice he allegesto the attention of the prosecuting authorities at any time. As the Ontario Court of Appeal has noted in R. v. Bennett, (ON CA), [1991] O.J.

No. 884 at paras. 109-110, “there comes a point … where an accused who is suffering special prejudice from thedelay of his trial must bring his or her plight to the attention of the prosecuting authorities and the courts.” The failure to assert prejudiceuntil the filing of this application meant there was no opportunity for the Crown or the Court to take steps to mitigate the prejudice healleges. [47] On the evidence before me, I find that there is minimal inferred prejudice and no real prejudice.

Balancing the Interests of the Applicant and the Interests ofSociety [48] The applicant states that there is an attitude of complacency on the part of the prosecuting authorities and the judiciary inthis jurisdiction that has resulted in a routine tolerance for delays beyond the upper limit of the Morin guidelines. [49] I acknowledge that “a culture that accepts delays as inevitable is constitutionally impermissible”.[8] In my view,Scarborough is not such a jurisdiction. Several initiatives have been put into place to address the problem of institutional delay inScarborough.

Since 2008, judicial pre-trials in cases of drinking and driving have been available any day, at any time when the pleacourt is in session. Since 2010, this court has implemented a protocol requiring that s. 11(

b) stay applications be perfected and heard bythe scheduled trial judge at least three months in advance of the trial. This protocol is designed to address the efficient use of court timeand to ensure that the allotted trial time is devoted to trial issues rather than motions that might incur further delay to the completion ofthe trial. Since March of this year, the trial co-ordinators have been instructed to double-book matters so that trials can be providedwithin the 8 to 10 month guidelines. Unfortunately, this case pre-dates that initiative.

[ 50 ] While the Supreme Court of Canada in Morin and Godin recognized a guideline of eight to ten months in assessing institutional delay in the Provincial Courts, it also recognized that “deviations of several months in either direction can be justified by the presence or absence of prejudice”. [9] [ 51 ] Drinking and driving offences are serious and can cause “significant societal loss to the country”. [10] The balancing test recognizes that as the seriousness of the offence increases, so does the societal demand that the defendant be brought to trial. [11] This does not mean that the societal interest trumps the individual interests engaged by s. 11(

b) of the Charter . It does mean that the seriousness of the charges is “one of the factors to be taken into account in the balancing of interests and courts have always been more reluctant to stay charges where there is a strong societal interest in having the case tried on its merits, particularly where the length of the delay is not significantly over the guidelines.” [12] [ 52 ] In my view, considering all of the relevant factors, particularly regarding the absence of real prejudice, I find that Mr.

Medakovic has failed to establish on a balance of probabilities that his right to a trial in a reasonable time has been infringed. [ 53 ] The application for a stay of proceedings is dismissed. Released: September 2, 2011. Signed: “Justice S.E. Marin”