Case Name:
R. v. Chrostowski

Between
Her Majesty the Queen, and
Adam Chrostowski and David Lee

[2006] O.J. No. 1306
Court File No. 0630/04

Ontario Superior Court of Justice
M.R. Dambrot J.

Heard: March 27-28, 2006.
Judgment: March 31, 2006.
(63 paras.)

Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — Procedural rights — Trial within a reasonable time — Remedies for denial of rights — Specific remedies — Stay of proceedings — Application by the accused for stay of proceedings based on alleged breach of their right to be tried within reasonable time allowed — Accused were charged with offences relating to a robbery — Thirty-three months from date of arrest to commencement of trial — Applicants played no role in delay — Case not managed reasonably — Canadian Charter of Rights and Freedoms, s. 11(b).

Application by the accused for stay of proceedings based on alleged breach of their right to be tried within reasonable time — Accused were charged with offences relating to a robbery — Thirty-three months from date of arrest to commencement of trial — Applicants were arrested on June 14, 2003 and charged with the offences the next day — Applicants appeared in court on July 31, 2003, August 14, 2003, August 22, 2003 and August 28, 2003 — On each occasion Crown disclosure was not available — On October 28, 2003, November 28, 2003 fixed as date for pre-trial — Substantial disclosure remained outstanding — Significant disclosure remained outstanding in November 28, 2003 — On October 25, 2004, significant new disclosure was made to the applicants — Applicants appeared for first time in Superior Court on the indictment on November 25, 2004 — June 6, 2005 was fixed as date for trial with jury — Mistrial was declared on June 10, 2005 — Trial date eventually set for March 27, 2006 — HELD: Application allowed and stay entered — Applicants caused no delay in the case — Case not managed reasonably — Disclosure was delayed, decision concerning what charges would lie against the accused was delayed, reasonable estimate of time required for preliminary hearing was not made, correspondence from counsel for applicants went unanswered and alibi evidence to be proffered by the defence was not given attention it deserved — Applicants suffered real prejudice — Right of each applicant to be tried within a reasonable time had been violated.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 11(b)

Counsel:

Tom Pittman, for the Crown

Adam Weisberg, for Adam Chrostowski
Mara Greene, for David Lee


 1      M.R. DAMBROT J.:— At the outset of their trial on charges relating to a robbery, Adam Chrostowski and David Lee bring this application for a stay of proceedings based on an alleged breach of their right to be tried within a reasonable time guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. It has taken just over 33 months from the date that the applicants were arrested to reach the commencement of this trial.

 2      The Court of Appeal reminds us in R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.), that s. 11(b) protects both the individual rights of an accused, and the rights of society, including the community's interests in law enforcement, by having those who break the law tried quickly and in having those accused of crime dealt with fairly. In R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.), the Supreme Court of Canada held that the assessment of whether an accused's s. 11(b) right to be tried within a reasonable time has been infringed involves the balancing of the interests that s. 11(b) is designed to protect against "the factors which inevitably lead to delay or are otherwise the cause of delay." This balancing exercise requires a judicial analysis as to whether the delay experienced in a particular case is constitutionally unreasonable.

 3      Four factors are critical to this assessment:

1.

the length of the delay;

2.

any waiver by the accused of time periods;

3.

the reasons for the delay; and

4.

any prejudice to the accused.

 4      I will proceed to consider these factors in turn.

LENGTH OF THE DELAY

 5      The Crown concedes that the delay of 33 months in this case is sufficient to raise an issue as to its reasonableness.

WAIVER

 6      The Crown also concedes that neither applicant has waived any periods of delay in this case.

THE REASONS FOR DELAY

 7      In considering this issue, I am required to consider:

[i] the inherent time requirements of the case;

[ii] the actions of the accused;

[iii] the actions of the Crown;

[iv] institutional delay; and

[v] other reasons for delay.

 8      Before considering these issues directly, I will briefly outline the history of this case.

HISTORY OF THE CASE

From Charge to Mistrial

 9      The applicants were originally charged with eight charges in connection with two robberies. They were ordered to stand trial on two charges (robbery and conspiracy to commit robbery) in connection with one of the robberies. The odyssey from eight charges to two and from two robberies to one has bearing on this application.

 10      The applicants were arrested on June 14, 2003 and charged with these offences in an information sworn the next day. They were brought before a justice of the peace for a judicial interim release hearing on June 15, 2003, but the hearing was adjourned several times at the request of the Crown. Chrostowski was released on a very restrictive recognizance on July 24, 2003. Lee was detained, but was ultimately released on a similarly restrictive recognizance upon a review in the Superior Court on August 28, 2003.

 11      The applicants appeared in court on July 31, 2003, August 14, 2003, August 22, 2003 and August 28, 2003, but on each occasion even initial disclosure of the Crown's case was not available to Mr. Chrostowski. Oddly, some disclosure was made to the two accused who were in custody on July 31, including Mr. Lee, and again on August 28, but copies were not made for the two accused who were not in custody. Some disclosure was made to Chrostowski on September 5, 2003, but additional and important disclosure remained outstanding both in respect of him and of Lee. That disclosure was not available at the further appearances of the applicants on September 10 and September 30, 2003. It is important to note that counsel made repeated requests for disclosure throughout this period.

 12      On September 30, 2003, the applicants appeared in court again. Chrostowski was prepared to set a date for a judicial pre-trial on that date, but not all counsel were present with available dates and the matter was adjourned to October 3, 2003. On that date counsel for both applicants were prepared to set a date for an early pre-trial, but the unavailability of counsel for other accused prevented them from doing so. On October 21, 2003, November 28, 2003 was fixed as the date for a pre-trial. Substantial disclosure remained outstanding, and an interim appearance was scheduled on November 14, 2003 so that the remainder of the disclosure could be made available to them. On November 14, 2003, the outstanding disclosure was still not available.

 13      On November 28, 2003, despite the fact that a substantial amount of significant disclosure remained outstanding, a judicial pre-trial conference was held. At the pre-trial conference, the length of time required for a preliminary hearing was canvassed. In light of the outstanding disclosure, it was difficult for counsel for the applicants to assist the court on this issue. In the circumstances, the Crown's estimate of three weeks was accepted. The first available dates for a three-week hearing were 11 months away, commencing on October 25, 2004 and continuing on a staggered basis until December 8, 2004. Counsel for the applicants had much earlier dates available.

 14      At an appearance in court immediately after the pretrial conference, Crown counsel advised the presiding judge that it appeared that a volume of disclosure material in the possession of the Crown had not been provided to the applicants. She undertook to compile a list of the disclosure material in the possession of the Crown and forward it to each of the counsel for the applicants so that they could indicate what was missing, and the Crown could then provide it to them. The presiding judge then fixed the dates I mentioned for a preliminary hearing, and also fixed an intervening appearance date of January 13, 2004 to monitor the completion of disclosure, to conduct a continuing pre-trial and to ascertain if an earlier date for the preliminary hearing had become available. Crown counsel expressed the hope that if, on January 13, 2004, counsel were able to jointly estimate that less than 15 days were required for the preliminary hearing, an earlier date could be set.

 15      In response to this last comment, counsel for Mr. Chrostowski indicated that he understood that the Crown had not yet decided if it intended to proceed on the charges relating to one of the robberies, and asked Crown counsel to confirm whether or not the Crown was proceeding. Crown counsel replied that she thought that they were proceeding, but acknowledged that whether or not there was sufficient evidence on those counts remained to be seen.

 16      On December 1, 2003, Crown counsel forwarded her disclosure list to the defence. By letter dated December 11, 2003, counsel for Lee replied that she did not have:

1.

case submissions to the Centre of Forensic Sciences dated June 20, 2003 and September 5, 2003;

2.

material from the Centre of Forensic Sciences;

3.

the photographic lineups;

4.

the notes of 31 police officers;

5.

copies of five search warrants; and

6.

certain photographs.

Counsel asked that these items be provided to her before the judicial pre-trial scheduled for January 13, 2004. They were not!

 17      On January 13, 2004, disclosure remained incomplete. A further intervening appearance date of June 29, 2004 was fixed for the completion of disclosure and confirmation of the date for the preliminary hearing.

 18      On June 29, 2004 some, but not all of the outstanding disclosure was made. The matter was adjourned to July 26, 2004 in anticipation that Crown counsel would be assigned to the case. By July 26, Crown counsel had been assigned to the case. She suggested that a focus hearing and a further pre-trial be scheduled for August 30, 2004.

 19      On August 30, 2004, having had the opportunity to review the case, the recently assigned Crown counsel was able to withdraw all of the charges relating to one of the two robberies on the basis that there was no reasonable prospect of conviction. As a result, and also because sufficient disclosure had finally been made to enable counsel to narrow the issues, 11 of the 15 days set aside for the preliminary inquiry were no longer needed. Unfortunately, because of the lateness of this turn of events, earlier dates for the four days still needed for the preliminary hearing were not available. The matter was adjourned to October 25, 2004, for the commencement of the preliminary hearing.

 20      On October 25, 2004, significant new disclosure was made to the applicants. As a result of discussions that were then held between Crown counsel and counsel for the applicants, certain charges were withdrawn, including a charge of using an imitation firearm, and the applicants consented to an order requiring them to stand trial on one charge of robbery and one charge of conspiracy to commit robbery.

 21      On November 25, 2004, the applicants appeared for the first time in the Superior Court on the indictment that is presently before this court. A judicial pre-trial was held that day, and June 6, 2005 was fixed as the date for trial with a jury. Crown counsel estimated that the trial would take three weeks to complete. Although counsel for the applicants were available on earlier dates, June 6, 2005 was the earliest date that the court could make available.

The Aborted Trial

 22      The applicants' trial commenced on June 8, 2005 before Nordheimer J. and a jury. The jury was told that the trial would be completed within three weeks. On June 10, 2005, Crown counsel sought a mistrial on the basis that he wanted to thoroughly investigate alibi evidence that he said he now understood would be proffered by Chrostowski, and on the alternative basis that it now appeared that the trial would take four weeks, which would present a problem for the jurors. In response, the trial judge canvassed the jury and ascertained that if, as seemed likely, the trial were to continue into the first week of July, this would created difficulties for four of the jurors in relation to prior commitments that they had thought would not be interfered with. As a result, Nordheimer J. declared a mistrial.

 23      Although I have been provided with a transcript of the proceedings on June 8, 2005, it is not entirely clear from a reading of it why this trial went off the rails. Since the question whether fault for the mistrial lies at the feet of the Crown has significance in this application, I will do my best to resolve the question of what went wrong. I am assisted in this effort by an affidavit of Reid Rusonik, who was counsel for Chrostowski at the aborted trial, and by certain facts that have been placed before me in oral argument without objection.

 24      After the trial commenced, presumably out of a concern that the time estimate might not be accurate, counsel had a discussion about what evidence would actually be led at the trial, and how long it would take. In this discussion, Crown counsel took the position that a cell phone associated with Mr. Chrostowski (it was actually registered in the name of Mr. Chrostowski's girlfriend) "had to have been used in the robbery," and if Mr. Chrostowski was in possession of it at the time of the robbery, he must have been "the robber who got away."

 25      The problem with this theory, however, was that it depended on evidence of records of a cellular telephone provider that were capable of showing that telephone calls made on the cell phone during the robbery were made from locations physically proximate to the robbery. No disclosure had been made of any such records, no notices under the Evidence Act had been given and no report of an expert witness who could interpret the records had been provided. In fact, on February 23, 2006, Crown counsel wrote to Mr. Rusonik indicating for the first time that he intended to call an unnamed witness at trial to give evidence of the locations of Mr. Chrostowski's cell phone at the time of the calls. By letter dated March 10, 2006, Mr. Rusonik replied that he had no disclosure of any such evidence, and requested that he be provided with it as soon as possible. He received no response, and no disclosure. In the circumstances, it is unthinkable that evidence connecting the cell phone to the robbery could have been led at that trial.

 26      Although Mr. Rusonik knew that the Crown would be unlikely to be permitted to lead this evidence, he disclosed to Crown counsel that, in the worst case scenario, if the cell phone records were somehow permitted to be introduced in evidence, he would call the individuals who had been telephoned at the relevant times who would say that the calls were not received from Mr. Chrostowski.

 27      Mr. Rusonik also told Crown counsel that he was in a position to call Mr. Chrostowski's parents and his girlfriend, who would testify that Mr. Chrostowski was at his parents' home asleep in the basement with his girlfriend at 7:00 a.m. the morning that the robbery took place.

 28      There was also a discussion of certain masks that had been seized by the police, two of which had been found to have the DNA of the applicants on them. Crown counsel had earlier told counsel for the applicants that he would not be leading this evidence at the trial. Counsel for Lee cross-examined certain witnesses at the beginning of the trial on the assumption that this evidence would not be led. Crown counsel also advised counsel, however, in this discussion about the evidence that would be led at trial, that he had reconsidered the matter, and now proposed to call that evidence, despite the fact that the robbers in this case were not alleged to have been masked.

 29      As I have noted, Crown counsel sought a mistrial, first of all, on the basis that he wanted to thoroughly investigate alibi evidence that he said he now understood would be proffered by Chrostowski. With great respect to Crown counsel, this is a submission that, at least on the record before me, is difficult to understand. If he had reference to the actual alibi evidence mentioned by Mr. Rusonik, that is, the evidence of Mr. Chrostowski's parents and his girlfriend, then he was neither entitled to an adjournment to investigate this evidence, nor was he in need of one.

 30      I say that the Crown was not entitled to an adjournment to investigate Mr. Chrostowski's alibi because the Crown had been put on notice of it from the start. Trial counsel was relatively new to the case, and may not have been aware of it, but Mr. Rusonik had made it clear from the outset of this case that Mr. Chrostowski's position was that he was at home asleep in his parents' basement with his girlfriend at the time of the robbery. Indeed, at Mr. Chrostowski's judicial interim release hearing on July 2, 2003, Mr. Rusonik advised the court that he had come to the hearing prepared to lead the alibi evidence of witnesses who would account for his client's whereabouts at 6:45 a.m. on the morning of the robbery, but would not lead it because Crown counsel, had, moments before, changed the time it alleged that the robbery took place from 7:00 a.m. to 6:00 a.m.

 31      I say that the Crown not only was not entitled to an adjournment to investigate this alibi, but was also not in need of one, because the police had interviewed Mr. Chrostowski's parents and girlfriend at the beginning of their investigation.

 32      Crown counsel before me, however, made it clear that the Crown did not want an adjournment to investigate this part of the alibi, but rather to investigate the assertion that individuals who had been telephoned at the relevant times would say that the calls were not received from Mr. Chrostowski. Upon reflection, I can only conclude once again that the Crown was not entitled to an adjournment to investigate this evidence.

 33      I say that the Crown was not entitled to an adjournment to investigate this evidence for several reasons. First, I note that this evidence is not alibi evidence at all. It is not evidence that tends to suggest that the applicant was elsewhere when the crime was committed. Rather, it is evidence that suggests that he was not using a cell phone at the time of the robbery. It may neutralize a piece of Crown evidence suggesting he was at the robbery, but it is not evidence that is capable of suggesting that he was not there. As a result, the Crown was not entitled to notice of this evidence. That is not to say that the Crown might not have been entitled to an adjournment to investigate this evidence. But in this case, such an adjournment would not appear to have been justified. After all, as I have pointed out, the evidence could only be led to neutralize evidence arising from cell phone records, evidence that I have indicated could not likely have been led by the Crown at that trial. Moreover, being in possession of the records, the Crown had been free to investigate the persons who were called at the relevant times before trial. It seems to me that it chose not to take this rather obvious investigative step at its peril. It is telling that despite seeking a mistrial to enable the police to investigate this matter, the Crown has apparently carried out no such investigation to this day.

 34      This brings me to the second basis upon which the Crown sought a mistrial: that the trial was going to take longer than anticipated, and would jeopardize the legitimate interests of the jurors. I note first of all that although a three-week trial was estimated, a fourth week would not have interfered with the jurors' plans. What, then, was seen by the Crown as likely to unduly prolong the trial? Unfortunately, Crown counsel did not say. I do not think that it could have been as a result of the possibility that the defence might lead the alibi evidence, since that possibility had always been known. Nor do I think it could have been because of the possibility that the defence might lead its cell phone evidence. As I have said, it is plain that the defence cell phone evidence would not have been led at the trial, because the evidence it would have been tendered to neutralize could not have been led.

 35      That leaves only two possibilities: the hope that Crown counsel had that he would be given some time to investigate the cell phone evidence, and the additional time needed for the Crown to lead the evidence of DNA on the masks. With respect to the former, I have already concluded that the Crown was not entitled to time to conduct such an investigation. Had he been granted it, it would have been an indulgence. With respect to the DNA evidence, as I have also noted, Crown counsel had not previously intended to lead this evidence. He advised counsel for the applicants only after the trial had commenced that he had reconsidered the matter, and now proposed to call it, knowing that this decision put the ability to complete the trial within the time that he had predicted in jeopardy, potentially necessitating a mistrial. Based on the record before me, I can only conclude that the need for additional time to conclude this trial, assuming that there was such a need, arose entirely as a result of decisions made by the Crown. While I do not second guess the good faith of Crown counsel in making these decisions, the result can only be a finding that the mistrial was occasioned by the conduct of the Crown.

 36      I said at the outset of this part of my reasons that it is not entirely clear from a reading of the transcript why this trial went off the rails, and that I would do my best to resolve the question of what went wrong. I have done so. If there are facts which are not before me that might shed a different light on the Crown's request for a mistrial, as has been hinted at, I can only say that the fact that the applicants bear the onus of persuasion on this application is no answer to the failure of the Crown to put those facts before me. As Sopinka J. stated in R. v. Morin (1992), 71 C.C.C. (3d) 1 at 14 (S.C.C.), borrowing from R. v. Smith (1989), 52 C.C.C. (3d) 97 at 106-7(S.C.C.):

I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it. Although the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case. For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances. (Emphasis added.)

After the Aborted Trial

 37      On June 15, 2005, a new trial date of March 6, 2005 was fixed. The earliest available date was January 30, 2006. Counsel for the applicants were available earlier, but one of them was not available in February 2006. On August 17, 2005, at the request of counsel for Mr. Chrostowski, and on consent, the trial date was adjourned to March 20, 2006, and on that date was further adjourned to March 27, 2006.

ANALYSIS OF THE REASONS FOR DELAY

Inherent Time Requirements of the Case

 38      It is well settled that every criminal case has inherent time requirements that unavoidably cause delay. These time requirements are deemed to be neutral time in the analysis of unreasonable delay.

 39      Crown counsel argues that this was a complex case, initially involving four accused and eight counts, and a significant volume of disclosure, including expert forensic evidence, numerous police and civilian witnesses, and applications for search warrants. Instead of the usual two to three months of intake time in the Ontario Court, because of the volume of disclosure in particular, he submits that this case should attract 4.5 months of intake time in the Ontario Court, as well as one month in the Superior Court. The 4.5 months is meant to account for the time period from the arrest to the judicial pre-trial conference. I do not agree.

 40      While there undoubtedly was a greater than average volume of disclosure to be made in this case, the case was far from being a particularly complex one. Most of the disclosure consisted of commonplace witness notes and statements, photographs and documents. In any event, the proof was in the pudding. The Crown was able to make initial disclosure to two of the accused on July 31, but, unaccountably, not to the other two accused. I see no reason to extend the intake period beyond two months. I agree with the Crown that the intake period in this court was one month. This leaves 30 months to be considered.

Actions of the Accused

 41      Crown counsel concedes that the applicants caused no delay in this case. Indeed, this may be the rare case where the applicants sought to move the case forward every step of the way, even to the extent, for example, of setting a date for a judicial pre-trial conference in the Ontario Court without adequate disclosure, and proceeding with that conference still without adequate disclosure.

Actions of the Crown

 42      Crown counsel began his submissions on this application by reminding me, and properly so, that this case involves serious allegations, and that society has an interest in having them proceed to trial. But given the seriousness of the allegations, one would have expected that the Crown would have managed this case with a degree of attention commensurate with that seriousness. Regrettably, it did not. This case was not managed responsibly as it progressed through the courts. As a result, among other things, disclosure was delayed, a decision concerning what charges should be proceed with was delayed, a responsible estimate of the time required for a preliminary hearing was not made, the hearing of the preliminary hearing was delayed, correspondence from counsel for the applicants went unanswered, cell phone evidence was not prepared in a manner that would have permitted it to be introduced at trial and alibi evidence to be proffered by the defence was not given the attention it deserved. Most of this was not the responsibility of Crown counsel who argued the application before me, and who was candid and fair in addressing these issues. But if the Crown does not take the management of serious cases seriously, then there will inevitably be delays of the sort that took place in this case, and the outcome of applications under s. 11(b) will not necessarily favour the Crown despite the seriousness of the offences. In this case, two aspects of the Crown's failure to manage this case effectively have significance on this motion. I will consider each in turn.

Disclosure

 43      As I have mentioned, the applicants were arrested on June 14, 2003, and their brief preliminary inquiry took place on October 25, 2004, slightly more than 16 months later. Even the 14 month period that is left after subtracting a two month intake period is excessive. It is well beyond the period of institutional delay of between eight and ten months suggested as a guide in Morin. But what is significant about this delay was that it was entirely unnecessary. It is difficult to schedule a fifteen day block of time in the Ontario Court. Fifteen days of court time will ordinarily have to be scheduled at a much more distant point in the future than, for example, four days of court time. In this case, the preliminary hearing was scheduled far in the future because the Crown estimated that 15 days were required. Counsel for the applicants were unable to suggest that a shorter period might be required because they did not have sufficient disclosure to make such an estimate. And they did not have sufficient disclosure because, despite their repeated requests, the Crown simply did not choose to assume control of this serious case and manage it in the way that was so obviously required.

 44      But the fault of the Crown runs still deeper. This was a case that cried out for counsel to be assigned to it at an early opportunity to ensure that it was properly managed. One aspect of proper management is the duty of the Crown to review the charges and ensure that only responsible cases go forward. The Attorney General of Ontario, in published guidelines, has imposed on itself an obligation to proceed only in cases where there is a reasonable prospect of conviction. That determination was not made in this case until August 30, 2004, two months before the date scheduled for the preliminary hearing, after Crown counsel had finally been assigned in July 2003, and had had an opportunity to review the case. She decided that the charges in respect of one of the two robberies could not proceed, and that as a result, only four days were needed for the preliminary hearing. It was then too late to bring the preliminary hearing forward.

 45      As is apparent, had the case been reviewed on an early occasion, a much earlier date for the preliminary hearing could have been set. The need for an early review was no mystery in this case. Counsel for Mr. Chrostowski had put the Crown on notice by November 28, 2003 that even based on inadequate disclosure, some of the charges looked frail, and needed close consideration. Despite his urging, a review of the case did not take place until August 2004, nine months later.

 46      It is clear that the Crown's failure to manage this case, particularly its failure to ensure that timely disclosure was made, and its failure to review the strength of its case in a timely fashion, were the direct causes of considerable delay. It is impossible to know, after the fact, when a four day preliminary inquiry might have been scheduled if four days had been the estimate of the time needed at the outset. I have noted that counsel for the applicants had much earlier dates available even for a fifteen day hearing. No one doubted in argument before me, and I conclude that a four day preliminary inquiry could have been scheduled several months earlier, but for the Crown's inaction.

 47      Counsel for the applicants also suggested that had the Crown completed its forensic testing earlier, and been in a position to disclose the results earlier, even a four day preliminary hearing would not have been necessary, and the withdrawal of the imitation firearm charge and their consent to an order to stand trial could have happened on a much earlier date. This may be so. But the information before me about the agreement to drop additional charges and consent to an order to stand trial is too sketchy, in my view, to reach such a conclusion.

The Mistrial

 48      I have already indicated that based on the material before me, the Crown bears direct responsibility for the mistrial. As a result, the Crown is responsible for the delay from June 8, 2005 to March 27, 2006, a period of more than nine months.

Institutional Delay

 49      Having placed the delay in the commencement of the preliminary hearing and the delay after the mistrial at the feet of the Crown, I am unable to say that any other delay in this case falls outside the administrative guidelines mentioned in Morin.

Other Reasons for Delay

 50      Any other reasons for delay in this case resulted in delay of such brief duration as not to be worthy of mention.

PREJUDICE TO THE ACCUSED

 51      The assessment of the issue of prejudice is a significant aspect of the analysis required under section 11(b). Some factors inherent in the criminal charge process itself, such as the stigma of being charged, the terms of release, and the circumstances of the arrest, are not of direct concern. Rather it is the prejudice flowing from a situation prolonged by delay that is the focus of the prejudice under section 11(b): R. v. Kovacs-Tater (2004), 192 C.C.C. (3d) 91 (Ont.C.A.)

 52      There are two kinds of prejudice an accused may suffer as a result of an unreasonable period of time elapsing before a matter comes to trial. One kind of prejudice relates to prejudice going to the trial process itself. The other relates to the prejudice suffered by the accused while awaiting trial.

 53      The first type of prejudice relates more specifically to matters which may affect the ability of the accused to make full answer and defence, such as the unavailability of an essential witness or the loss of evidence. No allegation of this type of prejudice was made in this case, although some may be inferred.

 54      In addition to the prejudice that can be inferred from the mere fact of an overall delay of 33 months, there is evidence of actual prejudice of the second type in this case in respect of both applicants.

 55      The applicant Lee spent six weeks in custody after his arrest before being released on judicial interim release upon a review of his detention order in this court. He was released on a recognizance with very strict terms, including a requirement that he remain in his residence at all times except when he was in the presence of his sureties or for the purposes of employment, which significantly limited his liberty. The evidence placed before me on this application demonstrates that the applicant has faced many challenges with his business as a result of these release conditions. It was difficult for him to enlist investors to invest in a company owned by a man awaiting trial on charges that, if he were convicted, would inevitably result in imprisonment. It has been difficult for him to promote his business in his target market because of restrictions on his right to travel. He has missed important family events and been unable to have a normal social life. These stresses are particularly significant when they occupy three years in the life of a young person in their early twenties, in the process of establishing their independence.

 56      The applicant Chrostowski was released on a recognizance at his initial release hearing, but the terms of his release, if anything, were stricter than those imposed on Lee. He was required to remain in his place of residence at all times except in the presence of his surety or for the purpose of employment while working on the same premises as his surety. His surety was his father. When he lost his employment with his father's employer, through no fault of his own, he lost the right to work outside of his residence. Although his release order was reviewed three times, and slightly loosened each time, in particular by the addition of an exception to his house arrest condition, albeit a restrictive one, to permit him to pursue his education, the unusually onerous restriction on employment was never meaningfully altered. As a result, Mr. Chrostowski spent a considerable period of time restricted to his residence, unable to obtain employment or enjoy anything resembling a normal life. My comments about the impact of such an order on Mr. Lee apply equally to Mr. Chrostowski.

 57      I agree with Crown counsel that some of the prejudice suffered by the applicants is prejudice that arose simply from the fact of their being charged, and not from the delay. Nonetheless, much of the prejudice does flow from the delay. There has been a real, negative impact on these accused as a direct result of the length of the delay. What is more, repeated efforts by both applicants to secure the Crown's support for a lessening of the prejudice occasioned by the restrictive release orders went either unanswered, or substantially unsupported.

THE BALANCING PROCESS

 58      After analyzing the factors that are critical to the assessment of unreasonable delay, a balancing is required to determine whether or not the delay is in fact unreasonable. The nature of that balancing process has been described in R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 (Ont. C.A.) (leave to appeal refused [2005] S.C.C.A. No. 64) at para 26, as follows:

The determination of what constitutes a "reasonable" time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the "reasonableness" of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pre-trial delay will constitute unreasonable delay for constitutional purposes.

 59      In R. v. Kporwodu (2005), 75 O.R. (3d) 190, the Ontario Court of Appeal stressed, in connection with this balancing exercise, that reasonableness in the context of the protections afforded by section 11(b) of the Charter is not a precise concept, and its determination requires an assessment of the entire time period in light of the explanations for the constituent parts of the delay.

 60      I start this balancing exercise with the simple calculation that, after subtracting the time attributable to intake, there remains thirty months of delay to consider in this case. This significantly exceeds the 14 to 18 month guideline period endorsed in Morin. What is particularly significant in this case is that this long period of delay largely flows from Crown action, and has resulted in real prejudice to the applicants.

 61      I agree with the words of Dawson J. in R. v. Yun, [2005] O.J. No. 1584 (Sup. Ct.) where he said that while we tolerate a degree of institutional delay because it is unavoidable, "delay that is actually caused by the Crown is a matter of particular concern." Here, as in Yun, part of the total delay is directly attributable to delay in disclosure, and much of it is attributable to the actions of the Crown. While it is impossible to quantify exactly how much of the delay in this case is attributable to the Crown's actions as contrasted with institutional delay, it seems to me that at least 15 months can be characterized as being attributable to the Crown.

 62      In my view, in all the circumstances of this case, a thirty month delay in bringing this matter to trial, with 15 of those months being attributable to Crown action and none being attributable to the applicants who made every effort to move this case forward, and with real prejudice being suffered by the applicants, cannot be tolerated. I reach this conclusion with disappointment, given the seriousness of the crime, but I reach it without hesitation. I conclude that the right of each applicant to be tried within a reasonable time has been violated, and that it is incumbent upon me to enter a stay of proceedings in each case.

CONCLUSION

 63      The right of each applicant to be tried within a reasonable time has been violated, and a stay of proceedings is entered.

M.R. DAMBROT J.

QL UPDATE:  20060410
cp/e/qw/qlrxl