R. v. Makani, 2011 ONSC 4463

CITATION : R. v. Makani, 2011ONSC 4463 COURT FILE NO.: 10-70000132-0000 11-7000451-000 0 DATE: 201107 25 SUPERIOR COURT OF JUSTICE - ONTARIO RE: HER MAJESTY THE QUEEN AND MAYAVANGWA MAKANI, BEFORE: M.A. Code, J. COUNSEL: Michael Malleson , Counsel, for the Crown Adetayo Akinyemi , Counsel, for the Applicant HEARD: July 18 and 19, 2011 ENDORSEMENT Ruling on s. 11(

b) Charter Motion A. OVERVIEW [ 1 ] The accused is charged with 6 counts of fraud relating to monies allegedly misappropriated from client accounts at his employer, I.F.D.S., which is in the business of processing mutual fund transactions. [ 2 ] The trial is proceeding before me, without a jury, and the accused has brought one pre-trial Motion alleging a violation of his s. 11(

b) Charter right to trial within a reasonable time. [ 3 ] Due to the need to expedite the case, and not contribute to any further delay, I dismissed the Motion at the end of argument with reasons to follow. These are my reasons. [ 4 ] The constitutional purpose and structure for analysis of s. 11(

b) Motions is well-known and is set out at some length in a recent judgment I delivered styled R. v. Nadia Richards 2010 ONSC 6202 . I adopt the various statements in that judgment concerning the s. 11(

b) case law and will not repeat them. [ 5 ] The four factors to be balanced on a s. 11(

b) Motion are: the length of the delay; waiver of time periods; reasons for delay; and prejudice to s. 11(

b) interests. [ 6 ] I will analyze each of these four factors in turn and apply them to the facts of this case. The meaning, in law, of each of the four factors is set out in Richards , supra . B. THE OVERALL LENGTH OF DELAY [ 7 ] The Applicant was charged with the present offences, and some further related offences, on February 21, 2008. His trial commenced before me on July 18, 2011. The total delay is therefore three years and five months, or forty-one months. The parties agree that this delay is sufficiently long to “trigger” further inquiry into its reasonableness, within the meaning of this first s. 11(

b) factor. C. WAIVER OF TIME PERIODS [ 8 ] The only express waiver of s. 11(

b) rights in this case was on August 20, 2008 when the Applicant’s first lawyer, Mr. G. Goldman, stated that “this is a matter that’s going to be resolved … can I have until October 1 st or is that too long? … If I haven’t specifically waived delay, I am now”. On this basis, the further adjournment was granted, at a point in time when the case had already been remanded in the Ontario Court of Justice for a period of six months, without ever setting a date for trial or preliminary inquiry. As a result, forty-two days should be deducted from the overall delay due to an express waiver of s. 11(

b) for this period. The Crown does not rely on any implied waivers. [ 9 ] The overall period of delay in issue is, therefore, about 39-1/2 months. D. REASONS FOR DELAY [ 10 ] Many of the periods of delay in this case are not in dispute, in terms of the reasons for the delay and the weight that attaches to that period of delay. In the chronology below, I will therefore focus more on those periods that are in dispute: • February 21, 2008 to April 9, 2008.

The parties agree that this initial 1-1/2 months was neutral intake as the parties both used this time to obtain and meet bail, retain counsel, provide initial disclosure, review that disclosure and make a request for further disclosure. These are all traditional neutral intake purposes that are part of the inherent time requirements of the case.

• April 9, 2008 to June 4, 2008. This further two month period was due to defence counsel asking for two adjournments toawait the further disclosure that he had requested. It was provided on June 4, 2008 in the form of four binders. The defence seeks tocharacterize this period as Crown delay due to a failure to make timely disclosure. The Crown submits it is reasonable intake in arelatively large and complex fraud involving six separate complainants and over $300,000 in missing monies from their client accounts. I agree with the Crown.

There is no suggestion on the record that defence counsel thought the Crown was unreasonably delayingdisclosure. Furthermore, no evidence has been put before me on the s. 11(

b) Motion as to the exact nature of the further disclosurerequested, whether it was peripheral or central, and whether it was the kind of missing disclosure that would reasonably prevent thedefence from proceeding to set dates for pre-trials. I am therefore satisfied that the entire 3-1/2 months, from February 21 to June 4,2008, is reasonable intake and part of the inherent time requirements. It is accorded neutral weight. See: R. v. Cranston, (2008), 2008ONCA 751 , 244 O.A.C. 328 at paras. 45-6 (C.A.) and my reasons in Richards, supra at paras. 15, 18 and 22. • June 4 to November 5, 2008.

The parties agree that the first month of this period is neutral intake as the defence sought amonth to review the further disclosure and to

schedule a Crown pre-trial. The parties also agree that of the remaining four months, therewas a forty-two day waiver (as already set out above) and that the rest was defence delay. Defence counsel repeatedly sought delays toeither re-schedule a pre-trial he had missed, to review the Crown’s pre-trial notes as his own notes were not good, and to pursue anegotiated resolution to the case. Accordingly, none of this five month period is unreasonable or weighs against the Crown. • November 5, 2008 to January 14, 2009.

The parties agree that this important three month period of delay is due to anumber of causes: first, the Applicant discharged his first counsel (Mr. Goldman); second, he needed time to retain new counsel (Mr.Akinyemi); third, he needed time to review a denial of bail on an entirely new set of fraud charges, committed against his new employerPorter Airlines, and on the original I.F.D.S. charges where bail had been revoked pursuant to s. 524; and fourth, he decided to awaitdisclosure on the new charges before proceeding further with the original charges.

There was some initial disagreement over how tocharacterize these four reasons for delay, but both counsel eventually agreed that these were neutral intake delays. Indeed, it could beargued that some of this delay was caused by the defence. The Applicant expressly agreed to keep the original charges and the newunrelated charges together, in order to await the bail review, to await disclosure on the new charges and to await his delayed retainer ofhis new counsel, Mr. Akinyemi. None of this delay is unreasonable and none of it weighs against the Crown. • January 14 to April 2, 2009.

The parties agree that this three month period is all neutral intake. It was taken up by anumber of adjournments due to the fact that new counsel had just been retained and gone on the record, he had apparently been briefedon the new Porter Airline charges but not on the original I.F.D.S. charges, the two sets of charges were eventually separated, and newpre-trials with the Crown had to be scheduled as the earlier resolution discussions had been conducted by Mr. Goldman and not by Mr.Akinyemi.

It is clear from the record that new counsel was not ready to set a date until April 2, 2009 so this period is all part of theinherent time requirements of the case. • April 2, 2009 to January 29, 2010. This period of almost ten months of delay is the subject of some disagreement. OnApril 2 the Ontario Court of Justice set what is described as “the first available six hours” for a preliminary inquiry. Both counsel hadagreed that only two witnesses were required at the preliminary inquiry and that it could be completed in less than a full day.

There is noindication on the record as to when defence counsel would be ready to proceed and when he had available dates in his calendar. I inferfrom the entire record that Mr. Akinyemi is a busy counsel and that he would have needed some time to prepare and that his calendarwould not have been immediately available to conduct the preliminary inquiry. Normally, I would characterize four months of thisperiod as neutral or inherent delay, caused by the parties’ need to prepare and make their calendars available, and six months asinstitutional delay.

See: my reasons in Richards, supra at para. 29 and Hill J.’s reasons in R. v. Meisner, [2003] O.J. No. 1948 at paras.36-7. What complicates this analysis is that the defence ultimately waived the preliminary inquiry on January 29, 2010, without hearingfrom or cross-examining any witnesses. No reasons were put on the record as to why the preliminary inquiry was waived at the lastminute, after the passage of ten months of delay. The Crown submits that I should infer that the defence was not ready to proceed.

Thedefence submits that I should infer that there was insufficient time to complete the two witness preliminary hearing. These are bothspeculative inferences. There is little or nothing in the record to support them and I cannot draw either of the suggested inferences. In R.v. Taylor, 2010 ONSC 1632 , [2010] O.J. No. 1086, my colleague Gray J. held that where the preliminary inquiry is waived atthe last minute, and where the record is silent as to the reasons for the waiver, the entire period of delay should be treated as neutral orinherent time requirements.

I agree with Gray J. that it is unfair to treat all of the delay caused by scheduling a preliminary inquiry, thatproves unnecessary, as institutional delay that weighs against the Crown. However, the fact remains that the Ontario Court’s earliestavailable date was ten months away, which indicates a systemic problem. Furthermore, there are many reasons for a last minute waiverof a preliminary inquiry and they appear to have been the subject of at least some discussion between counsel. Neither party chose to putthose reasons on the record.

The fairest way to deal with this issue is to divide the ten month period and allocate five months toinstitutional delay and five months to the neutral or inherent time requirements of the case. [11] This concludes the Ontario Court of Justice history of the proceedings. It can be seen that the case spent almost two years inthe Ontario Court of Justice, from February 21, 2008 to January 29, 2010. Almost all of this delay was caused by the intake periods, bythe inherent requirements of the case, by defence requests for delay and by one defence waiver.

The only period of unreasonable delay,that weighs against the Crown, was the five months of institutional delay in setting a date for a preliminary inquiry that ultimately provedto be unnecessary. [12] In short, there is no possible basis to suggest that the case was in any s. 11(

b) difficulty when it emerged from the OntarioCourt of Justice. Turning then to the history in the Superior Court of Justice, the various periods of delay, and the reasons for them, wereas follows: • January 29 to March 22, 2010. The parties agree that this initial two month period is neutral intake as the Indictment wasfiled in the Superior Court of Justice, there was a first appearance in Assignment Court, and a timely date was set for a judicial pre-trial. • March 22, 2010 to June 21, 2010. This three month period is the subject of some dispute.

During this period, the Court setfour dates for the judicial pre-trial and it is only on the fourth date that it actually proceeded. Unfortunately, both parties contributed tothis unsatisfactory state of affairs. The Crown did not complete is pre-trial form until March 22, 2010, that is, on the very day of the firstjudicial pre-trial, in violation of the Rules. The defence, however, did not file its judicial pre-trial form at all, also in violation of the

Rules. When reminded by the Trial Office, by letter dated April 15, 2010 of his failure to file, Mr. Akinyemi faxed his form to the Trial Office on April 19, 2010, in time for the second judicial pre-trial date which was set for April 22, 2010. However, the fax was not sent to the Crown and there is no proof of service on the Crown, which is again in violation of the Rules. The Crown then misconducted itself by not appearing for the second judicial pre-trial on April 22 and by cancelling the third judicial pre-trial on June 2, 2010. However, there were also further failings by the defence.

The Applicant’s counsel had indicated a clear intention to re-elect trial by judge alone. Trotter J. stated on March 22, 2010, the date of the first judicial pre-trial, that the accused had to attend personally in order to re-elect. This was never done in spite of multiple appearances and opportunities. As a result, when the trial date was finally set on June 21, 2010, it was set as a ten day jury trial, a longer block of time than a judge alone trial would have required.

Finally, the Crown concluded this series of missteps on June 14, 2010 when it was unable to set a trial date until a week later, on June 21, 2010, because the Crown did not know the availability of its witnesses on the proposed trial date. This final one week of delay was important as it resulted in the loss of earlier trial dates.

It can be seen that both parties repeatedly failed in their duties to the Court and to the administration of justice and both parties contributed to the many unjustified delays in this three month period, although the Crown was arguably responsible for more of the delay than the defence. I would apportion the delay between them as follows: two months was caused by the Crown and one month by the defence . I should add that the particular Crown counsel, whose conduct at the four scheduled judicial pre-trial dates has been criticized above, was not Mr. Malleson.

He was only recently assigned to the case and he has conducted himself in a diligent and responsible manner. • June 21, 2010 to March 21, 2011. This nine month period is the subject of some dispute. The Court set the March 21, 2011 trial date on the basis that it was “the earliest date” available for a two week jury trial. The Crown clearly stated that there were earlier dates available for a one week trial. Had the defence carried out its clear commitment to re-elect, to trial by judge alone, an earlier date could likely have been set.

Conversely, had the Crown been ready to set a date on June 14, 2010, with its witnesses’ available dates in hand, the record indicates that December dates in 2010 could have been set for a two week trial. Once again, both parties bear some responsibility for the resulting delays. Finally, defence counsel’s earliest availability for trial was, once again, not noted on the record except that on the June 14, 2010 appearance, after the judicial pre-trial was finally held, Mr. Akinyemi stated on the record: “I have dates in December”.

He also stated that he was anxious to proceed with an early trial date due to his client’s restrictive bail conditions. In all these circumstances, I would divide this nine month period of delay as follows: the first five months, until mid- December, should be treated as neutral or inherent time requirements for the parties to prepare for trial and make their calendars available; the next four months, from mid-December until March 21, 2011, should be treated as institutional or systemic delay that weighs against the Crown . As I understood Mr. Akinyemi’s submissions on the s.11(

b) Motion, he did not dispute, in the end, that the only period of systemic delay relating to this first trial date was the four months from December 2010 to March 2011. • March 21, 2011 to July 18, 2011. This final four months of delay is the subject of considerable dispute. The defence submits that it is all systemic delay. The Crown submits that it is all defence delay. Once again, I am satisfied that there is shared responsibility for this period of delay. What happened is as follows: the defence had not given notice of its intention to bring a s. 11(

b) Motion at the judicial pre-trial before Archibald J., held on June 14, 2010, nor when setting a trial date before Bellamy J. on June 21, 2010; it is apparent, however, that the defence was at least considering a s.11(

b) Motion as early as the fall of 2010 because many of the Ontario Court of Justice remand transcripts indicate that they were ordered on September 24, 2010; at some point, a firm intention was formed to bring the s. 11(

b) Motion; in spite of this, the defence completely failed to comply with Rule 28.04(11) as no written notice was filed of this significant change in position since the time of the judicial pre-trial; the defence Notice of Motion and Application Record were also not filed in the Trial Office until March 7, 2011, that is, fourteen days prior to the trial date; this is a further violation of the Rules, in this case Rule 27.04 which requires thirty days notice; furthermore, there is no proof of service on the Crown but simply a note on the file by someone indicating “copy left at Crown’s office”; the Crown acknowledges receiving the Notice of Motion and Application Record on March 10, 2011 and discovering that there were four missing transcripts, some of which were important to the s. 11(

b) Motion; there were also photocopies of transcripts in the Application Record that were incomplete or were of poor quality; the Crown responsibly proceeded to order the missing transcripts from the Court Reporters and asked the defence for better copies and complete copies of the transcripts that had been provided; on Friday, March 18, 2011, three days before trial, the Crown received two of the four missing transcripts and received the missing or illegible pages of transcripts; when the case was called before Kiteley J. on March 21, 2011, the Crown was still missing two of the transcripts and had not been able to file its Response to the Motion; the Crown submitted to Kiteley J. that the case had “less priority”, because of the late and incomplete filing of the Applicant’s. s. 11(

b) Motion and because of the Crown’s inability to “respond properly”; Kiteley J. appeared to agree with the Crown’s assessment, stating that a trial judge may simply “refuse to entertain the 11(b)”; the Crown asked Kiteley J. to hold the case down and submitted that, if a Court became available in “a day or two from now”, it would then “make sense to still run the 11(b)”; Kiteley J. and all parties agreed to a further judicial pre-trial before her in order to discuss both “resolution” and the status of the s. 11(

b) Motion; given that the case had now been given “less priority”, there was no trial judge available to hear it on March 21, 2011; over the next two days, the parties appeared before Croll J. in Practice Court; the third missing transcript for the s. 11(

b) Motion was received on March 22, 2011; the Crown made its position clear before Croll J., that the trial on the merits was ready to proceed and all the Crown’s witnesses were present, but that the s. 11(

b) Motion should be held down until the end of the trial and, presumably, at that time the Crown would have been in a position to properly respond; the defence opposed this proposal but, in any event, no trial judge was available to hear the case; Croll J. and the Crown made significant efforts to give the case priority, when it was apparent that an adjournment was inevitable, by making early trial dates available; dates were offered throughout April and in early July but defence counsel was not available; the earliest date that the defence was available for a two week trial was July 18, 2011 and that date was set; even during the week of July 18, defence counsel has had commitments to other clients, on three separate days, which I have accommodated; the defence finally carried out its commitment to re-elect trial by judge alone and Croll J. took the re-election on March 23, 2011; however, defence counsel continued to insist that the case would take two weeks, although the Crown estimated that it was a much shorter three to five day trial; the Crown completed its Response to the s. 11(

b) Motion on July 8, 2011 and served the defence on July 11, 2011, a week before the new trial date; the Crown Respondent’s Record contained three of the four missing transcripts, two of which have proved to be of some real significance; the fourth missing transcript was filed before me by defence counsel on the morning of July 18, 2011, as the s. 11(

b) Motion commenced; the Court Reporter’s Certificate on that transcript is dated September 15, 2010, indicating that defence counsel had been in possession of it for many months, prior to filing the defence Application Record on March 7, 2011; no explanation has been given for the very late filing of this transcript and it was a transcript that was important to a full understanding of the s. 11(

b) history. In all these circumstances, I am satisfied that this final four months of delay was caused both by defence counsel’s repeated failures to comply with the Court’s Rules and by systemic congestion in the Superior Court. I would apportion the delay evenly between these two causes,

assigning two months to the defence and two months to systemic delay which, therefore, weighs against the Crown. This Court mustoperate on the basis of a certain amount of over-booking on trial dates, given that a number of cases invariably do not proceed to trial ontheir trial date due to last minute guilty pleas, withdrawals or adjournments. As a result, the trial list is prioritized, both on Friday and onMonday, one of the factors being a determination as to which cases are most likely to proceed. The Crown, with Kiteley J.’sconcurrence, gave this case a lower priority, quite properly, because the s. 11(

b) Motion was not ready to proceed on March 21, 2011. As a result, other cases were given higher priority and were assigned to the available trial judges. The defence must take some of theresponsibility for the failure of the case to proceed on March 21, 2011. At the same time, the Record reveals institutional congestion inthe Court and so some of the responsibility for this period of delay is systemic and must be borne by the Crown. However, theadditional four months of delay was short, the Court gave the case priority, and new trial dates were offered within an even shorterperiod of time.

This mitigates the systemic problem and complies with a long line of appellate authority to the effect that cases that donot proceed to trial on their first trial date must be expedited and given “priority” in the system. See: my reasons in Richards, supra atparas. 41, 59-70, and 73. I should make it clear, in this regard, that I do not fault or hold Mr. Akinyemi responsible for not beingavailable on the very early trial dates offered by the Court in April, 2011. He is a busy practitioner and he made himself available in areasonable time, that is, in mid-July. This is what the s. 11(

b) case law requires. See: R. v. Godin, 2009 SCC 26 , [2009] 2S.C.R. 3 at para. 23. [13] The above history of the various periods of delay in the Superior Court of Justice results in a less than satisfactory pictureemerging from this Court. The case has been before the Court from the committal on January 29, 2010 until the trial proceeded on July18, 2011. This period of almost eighteen months is not a model of expedition.

However, on analysis, I find that it is made up of sevenmonths of neutral or inherent time requirements, three months of delay caused by the defence, two months of delay caused by the Crownand six months of systemic delay. In other words, there was eight months of unjustified delay that weighs against the Crown. [14] Of course, the periods of delay in the Ontario Court of Justice and in the Superior Court of Justice must not be examined inisolation. It is the period of unreasonable delay in both courts that matters, examined in the context of the “overall lapse of time” or the“entire period in issue”. See: R. v.

M. (N.N.), (2006) (ON CA), 209 C.C.C. (3d) 436 at para 69 (Ont. C.A.); R. v.Allen (1996), (ON CA), 110 C.C.C. (3d) 331 at 344-6 (Ont. C.A.); R. v. Bennett (1991), (ON CA),64 C.C.C. (3d) 449 at 467 (Ont. C.A.), aff’d. (1992) (SCC), 74 C.C.C. (3d) 384 n. (S.C.C.). [15] In the result, on this third factor concerning “Reasons for Delay”, there was five months of systemic delay in the OntarioCourt, six months of systemic delay in the Superior Court and two months of delay caused by the Crown. In other words, the totalperiod of unjustified delay that weighs against the Crown was thirteen months.

The remaining twenty-eight months of delay was due tothe one defence waiver, actions taken by the defence, and neutral inherent time requirements of the case. I note that both periods ofsystemic delay – five months in the Ontario Court of Justice and six months in the Superior Court of Justice – are well within or belowthe Askov/Morin “guidelines” for this form of delay. See: R. v. Askov (1990), (SCC), 59 C.C.C. (3d) 449 (S.C.C.); R. v.Morin, (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.). E. PREJUDICE [16] Turning to the last factor, namely, prejudice, I must consider both inferred prejudice and actual prejudice.

The above periodsof unjustified delay, totaling thirteen months, are not so long as to give rise to an inference of prejudice. This factor, therefore, dependson evidence of actual prejudice. Furthermore, no persuasive argument has been made concerning prejudice to fair trial interests. Thecase at bar turns substantially on inferences to be drawn from the documentary record. See: R. v. Cranston, supra at para. 63. Therefore, actual prejudice in this case refers to prejudice to liberty and security of the person interests.

In this regard, the Applicantrelies heavily on the effects of restrictive bail conditions on his employment opportunities, his financial well-being, his state of personalanxiety and medical health, and his freedom of movement outside of the country. [17] The evidence in this regard is not convincing. Upon his arrest, the Applicant was immediately released on a consent bail, onterms, including the following: that he surrender his passport; that he not possess financial documents or securities, other than in hisown name; and that he not be employed in the financial industry.

The other conditions were minor. [18] The Applicant had previously worked in the financial industry and I accept Mr. Akinyemi’s submission that the bailconditions prevented his return to that industry, pending resolution of the present charges. Fortunately for the Applicant, he had sent outa number of job applications to other employers, prior to his arrest. He was obviously no longer working for I.F.D.S. by the time he wascharged as he was alleged to have defrauded their clients.

Within about a week of his release on bail, on March 3, 2008, the Applicantwas successful in obtaining one of the jobs that he had previously applied for. It was not in the financial industry but rather was withPorter Airlines. Accordingly, his terms of bail did not prevent him from taking the job and he began work there immediately. Mr.Akinyemi submits that this was a form of under-employment for his client and that he was prejudiced by not being able to work in thefinancial industry.

This strikes me as a tenuous form of prejudice, given the following circumstances: he had consented to this term ofbail; he never sought to have it reviewed in order to alleviate the alleged prejudice; he succeeded in obtaining one of the very jobs that hehad applied for before he was charged; and he was unlikely to get work in the financial industry, in any event, given the nature of thepresent charges. [19] Unfortunately for the Applicant, while working for Porter Airlines during 2008, he proceeded to steal credit card data fromPorter’s customers.

He was charged on October 23, 2008 with a number of counts relating to this criminal activity. At a bail hearing onNovember 5, 2008 he was denied bail on the new Porter Airlines charges and his bail was also revoked, pursuant to s. 524, on the earlierI.F.D.S. charges that are now before me. He brought a bail review and on November 28, 2008, he was released by Forestell J. on bothsets of charges but on very strict terms including the following: a curfew between 9:00 p.m. and 7:00 a.m.; “house arrest”, unless with asurety or while attending George Brown College; and not to be employed at all.

The Applicant pleaded guilty to the Porter Airlinescharges in July, 2009 and was given a suspended sentence and probation. However, the restrictive bail terms imposed by Forestell J.continued because they applied to both the I.F.D.S. charges and the Porter Airlines charges. The Crown consented to some relaxation ofthe bail terms on March 23, 2011, when the first trial date did not proceed.

But they still effectively prevented the Applicant fromworking in the financial industry because the new terms required that he advise any employer of his conviction for fraud on the PorterAirlines charges and that he not possess any financial documents other than in his own name.

[ 20 ] The Applicant never sought to review these terms of bail but they, nevertheless, significantly restricted his liberty interests and impaired his security of the person. He was cross-examined on the s. 11(

b) Motion as to whether the anxiety and stress he suffered in the last three years was caused more by the delays in the original I.F.D.S. charges or by the fact that he was stealing credit card data from his new employer Porter Airlines, was caught and charged, and was eventually convicted. He agreed that the act of committing these crimes against Porter Airlines customers caused stress. He also agreed that he could not separate the multiple causes of stress, nor could he rank which one was more significant. It was all one “global stress” to him.

Indeed, he blames the stress from the original I.F.D.S. charges for causing him to commit the Porter Airlines fraud. He also agreed that there was eventually a good outcome from these events as he decided to change his life and he now feels that he is a good person. He has attended George Brown College, while on bail, and is about to graduate next month from a business administration and marketing program.

He is understandably proud of this important accomplishment as he previously had no education other than a high school diploma. [ 21 ] I am satisfied that the above set of circumstances bring this case squarely within the principle enunciated by Juriansz J.A. in R. v. M. (N.N.) , supra at paras 73 and 81 , on behalf of the Ontario Court of Appeal, where he accorded “little or no weight” to claims of actual prejudice arising from restrictive bail conditions in that case.

There were a number of circumstances that diminished the claim of prejudice in M. (N.N.) , including the following: “The respondent was facing three sets of serious criminal charges and was on bail on the other charges as well as the charges in this case. Any prejudice that the respondent suffered from restrictive bail conditions, in a sense, arose from all the charges he faced .” [Emphasis added.] See also: R. v. Allen , supra at pp. 351-2 (Ont. C.A.); R. v. Cranston , supra at paras. 68-69 . [ 22 ] Mr.

Malleson made a number of reasonably good or at least arguable points that might further diminish the claim of prejudice, for example: the fact that the medical difficulties the Applicant claimed in his testimony were not mentioned in his Affidavit and there are no reports or records to support this medical condition; in addition, there is evidence suggesting that the Applicant was already in financial difficulties, prior to these charges; furthermore, the fact of his conviction for fraud in the Porter Airlines case makes it perhaps unlikely that he would ever obtain employment in the financial industry; and finally, the suggestion is made that the Applicant’s two counsel, at various stages of the proceedings, exhibited conduct that does not indicate a desire to proceed expeditiously (for example, the s. 11(

b) waiver and the adjournments to pursue resolution discussions, the failure to waive the preliminary inquiry in a more expeditious way, the failure to carry out the promised re-election prior to setting a trial date, the perhaps unreasonable insistence that the trial would be longer and more complex and needed more time in the Court’s trial calendar, and the failure to give notice and file the s. 11(

b) Motion in a timely way and in compliance with the Rules). [ 23 ] Although these arguments advanced by the Crown have some force, I need not address them. I am satisfied that this case is like M. (N.N.) and that the prejudice that the Applicant suffered, while on restrictive terms of bail, was due in large measure to the Porter Airlines charges, of which he was guilty.

This significant misconduct, while on bail, is what caused the Applicant to lose his job, to then encounter financial difficulties, and to render further employment impossible, while on bail, because of the new “house arrest” term, all of which combined to cause him stress. It was not delays in the original I.F.D.S. charges that caused any significant prejudice.

The Applicant was working and earning income at a job of his own prior choosing, while he was on bail only on the present I.F.D.S. charges throughout most of 2008, and prior to his arrest and detention on the Porter Airlines charges in October and November, 2008. [ 24 ] In all these circumstances, there is little actual prejudice that can be attributed to delay of the I.F.D.S. charges. F.

BALANCING THE FOUR FACTORS [ 25 ] In balancing the above four factors, the forty-one months of delay in this case has largely been explained by waiver, defence delays and inherent or neutral delays that, in total, account for twenty-eight months of the overall period. The remaining thirteen months of unjustified delay is a combination of Crown actions (causing two months of delay) and systemic or institutional causes (leading to eleven months of delay). The latter systemic delays are well within the Morin/Askov “guidelines”.

Furthermore, the overall period of unjustified delay – thirteen months – is not “a very long and unreasonable delay” or a delay that is “substantially longer than can be justified on any acceptable basis”, such that prejudice can be inferred. See: Askov , supra at pp. 474 and 482-4; Morin , supra at pp. 23-4.

Finally, there is little evidence of actual prejudice caused by delays of the present I.F.D.S. charges, as opposed to prejudice due to other causes. [ 26 ] In all these circumstances, this is not a close case where I might otherwise need to balance the societal interest in a trial on the merits, as submitted by the Crown, at this final stage of s. 11(

b) analysis. [ 27 ] The Applicant’s s. 11(

b) claim of unreasonable delay has not been made out and the Motion was, therefore, dismissed for all these reasons. M.A. Code J. Date: July 25, 2011