R. v. Mahmood, 2011 ONCJ 779

COURT FILE No.: DATE: 2011·December·13 Citation: R. v. Mahmood , 2011 ONCJ 779 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MUBSHAR MAHMOOD Before Justice J. M. Grossman Heard on Thursday, October 6, 2011 Ruling released on December 13, 2011 P. Garcia......................................................................................................... Counsel for the Crown P. Locke .....................................................................................................

Counsel for the Accused Grossman, J.: [ 1 ] Mabshar Mahmood has applied for an Order to stay the proceedings pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis of an alleged violation of his rights pursuant to s. 11 (

b) of the Charter . [ 2 ] Let me first address the reference in the Respondent’s Factum at paragraph 40. Reference is made to the Application not being filed in accordance with the Rules or the practice direction set out for this Region. I agree it would have been preferable to hear this Application on a date prior to the trial date. I agree there are Rules. I also am aware of the Watt-Durno Report referred to in the case of R. v. Yoshida , [2010] O.J. No. 1593 referred to me by the Crown. That report recommended that a judge exercise discretion whether to hear applications that did not comply with the Rules.

While the notice in Yoshida was vague and filed “unconscionably late” and deficient in content, Justice Salmers was satisfied the interests of justice required that he rule on the merits of the application. I share the same view. [ 3 ] Mr. Mahmood was arrested and charged on June 17, 2010 with sexual assault and forcible confinement contrary to Sections 271 and 279(2), respectively, of the Criminal Code . The Information was sworn June 18, 2010. [ 4 ] He was held in custody and released on consent on a $2,000 surety bail the next day June 18, 2010 with conditions and required to re-attend July 22, 2010.

The conditions included not to be on the York University campus which may restrict his employment as a taxi driver. [ 5 ] He re-attended July 22, 2010 with retained counsel and the matter was put over to August 12, 2010 to secure disclosure. [ 6 ] It is at this point that the matters start to stall. From August 12, 2010 to September 30, 2010, each of the Crown and Defence point the finger at each other. Crown argues defence adjourned the matter without reason. [ 7 ] Defence argues the matter was adjourned pending receipt of DVD disclosure which was important to assess whether the matter may be disposed of.

On December 2, 2010, Ms. Locke stated at page 3, line 15: “It’s here today to confirm receipt of an important DVD, it’s a DVD of – of a cab, the interior of a cab, which allegedly may or may not dispose the offence.” [ 8 ] She goes on to refer to it at page 5, line 7: “All right. So, we’ll put it to January the 20 th in this Court to confirm that very important and final piece of disclosure.” [ 9 ] At the bail hearing the transcript states the allegation relates to an alleged molestation of a taxi fare by the accused, a 31 year old, married man, father of two children with no record or outstanding charges.

A synopsis filed on this Application confirms the allegations. [ 10 ] It seems reasonable that a DVD of in-cab activity would be relevant to the allegation and helpful in determining how much trial time was required or whether there would be a trial at all. Indeed, disclosure of this DVD may have an impact on possible resolution of

the matter. [11] Filed as Exhibit 3 is a Toronto Police Service Exhibit list which was disclosed July 22, 2010 referring to video footage fromcab. [12] Filed as Exhibit 2 is a Disclosure Request Form dated August 12, 2010 with a series of boxed items. One is marked photo andis not check off. Another is marked video, is checked off and also refers to three surveillance videos. [13] On August 31, 2010, it appears still photos on a disc are provided.

No reference is made to videos or DVD. [14] By the Judicial Pre-Trial, this issue of videos is still not resolved and the matter is further adjourned to November 2, 2010 toexplore this issue of videos.

There is no evidence anyone has confirmed they do or do not exist until February 17, 2011. [15] The transcripts seem to confirm that this DVD had still not been provided by the court appearance on November 2, 2010 as theTrial Date Assignment Sheet completed, dated and signed on November 2, 2010 by Crown counsel, Defence counsel and Judicial Pre-Trial Judge still shows disclosure to be incomplete, specifying the video. [16] Why did it take over 4½ months to provide a relevant piece of disclosure or at least conclude whether it was still pictures onlyor video? Why didn’t the Crown clarify this sooner?

Such clarification may have moved the matter along more quickly toward trial orresolution. [17] The entire period of time under consideration is 475 days or 15 months, 18 days from June 18, 2010 (day the Information wassworn) to October 6, 2011 (the trial date). This period of time warrants an examination by the court to assess the reason for this delay. [18] On September 30, 2010, a Judicial Pre-Trial is set for October 26, 2010.

I understand to clarify the quality of the DVD, thematter was adjourned to November 2, 2010 and on November 2, 2010, a trial date was set for October 6, 2011. [19] Further intervening dates continued thereafter to address outstanding disclosure until the last appearance of February 17, 2011when it went directly to the trial date of October 6, 2011. On February 17, 2011, Crown confirms there are no videos. [20] The test for analysis was set out in R. v. Morin (1992), (SCC), 1 S.C.R. 771 and has been followed by all Courtlevels in this Province since.

I need not repeat the factors which are well-established. [21] In recent months, I have considered several applications for relief alleging a breach of

Section 11 (

b) of the Charter. Inreferring to my brother Justice Duncan in R. v. Bergen, [2005] O.J. No. 2481, I re-iterate what I have said before in repeating hiscomments in Bergen: “5 I have grave concerns that I've erred in the past and I'm continuing to err about this and as are my colleagues, and that really thiswhole area needs to be looked at afresh and guidance given to this court. If I can't be right however, at least I can be consistent.

Andconsistent with myself and consistent with my colleagues as well and follow the road that I've gone down until directed otherwise.” [22] Accordingly, I am therefore mindful of my rulings in R. v. Kvlividze reported [2009] O.J. No. 2540, R. v. Proo reported 2011ONCJ 379 , [2011] O.J. No. 3343, and R. v. Rudolph released August 30, 2011. I am also mindful of the recently releaseddecision of Code J. in the Superior Court of Ontario on November 16, 2011 cites as R. v. Lahiry; R. v. Carreira; R. v. Davidson; R. v.Shelson, O.N.S.C. 6780, hereinafter referred to as R. v.

Lahiry et al for brevity purposes. [23] I attribute the global period of 15 months, 18 days as follows: [24] From June 18, 2010 to August 12, 2010, a period of 56 days, I attribute to be neutral as part of the intake period during whichtime a bail hearing was completed, counsel was retained and initial disclosure was provided. [25] The period from August 12, 2010 to September 30, 2010, causes me greater concern. I find the Defence could have madeefforts to move the matter along in a quicker pace. Defence could have attempted to set a Judicial Pre-Trial sooner to identify thedisclosure problem.

Yet, Crown didn’t appear to be pursuing the outstanding disclosure with any haste either. The allegation is amolestation of a cab passenger by the driver. A DVD tape of the interior of the cab may be most revealing. In fact, it may determine thecourse of action to be considered. [26] While initial paper disclosure was available, it was still being provided on September 2, 2010, some 2½ months later.

Crowncounsel states on September 2, 2010; page 4, line 10: “This matter does date four appearances now and nothing’s been done on the matter, nothing.” [27] I’m not sure if Crown’s remarks are focused on defence or whether they equally apply to the Crown as it relates to provision ofDVD disclosure – perhaps both. [28] As I stated in Proo at paragraph 16: [16] While it may be said that pre-trials and trial dates can be set without full disclosure and intervening dates can be set tomonitor disclosure issues, it may also be said that no meaningful discussion can ensue nor can realistic trial time estimates be determinedwithout first observing relevant and critical disclosure. [29] I also referred to Justice Trotter in R. v.

Farry, [2010] O.J. No. 1977 (S.C.J.) at paragraphs 11, 12 and 13 where hereferred to delayed disclosure of a DVD as follows: “11 Before addressing the issue of the appropriate order, I wish to point out that I do share the motion judge’s view about the delay

involved in the disclosure of the DVD. This type of delay, which is caused by the police, is a common occurrence in the Ontario Court of Justice. In our digital world, in which data is so easily shared, there is no good reason why a copy cannot be produced in a very short period of time. In this case, it should have been available by the first appearance date (which was over a month following the arrest). Meaningless appearances are routinely made in the Ontario Court of Justice while everyone waits for the police to make copies of what transpired in the breathalyzer room.

These needless appearances clog the already busy courtrooms in this province. This is unacceptable. 12 While I recognize that it is not always appropriate to wait for every last piece of disclosure to be made before setting a trial date, a recording of what takes place in the breathalyzer room can be of great value, to both the Crown and the defence. When this type of evidence is available for viewing, informed decisions may be made about whether the case will proceed to a trial on the merits, or whether it might be resolved by way of a plea or withdrawal.

It is important that this evidence be available at the earliest opportunity. 13 Therefore, while I have decided that the motion judge's reasons were insufficient, he was right to isolate this aspect of the case for consideration. In my view, delay caused for these reasons should be afforded greater weight in the s. 11(

b) calculus: see Regina v. Brown , [2005] O.J. No. 2395 (C.J.) , at para. 52 ; see also R. v. McNeilly , [2005] O.J. No. 1438 (Ont. S.C.) , per Hill J. at paragraph 72.” [ 30 ] The impact of delayed disclosure was referred to by MacDonnell J. in Brown (supra) at para. 52 as follows: “ 52 In my opinion, a fair balancing of the relevant factors yields only one result: the applicant was not brought to trial within a reasonable time.

In coming to that conclusion, I place particular importance on the failure of the police, whether through either indifference or design, to take the steps in relation to disclosure that were necessary for the matter to proceed. The police effectively froze this case in its tracks for a period of 5 1/2 months.

This is especially significant in a case, such as this, where the applicant did not cause any of the delay and where he suffered specific prejudice by reason of it.” [ 31 ] Justice MacDonnell also offers this comment at paragraphs 33 and 34: “ 33 The investigation underlying the charges before the court was essentially finished on the day on which the applicant was arrested.

By the end of that day all of the police officers involved in this case would have completed their notes describing the circumstances under which they came to be at the applicant's residence, the role that each officer played in the search of that residence, and the circumstances under which the drugs and money were found. Further, the videotape of the applicant's statement was in the possession of the police. The drugs still had to be submitted for analysis, but apart from that virtually everything that the Crown was required to disclose to the defence was in the hands of the police.

The disclosure process simply required the officer-in-charge of the case to make copies of the police notes and the videotape and to forward this material to the Crown. It seems reasonable to infer that this could have been accomplished within a matter of days; it is indisputable that it could have been done prior to February 13, the date of the applicant's first appearance out-of-custody. 34 As it turned out, however, no disclosure was provided on February 13, or on March 19, or on April 2. Some disclosure was provided on April 16, some on May 7, and some on May 28.

Finally, a copy of the videotape was provided on June 18. Crown counsel conceded that he could offer no explanation for why it took almost five and one-half months from the date on which the investigation was over to complete the process of providing disclosure. In particular, he conceded that there was no explanation for the four months and five days of delay from the applicant's first appearance out-of-custody to the completion of the initial disclosure process.

In all the circumstances, the only reasonable inference is that the police were either indifferent to or decided to ignore their obligation to provide disclosure to the applicant.” [ 32 ] In R. v. Maxwell , [2006] O.J. No. 4604 , Lipson J. of this Court, in referring to whether the DVD in a drinking driving case is essential disclosure stated at paragraph 21: “ 21 It seems to me that if this issue was ever controversial, the time has long passed when it should continue to be so. There will be exceptionally few cases where the booking-breath room DVD does not constitute essential disclosure.

In most contested drinking and driving cases, either Crown or defence plays the DVD during the trial. Defence counsel and their clients require timely disclosure of the DVD in order to make informed choices as to how best to proceed. What is shown on the DVD can have a crucial influence on the choice of plea or trial strategy. What is displayed on the DVD is always relevant to a myriad of Charter and non- Charter issues. Another important aspect to be considered is that of trial management. One of the primary functions of the judicial pre-trial is to properly assess the time requirements of any given case.

The pre-trial judge and counsel factor the playing of the DVD into this estimate. Defence and Crown need to review the DVD in order to participate meaningfully in a judicial pre-trial.” [ 33 ] In R. v. Lahiry et al (supra) , all four cases appealed, dealt with drinking driving offences. [ 34 ] In R. v. Lahiry et al (supra) , Code J. stated at paragraph 103 as follows: “[103] The difficulty with this analysis is that it should not have taken the Crown four months to make initial disclosure in this kind of case.

Errors were made in sending the Information to the College Park Court, in not having the Crown Brief in court, in not having the vetting completed in a timely way, and in not having the booking and breath room videos available. The Crown concedes that half of this initial four month and seven day period of delay, from September 8, 2008 when the charges were laid until January 15, 2009 when initial disclosure was finally made, should be allocated to actions of the Crown. The other half should be allocated to the normal intake needs of this kind of case.

I agree with this concession.” [ 35 ] It would appear Code J. is not comfortable with the delay in providing disclosure. Indeed, initial disclosure was provided to Mr. Mahmood a little over one month after being charged and does not attract my concern. The area of discomfort relates to the DVD. [ 36 ] We are not dealing with a drinking and driving case. However, the same considerations apply with respect to the in-cab video. This video could determine whether the trial proceeds or whether the matter is resolved.

[37] In R. v. Lahiry et al (supra), particularly in the Davidson appeal commencing at paragraph 92 and concluding at paragraph 131,reference is made to defence counsel’s refusal to set a trial date as disclosure had not yet been completed. The outstanding disclosurewas a “revised” toxicology report which defence conceded was not essential to any fundamental decisions such as plea or election, priorto setting a trial date. The revised report would only serve to have some impact on the length of the trial.

Code J. stated counsel waswrong in refusing to set a date until he had received the revised toxicology report which Code J. classified at paragraph 113 as: “… this minor piece of outstanding disclosure…” [38] He stated at paragraph 114 as follows: “Sophisticated forensic testing and ongoing investigative steps often take time and they cannot be allowed to hold the process hostage bypreventing the setting of timely trial dates.” [39] An in-cab DVD does not require “sophisticated forensic testing”. No further investigative steps are required.

In relation to anallegation of sexual assault in a cab by the driver in relation to the passenger, such a DVD is indeed, very material and in my view, is amajor piece of outstanding disclosure. [40] Mr. Justice Code goes on to say at paragraph 114: “It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay atthese early stages.

This is simply common sense.” [41] While I agree disclosure is an ongoing process, there is a difference between additional disclosure and fundamentallymeaningful and critical disclosure of a weighty nature that can crucially impact on whether the matter will proceed to trial or otherwiseresolve in some fashion. It may also impact on how much preparation time is required by counsel, which cannot be ascertained withouthaving the benefit of important disclosure. [42] Indeed, an in-car video is ready the day it is activated. In this technological age, it doesn’t take rocket science to make a copyof a DVD.

There is no explained reason why it cannot be available with initial disclosure. It should not take months to find out that thevideo sought, commented on and referred to at the Judicial Pre-Trial held on November 2, 2010 and referred to on the Trial DateAssignment Sheet as well, does NOT, in fact exist. If it did, it is critical disclosure. Had an appropriate inquiry been made in a timelyfashion, this matter would likely have moved along at a much quicker pace. [43] Unlike the revised toxicologist report in R. v. Lahiry et al (supra) or the medical report in R. v.

Kovacs-Tatar (2004), (ON CA), 192 C.C.C. (3d) 91, I find that had an in-car video existed, it should have been disclosed more efficiently as Iclassify such disclosure to be of essential importance and real significance. I do not attribute any misunderstanding to one party. BothCrown and Defence counsel shared the view that a “video” of surveillance was outstanding. Notwithstanding the disclosure of a disc ofstill images, pursuit of a video of surveillance continued, even after the trial date was set on November 2, 2010 only to ascertain threeappearances later on February 17, 2011 that no video DVD existed.

At the Judicial Pre-Trial on November 2, 2011, reference is made toan outstanding video and that stills had already been received.

The transcript on November 2, 2010 confirms counsel’s agreement to seta trial date, notwithstanding the outstanding video disclosure and to return on intervening date, much like Justice Code’srecommendation. [44] Accordingly, since I am concerned about the delay in providing the DVD and since I am equally concerned with the efforts tomove the matter along by Defence, I will attribute half the 49 day period from August 12 to September 30, 2010 to the Crown being 3½weeks and the other half being 3½ weeks to Defence. [45] The period from September 30 to October 26, 2010, being 26 days, has traditionally been attributable to institutional delay,being the time required to

schedule and complete a Judicial Pre-Trial. [46] In R. v. Khan (2011), 2011 ONCA 173 , 270 C.C.C. (3d) 1, Madame Justice Karakatsanis in the Ontario Court ofAppeal (as she then was), held at paragraph 55, the time period leading up to the judicial pre-trial and set date is characterized “as neutraldelay attributable to the intake and the inherent requirements of the case.” This was followed in R. v. Lahiry et al (supra). However, itshould be noted that the characterization of this time period in Khan was specific to the circumstances of that case.

It involvedproceedings subsequent to a Preliminary Hearing involving a “much slower mega-project prosecution” (see paragraph 48 of Khan)wherein Khan had to determine whether the wiretap authorization would be challenged and accordingly he was remanded, from time totime, with the larger group. Justice Karakatsanis states at paragraph 46: “As noted in Morin at p. 793, where a preliminary hearing is required, there will be additional intake periods with further pre-trialmeetings and added court dates.

An additional period for inherent time requirements must be allowed for at this second stage.” [47] I agree that given the inherent nature of Khan, it was reasonable to characterize the time for arranging and completing a judicialpre-trial as neutral delay and part of the inherent time requirements. That is not the case at bar. I prefer to follow the Ontario Court ofAppeal in R. v. Chatwell (1998), (ON CA), 38 O.R. (3d) 32; R. v. C.R.G. (2005), (ON CA), O.J.No. 3764; (2005) 77 O.R. (3d) 308; R. v. Cranston (2008), O.N.C.A. 751. I attribute the time required to

schedule and complete aJudicial Pre-Trial from September 30 to October 26, 2010, being 26 days as institutional delay. This period enlarges the delay which isalready just slightly over the Morin guidelines even without consideration of these 26 days. Accordingly, allocation of this 26 day perioddoes not significantly impact on the overall calculation, particular to this case. [48] The period from October 26, 2010 to November 2, 2010 is 7 days. It appears the issue of whether there is video DVD was stillnot clarified at the Judicial Pre-Trial on October 26, 2010.

I continue to fail to understand why this information was still unknown to theCrown about 4½ months after the arrest date nor was anything done to clarify the situation since the written disclosure request on August12, 2010. I attribute this delay of 7 days to the Crown.

[ 49 ] From November 2, 2010 to October 6, 2011, a period of 11 months, 4 days elapses. This has traditionally been attributable to institutional delay from the set date to the trial date. [ 50 ] In R. v. Lahiry et al (supra) , Code J. refers to R. v.

Morin (supra) at p. 18 in relation to institutional delay stating it only “starts to run when the parties are ready for trial but the system cannot accommodate them.” He comments at paragraph 2 as follows: “ The Court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were ready to try the case.” [ 51 ] This is abundantly sensible in a perfect world.

However, where critical disclosure of real significance that would allow an accused person to assess how to proceed and allow counsel to assess how much time is required to prepare for trial is not disclosed, it is impossible to conclude readiness for trial. It cannot be overlooked that it is not surprising to find, given the volume of trials and limitation of court space and personnel, that counsel find themselves often acquiescing to the inevitable. [ 52 ] In Morin , Sopinka J. allocated about one month as time for counsel to prepare. In R. v.

Lahiry et al (supra) , Code J. referred to varying periods for preparation but seemed to adopt a period ranging from one month to one month and twenty-four days suggesting this period be allocated as inherent time requirements. [ 53 ] The charges before this Court are Sexual Assault and Forcible Confinement. They arise out of an allegation against the accused, a taxi driver in relation to the complainant, a passenger. The matter is set for one day of trial. Any Charter issues have now been addressed in this Application.

The trial date assignment sheet filed at Tab 4 of the Applicant’s Factum reveals there are no other Charter applications or other motions or voir dires. It relates admissions have been made as to date, time, jurisdiction and identity. No interpreters are required. There is no issue as to admissibility of the “video”. It would appear the trial is uncomplicated and likely involves primary evidence of the complainant, a security person and possibly the accused. It does not appear there is any complexity to the matter.

I find it is unjustifiable and improbable that counsel with any level of experience would require any lengthy period of time to prepare for trial beyond three weeks for an uncomplicated

summary conviction matter where the Crown’s case is likely most dependent on the evidence of one witness, namely, the complainant. [ 54 ] Indeed, there are many occasions in this Courthouse and others, when Crown counsel is called upon to assist overburdened trial courts by transferring a trial in which case they usually proceed to trial within less than an hour. Perhaps this speaks to the competence and expertise of the Crown staff. Perhaps this speaks to the reality that straight-forward cases, which may highlight credibility issues, do not require extensive preparation by experienced counsel. [ 55 ] In

summary, I allocate the total time of 475 days as follows: Inherent time requirements or intake - 56 days Actions of the Crown - 31.5 days Actions of Accused - 24.5 days Institutional Delay - 317 days [ 56 ] The combination of time allocated to actions of the Crown and to institutional delay amounts to 348.5 days or roughly 11 months 18.5 days. This calculation takes into account deduction of three weeks for preparation time which I have attributed to inherent time requirements. It should be noted in R. v.

Lahiry et al (supra) , Justice Code found each of the four cases appealed to have less than 10 months of institutional delay thereby bringing each case within the Morin guidelines. While there is no mathematical formula or limitation period, my assessment of the causes for delay attribute 11 months 18.5 days to actions of the Crown and institutional delay, thereby exceeding the Morin guidelines. [ 57 ] Mr.

Mahmood filed an Affidavit in support of his Application, sworn September 21, 2011, and was examined and cross- examined on it. [ 58 ] He related he was unable to keep his job at Canlan Sports when the charges arose. He continued driving cab. He stated his cab licence was not renewed this past March 2010 because of the outstanding charges. He is now employed in construction at reduced income. [ 59 ] He talks of stress since these charges arose. He has trouble concentrating and no longer engages in recreational activity. Seeing a psychiatrist started the same month he was charged.

It strikes me much of this prejudice arises from the charges themselves. However, I cannot overlook his cab licence problem arose this past spring, about nine months or so after he was charged. Furthermore, the medication prescribed in June 2010 appears to be increasing in dosage in March and April, 2011. The stress is not subsiding with the passage of time. [ 60 ] There is no clear evidence the Applicant did not want an early trial. He had a bail hearing the day after he was arrested. He had retained counsel by his next court appearance. Filed or delayed delivery of disclosure was not his fault.

The first available trial date was over 11 months later. [ 61 ] While it would appear the stress and anxiety arise in relation to being charged, I am cognizant of and consider the remarks of Nordheimer J. in R. v. Osei , [2007] O.J. No. 768 at para. 32 where he states: “ In the end result, it is clear to me that Mr. Osei has suffered prejudice arising from the prosecution of these charges and that that prejudice has been exacerbated from the failure of this matter to proceed expeditiously to trial.” [ 62 ] In R. v. Brown, [2005] O.J.

No. 2395 , MacDonnell J. (as he then was) in the Ontario Court of Justice stated:

“I recognize that there is a distinction between prejudice caused by the fact of being charged and prejudice caused by delay after beingcharged. The stigmatization of which the applicant complains is the product of being charged, and would have occurred even if the trialhad been conducted expeditiously. Accordingly, it is not “prejudice” for the purposes of s. 11(b). However, the fact that a negativeconsequence arises from being charged rather than from delay does not necessarily make it irrelevant for s. 11(

b) purposes. The stressand anxiety that flow from stigmatization, for example, can create an ongoing burden, and the longer that the burden must be borne, thegreater 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.” [63] Prejudice can be inferred from the length of the delay. Once again, referring to Mr. Justice Sopinka in R. v. Morin(supra) at paragraph 61: “The longer the delay the more likely that such an inference will be drawn.” [64] This was supported by the Supreme Court of Canada in R. v. Godin (2009), S.C.C. 26. Mr.

Justice Cromwell stated atparagraph 34: “It was reasonable, in my view, to infer as the trial judge did that the prolonged exposure to criminal proceedings resulting from thedelay gave rise to some prejudice.” [65] In R. v. W. (B) (2000), (ON CA), 145 C.C.C. (3d) 498, [2000] O.J. No. 2186 (Ont. C.A.), RosenbergJ.A. said it was an error to not give “appropriate weight” to inferred prejudice. [66] Prejudice generally cannot be inferred from institutional delays that are within the Morin guidelines as was the situationin each of the four cases dealt with by Justice Code in R. v. Lahiry et al (supra).

Here the guidelines were exceeded. [67] There are cases where the Courts have found institutional and Crown delay may collectively be unacceptable even in theabsence of any actual prejudice. In R. v. MacPhee, [2010] O.J. No. 3433, Barnes J. had this to say at para. 48: In the result, I conclude that even in the absence of any actual prejudice, an institutional delay of 11 months and 25 days to bring a simpleone day trial to trial in the Ontario Provincial Court is unreasonable.

When the 13 days of delay attributed to the Crown is included, theresulting institutional and Crown delay of 12 months and 8 days for a simple and uncomplicated case, such as this one, is simplyunacceptable.” [68] I have found the delay attributable to the Crown together with institutional delay to total collectively 11 months 18.5days. As in MacPhee, I share the view this is simply unacceptable. [69] I repeat what I said in Proo as it related to video tape disclosure. In that case, it was in relation to a drinking drivingoffence.

In this case, it is in relation to a video inside the taxi cab where the offences before the Court are alleged to have occurred. [70] This is what I said in Proo at paragraph 28: [28] I find the videotape disclosure in drinking and driving offences is relevant and necessary to allow for a reasoneddecision to be made as to plea, whether there are Charter issues and how much time is required for trial. Delay of almost five months inproviding this disclosure is not to be condoned.

Not only does it generate the need for repeated requests both by the defence and Crowncounsel, but it also undermines the efficiency of the administration of justice by causing unnecessary additional court appearances whichprejudice the accused and increases the cost to the taxpayer. There is no understandable reason why early disclosure cannot includevideotapes, already in the possession of the police authorities on the date of arrest, in a timely fashion. Almost five months later, withoutexplanation, is not a course which should be tolerated.

If the target of an effective justice system is efficiency, the system needs to bestreamlined so as to avoid unnecessary additional court appearances caused by the absence of relevant disclosure required to enable anaccused person to make reasonable decisions. [71] I have no reason to depart from those sentiments. [72] It is important to balance the interests of the accused against the interests of society in having a trial on the merits. Anallegation of sexual assault is not to be taken lightly. Similarly, an apparent disregard for provision of meaningful and pivotal disclosureis also not to be taken lightly.

On the one hand, as the allegation becomes more serious, so does it become more compelling to ensurethat the societal interest is met of ensuring that the accused faces a trial on its merits. On the other hand, had important disclosure beenprovided in a timely fashion, court time could have been utilized more wisely, appearance could have been reduced and possibly a trialwould not have been necessary at all. This too is an important societal interest. The focus of the Justice on Target programme is toreduce court appearances. Failure to provide critical disclosure, increases appearances.

Most significantly, a trial date would have beenset much sooner with timely disclosure of important information, namely the presence or absence of the video. It appears there were atleast eleven Court appearances before the trial date. While I am not commenting on what number of appearances is satisfactory, I amcommenting that eleven appearances in this case appear unnecessary and could have been reduced with timely disclosure. [73] Crown counsel argues, in the Notice of Response, “the tremendous public interest in prosecuting sexual assault cases andthe societal interest in having a trial on its merits…”.

I do not disagree. However, in light of the importance attached to this type of case,why was it not known in court until February 17, 2011 that the long sought after video disclosure did not, in fact, exist? [74] Crown counsel had been assigned; why is it that Crown counsel had no brief at the Court appearances on December 2,2010 or January 20, 2011 and why was it not determined until February 17, 2011 that the long sought after video disclosure did notexist?

[ 75 ] These are some of the factors I consider in balancing the interests of the accused and the interests of society. Efforts must be made by all parties to diligently move matters along and to devote the appropriate attention that each case requires. [ 76 ] Crown counsel argues that the Applicant “would have known that only still images would be available from the camera inside the Beck taxicab, and was (of all the parties) the person in the best position to know what photos or video would be available.” (See Paragraph 10 of Respondent’s Supplementary Submissions).

I am not persuaded that the Applicant’s own belief overrides the understanding of Crown and Defence counsel, who, for months, believed that a video DVD existed. It was indicated, even past the Judicial Pre-Trial on October 26, 2010, that a video DVD would be sought and disclosed. If anything, that may have caused great concern to an Applicant who had no prior expectation that video surveillance inside the cab existed if he was guilty of the allegations. On the other hand, it may have caused great anxiety if he had done nothing wrong and the proof of such was still not forthcoming after so long a period of time.

Clearly, the quality of such disclosure falls within the classification of meaningful and critical disclosure which, as Justice Code stated in R. v. Lahiry (supra), was “truly material to “critical steps” in the process.” [ 77 ] So I return to my reference to R. v. Bergen . I am comforted that I share Justice Duncan’s view and remain consistent in my analysis. [ 78 ] I find the

Section 11(

b) rights of the Applicant have been infringed. I am further satisfied the only appropriate remedy is a stay of proceedings. Released: December 13, 2011. _________________________________ Signed: “Justice J. M. Grossman”