R. v. De La Torre, 2011 ONCJ 775

COURT FILE No.: Newmarket Courthouse 10-10440, 10-10563, 10-90001399 Citation: R. v. De La Torre , 2011 ONCJ 775 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MIGUEL A. DE LA TORRE Before Justice Howard I. Chisvin Reasons for Judgment released on December 12, 2011* J. Gleitman ................................................................................................................ for the Crown D. Maubach .......................................................................... for the accused Miguel A. De La Torre Chisvin J.: [ 1 ] Mr.

De La Torre was charged with the offenses of impaired driving and over 80. These offences are alleged to have occurred on October 24, 2010. Mr. Del Torre retained counsel and a trial date was ultimate set for the 24th of August 2011. That trial was adjourned. A new trial date of December 20, 2011 was ultimately set. In the intervening time this 11(

b) application has been brought. [ 2 ] How 11 (

b) applications should be analyzed is new trite law. The principles to be considered have been set out in hundreds if not thousands of cases. It is those principles I will use to analyze this application. In doing so, I remind myself that each 11(

b) application must also be analyzed on its own unique set of factual circumstances. [ 3 ] So I begin by considering the facts that underlay this application. As I have said, Mr. De La Torre was charged with the two offences on the 24th of October 2010. After being processed at the police station he was released by the police on a promise to appear. His first court date was set for November 17, 2010. According to the material filed with the court, Mr. Del Torre retained counsel as early as November 2, 2010. [ 4 ] On November 17, 2010 counsel for Mr. Del Torre had an agent appear in court on his behalf.

The Crown indicated they would be proceeding summarily and provided disclosure material. The matter was then adjourned until December 8th to allow counsel to review the disclosure material provided. [ 5 ] By November 24th, counsel had reviewed the disclosure material if not in its entirety at least sufficiently enough to send a letter to the Crown’s office requesting the disclosure of further material.

Specifically, the letter requested the disclosure of all audio and video tapes taken by the police with respect to Mr Del Torre's arrest and detention. [ 6 ] This letter was actually faxed to the Crowns office in Newmarket on the 25th of November 2010. [ 7 ] The acting case management coordinator responded to this letter indicating that the DCCTV was ordered and that counsel will be advised once it has been received so that it could be picked up. [ 8 ] That letter was dated December 1, 2010, and faxed to counsel’s office that day. [ 9 ] The next court date, December 8th, 2010 an agent for counsel indicated on the record that they were still waiting on disclosure.

Apparently the agent had been advised that the DCCTV was still missing. Counsel for the applicant was aware that a Crown pre-trial had to been done in person. For these reasons, counsel instructed the agent to adjourn the matter until 17th of January 2011. The transcript only reflects the need for disclosure, but the affidavit filed and not contested in the Applicant’s Application record sets out both of the reasons. The matter was in fact adjourned to the 19th of January, 2011 and not the 17th as counsel had requested.

The 19th of January was not a date that counsel was available. [ 10 ] On January 19th, an agent was to have attended court for counsel. There was an issue with the agent and as such the matter was adjourned until the 21st of January [ 11 ] On January 21st, according to the transcript of the proceeding the matter was adjourned until the 17th of February so that a resolution meeting could take place. The affidavit of Lucy Wetherall reflects that counsel had still not received the DCCTV nor had he

been notified that it was available. [ 12 ] On February 17th, counsel did attend court with respect to the matter. A pre-trial conference was held with the Assistant Crown. Counsel was provided with a DCCTV DVD of the applicant providing breath samples. A trial date was set that day for August 24th, 2011. [ 13 ] The transcript of this date indicates that there was no comment made about 11 (

b) at all. Neither does the record reflect alternative dates that counsel might have been available for trial. The transcript also does not specify how much more time, if any counsel would need to actually be ready for trial. Also important, there was no explicit or implicit waiver of any 11(

b) right the applicant had. [ 14 ] On the 24th of August 2011 the matter was scheduled for trial. Counsel appeared with his client and a witness for the defence. On that day, the Assistant Crown advised the court that new disclosure had been provided that morning and that there was more to come. The Assistant Crown indicated that she had only been recently assigned to the case. When she was reviewing the file she realized that there were some disclosure items, not in the possession for the Crown that needed to be obtained.

She had contacted the police to obtain that material but unfortunately had just received some if until the day prior and some of it was yet to be obtained. [ 15 ] The Assistant Crown conceded very fairly that at least some of the disclosure was critical to both the Crown and the defence and some potentially less relevant. As such the Crown was not in a position to oppose any adjournment request of the trial even though it was the trial date.

The Assistant Crown did not provide any further details to why it was only recently realized relevant disclosure was missing. [ 16 ] A second factor was also playing out at this time. It was clear that the trial was not going to be reached in the court room that it was scheduled in. Indeed, it seemed likely that it would not be reached in any court room on the trial day. [ 17 ] Thus, the trial was adjourned. A new trial date was not set. The matter was adjourned to allow counsel for Mr. De La Torre to review the new disclosure that he had been provided on the trial date and obtain the still outstanding material.

Thus the matter was adjourned until the 16th of September 2011. [ 18 ] On August 29th 2011 counsel received a DVD of photos of the scene. [ 19 ] On September 16th, agent for counsel appeared in court. The matter was adjourned until October 7th 2011. The transcript of the court proceeding reflects only that counsel was still awaiting instructions from his client and had to hold a further meeting with the Crown, As such counsel requested the matter be adjourned until Oct 7th 2011. The affidavit of Lucy Wetherall indicates more was going on then what was reflected in court.

Apparently counsel was looking to determine if he could find earlier trial dates. In order to do this he had to wait and see if something would happen with another matter. As it happened it did and as such counsel was ultimately able to offer dates to the court in his calendar sooner than if had been required to set the date on September 16th. [ 20 ] The matter did return to court on October 7th. The transcript does not reflect much significance beyond the fact that none of the parties in court that day knew why the original trial had been adjourned or why the matter had the appearance of being bogged down.

A date of October 13th 2011 was requested by counsel so he could appear in person. [ 21 ] On October 13th, counsel appeared in court with the applicant. At that time a new trial date was set of December 20th 2011. A motion date to hear the 11(

b) application in advance of the trial was also set. [ 22 ] These then are the factual circumstances that surround the time line with respect to this matter. [ 23 ] Mr. De La Torre did testify in the course of this 11(

b) application in addition to the filling of his affidavit that is contained within the applicant’s record. There is no question that Mr. De La Torre suffered from the anxiety, concern and stress that most people feel as the result of facing outstanding charges. The significance and the impact of this type of prejudice increases the longer a matter is outstanding. [ 24 ] Mr. De La Torre also was placed at additional financial hardship as a result of the trial not being heard on August 24th 2011. It is clear that he was required to pay additional counsel fees as the matter got adjourned.

Not only is this significant but it also appears to me to be an obvious consequence of trials being adjourned to the detriment of the accused individual when it is caused by crown conduct. [ 25 ] Mr. De la Torre also expressed that he lost additional funds as a result of consequences of his conduct on the night of the alleged offences. This included the necessity to purchase a new car. Frankly, that issue is of no relevance to this 11(

b) application and most certainly does not reflect any of the type of prejudice the court is to inquire into. Consideration of the relevant law: [ 26 ] I know turn to consider the law as it applies to this matter. [ 27 ] Since the Supreme Court of Canada released its decision in R. v. Askov there has been mountains of paper used to review, analyze critic, consider and contemplate 11(b). There are likely thousands of reported decisions dealing with 11 (

b) and just as many or more that have never been reported. This unfortunately has become a prolific area of Charter law, with decisions being written by all levels of the court. [ 28 ] Counsel for the Crown has provided the court with the recent decisions of Justice Code in a quartet of cases. I have read with great interest these decisions. In the end thought, not withstanding Justice Code’s analysis, I am bound by the quartet of case from the Supreme Court of Canada. These cases are Askov , Morin , Sharma and Godin . It is to these cases that I turn to find the principles of

law that I am to consider and how they are to be applied. I remember as well, as I said earlier, each case must be decided based upon its own factual under pinning. [ 29 ] The four cases from the Supreme Court of Canada set out clearly factors the court is to consider in reaching a conclusion as to whether or not the applicant’s 11(

b) rights have been violated. These four factors are: 1) The length of the delay; 2) the waiver of any time period; 3) the reasons for the delay, including; a. any inherent time requirements of the case; b. actions of the accused; c. actions of the crown; d. limitations on institutional resources; e. other reasons for the delay; and the final factor, 4) prejudice to the accused. [ 30 ] The court then is required to then balance these factors with the interest that s. 11(

b) protects. The Supreme Court of Canada in Morin discussed extensively the relevant interest that s 11(

b) is aimed at protecting. I do not propose to set out that discussion here but will consider the relevant interest. The length of the delay. [ 31 ] The Supreme Court of Canada has provided the courts with guidelines as to what would be a reasonable period of time for a matter to get to trial. Individual cases are then assessed in light of these guidelines. The time period may vary, either more or less, depending on various circumstances including the needs of local communities. [ 32 ] What is clear though, is that the guidelines are a jumping off point to determine if the court should even being to make an inquiry into a complaint that an 11(

b) right has been violated. In the matter before me, the overall time period, from charge until trial date is just a couple days shy of 14 months. This is certainly a period of time that exceeds the suggested guideline period as set out by the Supreme Court of Canada and as such requires that an inquiry should take place. Having reached this conclusion then, it is necessary to look to the circumstances of this case and consider the time frame in light of the relevant factors to determine if there has been an 11(

b) violation. Waiver of time periods [ 33 ] As a starting proposition, for there to be a waiver of a time period it should be "clear and unequivocal" ( Morin pg. 12 of 24). As Sopinka J said in Morin , "Waiver requires advertence to the act of release rather than mere inadvertence.

If the mind of the accused or his counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then the conduct does not constitute waiver." Such conduct that does not amount to waiver may however be a factor to be considered by the court under the heading, actions of the accused. [ 34 ] While the accused or his counsel must be found to have turned their mind to the issue of waiver, waiver of 11(

b) rights can be found to have occurred implicitly and need not just be explicit. [ 35 ] Having looked at the evidence presented in this case, I cannot conclude that there has been any waiver of time by counsel of Mr. De La Torre. Reasons for the Delay [ 36 ] It is obvious that no criminal trial can take place without some delay. The question becomes in each circumstance is how much delay is appropriate.

a) Inherent time requirements [ 37 ] All cases require an inherent time period in order to bring the matter to trial. This allows all parties to review the disclosure, assess their positions and be prepared to move the matter forward. Included in this time obviously is the time required for an accused individual to retain counsel and to have that counsel review disclosure and be ready to proceed to trial

[ 38 ] The normal rule of thumb or guideline is approximately 60 days. There may be reasons in some situations to shorten that time. There may also be reasons, especially as a case becomes more complex to length that time. [ 39 ] In Mr. De La Torre’s matter, there is no reason to conclude anymore than the period October 27, the swearing of the information, until December 8, 2010 should be considered as the inherent time required for all parties to be ready to go to trial. No one has suggested that this matter was anything beyond what is unfortunately known as a run of the mill impaired and over 80.

That means that virtually the entire investigation was complete by the time Mr. De La Torre was released from the police station. I appreciate that the police are required to pass on material to the Crown to vet and disclose. This includes copying of audio and video recordings. Technology has moved a long way from the days of VCR’s when copying of images was a slow process. The digital era has made that not only a very fast process but a relatively inexpensive one.

Thus the copying of the audio and video material, the copying of notes and other material and the vetting by the Crown could all have been done within that initial intake period. [ 40 ] Indeed one wanders why it is that counsel needs to make a special request for the disclosure of the DVD. This is regular and ordinary material, extremely relevant to this type of case. The fact that it is not automatically disclosed in this day and age, because of a policy established by the Crown requiring counsel to specifically order the material consistently results in these matters being delayed.

If this policy did not exist, then matters would move a long more expeditiously. [ 41 ] As well, there is no question that Mr. De La Torre was anything but diligent in retaining counsel. He had done this by the beginning of November. Disclosure, at least initial disclosure was obtained at his first court date.

Counsel had reviewed it and was making additional request of clearly relevant material to the Crown quickly. [ 42 ] Had the Crown moved diligently, the inherent time period I have set out would have been all that was needed here to get this matter moved forward quickly to trial. [ 43 ] In the end, this case can only be described as a simple drinking and driving matter, which the Crown was proceeding with summarily, and as such, this intake period should have been sufficient.

b) Actions of the accused. [ 44 ] As I have indicated, Mr. De La Torre was diligent in his conduct in retaining counsel and being prepared to proceed. The delays in moving the matter forward were generally those of the Crowns by not providing disclosure or, as I will touch on later, by demanding pre-trials for these types of offences be done in person only. [ 45 ] The post trial period, that is the period following August 24th is somewhat more complex.

In the course of argument counsel for the Crown conceded that as a result of the late disclosure counsel did need the opportunity to review it and thus the period of August 24th to September 16, 2011 should fall at the feet of the Crown. However, it is the Crowns position that the next two adjournments should fall at the feet of the defence. That is from September 16 until October 13 when the trial date of December 20th was set. [ 46 ] There is no question that at first blush that seems like a tempting proposition.

But it is important to remember that this delay was a direct result of the non disclosure of relevant material by the Crown for which there was no explanation provided.

The Supreme Court of Canada recognized this very notion in Godin when delay that occurred as a result of the non- disclosure for which there was no explanation, and then lead to a re-election by counsel, to hold a preliminary hearing instead of a trial (see paragraph 20) was deemed to be caused by the conduct of the Crown, and not placed at the feet of the accused even though the accused re-elected thus seeming to be responsible for lengthening the over all process. [ 47 ] As well, there is another factor that should be added into the mix with respect to this time period.

While it could be argued that this time period extended the length of the delay, it is actually contrary to the reality when one looks into the situation carefully. It might be said that the applicant should have set a trial on September 16, or at least could have if he was concerned about the passage of time and delay, the reality of the situation on the facts before me is that would have indeed have the opposite effect. Counsel was trying to move the matter to trial sooner. In order to do this he needed time to see if his calendar would clear.

If it did, as expressed in the affidavit of Lucy Wetherall he would have time sooner to deal with the matter. In fact, this was what happened. So with the opening of time in his calendar, counsel actual was able to secure an earlier trial date. Thus what appears on the face of it to be a delay because of an adjournment, a careful review shows that in fact the opposite was actually the situation.

As well, a quick review of the dates available both on September 16 and the October 13 show that there was no practically difference in trial dates available. [ 48 ] The final post first trial period is between October 13 and December 20. This time period is clearing institutional. Additionally, by this time counsel for the applicant was clearly well prepared and ready to proceed to trial. [ 49 ] I wish to point out a couple other matters as relate to conduct of the applicant and his counsel.

First, in my view accepting the inevitable is not conduct that in any way detracts from the applicants desire to move his matter forward expeditiously. Thus the accepting of the first trial date with no comment relating to delay does not suggest a lack of desire in moving the matter forward expeditiously.

As the Supreme Court of Canada said In Morin , while consent to a date may give rise to waiver, "This will not be so if consent to a date amounts to mere acquiescence of the inevitable" ( pg 12 of 24) [ 50 ] Secondly, even if there was an obligation of some kind for counsel to set out on the record all dates that they might be available, that is certainly contrary to the general practice in this jurisdiction and has not been demanded of counsel.

If the quartet of decisions by Justice Code now require something different to occur- and I am not sure they necessarily do - then counsel cannot be found at fault for simply following local practice (See: R. v. Morin at page 12 of 24) c. Actions of the Crown

[51] I have already alluded to conduct of the Crown that has resulted in Mr. Del La Torre's matter being delayed. The firstand most significant is that full disclosure was not provided to the applicant until his trial date and after. This was not some newdisclosure but material that very much existed by the end of the initial investigation of the applicant when he was first arrested. Whilecounsel for the Crown very fairly conceded that this was a problem on the trial date when the matter was adjourned, there was never anexplanation as to how or why this non disclosure matter came to be.

It strikes me as significant that there was no explanation for theCrown conduct or lack thereof. Justice Cromwell noted that when an accused is entitle to disclosure, and it is not provided by theCrown, and no explanation is given for why it was not provided, it cannot be said that actions of the accused that fall from thatnecessarily constitute waivers of time (para. 20 Godin) [52] Further Crown policy has impacted on the delay in this matter.

Both the policy requiring a letter from counsel to obtainDVD disclosure and the policy not allowing for pre-trials of this type of offence over the phone but only by counsel in person. As withthe setting of a trial date, the Crown cannot expect counsel to be perpetually available to attend for such meetings. As Justice Cromwellsaid in Godin, "scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes require defencecounsel to hold themselves in a state of perpetual availability" (para. 23). This is true not only for trial dates, but for Crown pre-trialmeetings as well. The Crown must be flexible in the manner in which they allow for pre-trial discussions to take place if the trialprocess is to move along expeditiously. Holding to only a single manner of holding pre-trials, compelling counsel’s attendance willinevitably result in delay.

If the Crown uses only one method they are doing so with full knowledge of the potential consequences andthat this procedure may very well result in delay and they must accept responsibility for it. d. Limitations on institutional resources [53] The issue of the limitation on institutional resources becomes a factor at the point in time that all parties are ready fortrial, but the judicial system does not have sufficient resources to provide appropriate court space. It is the function of the government toensure that there are proper court resources to deal with matters.

This is not a mechanical or mathematical formula that is to be applied.Rather it takes into account the realities of resources available to government and that there are many competing interests and needs forthe same limited resources. Yet, a lack of resources cannot be used as an excuse to make a

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b) a right with no meaning. Thus abalance has to be struck. The purpose of the guideline as expressed by the Supreme Court of Canada is to give the government anappropriate range within which to work. That range however is not totally static as I have said, but consideration has to be given to thespecific jurisdiction and the needs of that community. [54] For example, in Morin the Supreme Court of Canada recognized that Durham region was experiencing a significantgrowth and rapid change. This change placed a temporary strain on local resources.

So that was a factor the court considered in applyingthe 8 to 10 month guideline. [55] How does this then apply to York Region? The lack of judicial resources is not something new or novel in thisjurisdiction. For a number of years the lack of judicial resources and courts space has been commented on by numerous judges. As longago as October of 2008, Justice Minard in R. v. Badhan said starting at paragraph 8: “The frequency of these applications has grown. It seems to me, again, over recent times I've been a judge in this jurisdiction for about16 and a half years and throughout that period of time 11(

b) cases have been frequent. They are becoming increasingly frequent yetagain. There are times where we tend to ebb and flow. There have been administrative types of attacks on the problem by having blitzcourts and attempting to reorganize how we deal with cases, trying to negotiate resolutions in cases and becoming much more aggressivein that fashion at the front end through steps taken at the Crown Attorney's office and in other ways but over that same period of timehundreds and hundreds of York Regional Police officers have been hired. There has been a tremendous increase in case load.

Thepopulation of the region has just about exploded, increasing, and I don't have the precise statistics but somewhere in the order of 30 to 50percent, and yet the population of judges has remained essentially unchanged at about a dozen since the time I was appointed. Iacknowledge it is not that the government has done nothing. My appointment was part of the response to the decisions of R. v. Morin, (SCC), [1992] 1 S.C.R. 771, and R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, but since my appointment Ibelieve our number has remained either the same or possibly one more.

So it is unchanged over the 16 years”. [56] In May of 2011 Justice Minard in R. v. Chou reiterated the same comments: The second factor that tends to weigh in favour of the application is the fact that not only my decision in R. v. Badhan but I think it isalmost universal amongst the judges here in Newmarket and I am just going to summarize here that the approach taken to the guidelineshas become over the last several years increasingly strict. I think that is the inevitable conclusion that can be reached from the cases.

Some of the reasons for that have been set out in my decision in Badhan. 32 Not all the judges are in agreement here. Some think, as I understand it, that the guidelines should be strictly enforced at the lowerend so anything over eight months generally may well lead to a granting of an 11(

b) application. 33 Other judges are maybe leaning more towards the end of the 10 months. Whatever the case may be of course, it needs to bestressed that each case falls on its own facts and the guidelines remain the guidelines. They are not rules of law. They are not statutes tobe strictly applied. But on the other hand, we have taken -- if I may say so a rather tougher, more strict approach because of the ongoing11(

b) issues on some of the factors I set out in Badhan that continue to remain largely unaddressed and when I state that I appreciate theJustice on Target initiative, which did not involve the creation of any more courtrooms or the increase in any number of the complementof judges to actually handle the cases or increases in the number of Crown counsel to prosecute cases and the like but dealt withadministrative changes. 34 The success of that initiative is still to be determined and maybe subject to dispute but suffice it to say that in my view some of mycomments in Badhan remain applicable today, and I think it remains clear that the judges as a whole in this jurisdiction have and

continue to take a strict approach on applications of this kind because of the long history of these types of applications in this Region where there has been a dramatic increase in virtually every factor leading to an increase in charges except an increase in judges or courtrooms to accommodate them. [ 57 ] Indeed, we are, in this jurisdiction now setting many trials into the year 2013. These are not necessarily complex matters, just ones with numerous witnesses and cannot be fit into the little backfill time that has been made available.

Certainly, despite the significant growth in this jurisdiction and the increase in the number of police and Crowns, no further judicial resources have been added, as noted by Justice Minard. [ 58 ] Recognizing these comments it is clear in my view that by now, this jurisdiction which has constantly struggled with the issue of 11 (b), should be at the lower end of the guide line range, if not below it.

Resources have been spent, but not in the court house for court rooms nor additional judicial resources. [ 59 ] As I said above, institutional delay arises when all parties are ready to proceed but the courts are unable to provide a day. To this end, the Supreme Court of Canada in Morin and other cases have talked about the time needed for counsel to prepare for trial and thus some time is taken off from the calculation of time when the trial date is set.

While Morin requires consideration of this time, and I have, it would be wrong to suggest that this time period is long for matters such as the one that is before when, especially when the individual is represented by very experience counsel. Much of the preparation has taken place in the form of the review of the disclosure. In order to set dates counsel need to advise the court if there is a Charter issue. Clearly in order to know this counsel must be prepared for trial when they set the date.

These are also often the type of case that Crown counsels are given the brief only a few days before if not the morning of trial itself. Thus, it would be, in my view, wrong to overestimate the time needed for experience counsel, as is true in this matter to actually prepare for trial after a date has been set. I appreciate Justice Code puts some emphasis on this area when he refers to R. v. M. (N.N.) at paragraph 28, 29 and 70. It is my view that paragraph 70 should be read in its entirety. That paragraph reads: Moreover, neither party in this case took into account the preparation time required by counsel.

As noted above, Sopinka J. in Morin made clear that the time counsel require to prepare for trial and the other steps in the proceeding is inherently required. Defence counsel indicated to the court on November 22, 2004, that he required two weeks to prepare for the s. 11(

b) application. The record does not indicate any estimates of counsel as to the preparation time required for trial, the preliminary hearing, the judicial pre-trials, the bail hearings and the other steps of the proceeding. I decline to make an allowance for preparation time in the absence of indication from counsel as to the amount of time spent on the case and when they spent that time. The allowance for preparation time in this case, if one were made, would have to be increased because the respondent changed counsel leading to inevitable duplication of effort.

Preparation time may have run concurrently with time attributed to one of the other categories and would affect the analysis only if it reduced Crown or institutional delay [ 60 ] Reading the paragraph then it would be wrong to over extend the significance of this area in the matter before me. e. Other reasons for the delay [ 61 ] I cannot find any issue to deal with under this heading. Prejudice [ 62 ] As I indicated earlier Mr. De La Torre provided an affidavit setting out the prejudice he claims to have suffered as a result of the delay in this matter getting to trial. There is no question that Mr.

De La Torre suffered from the anxiety and concern and stress that most people feel as the result of facing outstanding charges. While often we do not give that type of prejudice much significance the court should not under estimate the effect that a criminal charge can have on a person and thus result in prejudice. The longer that a criminal charge remains outstanding, the more significance this type of prejudice is. This type of prejudice is often referred to as inferred prejudice.

Regardless of what it is called, having the sword of Damocles hanging over your head with nothing more can, in and of itself, be very stressful. Justice Cromwell in Godin recognized this where he found this to be one of the three types of interest that fall under the category of prejudice.

At paragraph 30 he refers to it as "...security of the person in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge". [ 63 ] The significance and the impact of this type of prejudice increases the longer a matter is outstanding. [ 64 ] Mr De La Torre also was placed at additional financial hardship as a result of the trial not being heard on August 24th 2011. It is clear that he was required to pay additional counsel fees as the matter got adjourned.

This is a significant and obvious consequence of the trial being adjourned because of Crown conduct with respect to the issue of disclosure. [ 65 ] Thus, I conclude that Mr De La Torre suffered not only from inferred prejudice but also suffered real prejudice in the circumstances of this matter. Society’s interest in having the matter dealt with on its merits. [ 66 ] It is always preferable to have an allegation of criminal conduct dealt with on its merits. That is always in the best interest of the community.

However, society also has an interest in ensuring that the criminal justice system is fair to all parties. There is a

societal interest in upholding rights the Charter was designed to protect. [ 67 ] In Askov , Justice Cory comments about the delay and the impact that it has on society’s interest: “Indeed the delay is of such an inordinate length that public confidence in the administration of justice must be shaken. Justice so delayed is an affront to the individual, to the community and to the very administration of justice.” Justice Cory continued: “The community has good reason to be alarmed by the commission of serious crimes.

There can be no doubt that it would be in the best interest of society to proceed with the trial of those who are charged with posing such a serious threat to the community. Yet, that trial can only be undertaken if the Charter right to trial within a reasonable time has not been infringed. In this case that right has been grievously infringed and the sad result is that a stay of proceedings must be entered.

To conclude otherwise would render meaningless a right enshrined in the Charter as the supreme law of the land.” [ 68 ] Having reviewed and balanced the factors that I must, I conclude the following is the appropriate apportionment of time for this matter.

October 27,2010 – November 17 2010 21 days Time between swearing of the information and first appearance Inherent November 17, 2010 – December 8. 2010 21 days Review of initial disclosure, request for further disclosure Inherent December 8, 2010 – January 19, 2011 1 month, 1 day Defence awaiting DVD disclosure Crown January 19, 2011 – January 21, 2011 2 days Defence request Defence January 21, 2011 – February 17, 2011 27 days Counsel still awaiting DVD and attending for Crown Pre-trial Crown February 17, 2011 – August 24, 2011 6 months and 7 days Trial date set.

Institutional except for 7 days which will be considered as preparation time and thus neutral August 24, 2011 – September 16, 2011 23 days Trial adjourned because of non-disclosure Crown September 16, 2011 – October 7 and then to October 13, 2011 27 days Defence obtaining instructions as a result of late disclosure by the Crown and then attempting to find an early trial date Crown October 13, 2011 – December 20, 2011 2 months, 7 days Delay to the second trial date Institutional [ 69 ] Having reached this conclusion and bearing in mind that the court in assessing responsibility should not find itself unable to see the forest for the trees, as Justice Cromwell said in Godin , I conclude that the responsibility for the delay in this matter is as follows: [ 70 ] The total time from swearing of the information to the second trial date is approximately 13 months and 3 weeks; of that time, the break down as I find it to be is: Inherent time was: 42 days Defence time was: 2 days plus 14 days preparation time Crown time was: approximately 3 months 28 days Institutional time was: 8 months This results in a total delay of approximately 11 months and 28 days. [ 71 ] Having reached this conclusion, and in balancing the factors that I am required to, including the real and inferred prejudice that Mr.

De la Torre suffered, and the societal interests, I am satisfied that Mr. De La Torres

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b) Charter rights have been violated and the charges he faces must be stayed.