Andre's Case — Theft Over $5000 — Dismissed

Between
Her Majesty the Queen, and
Andre S.

[2002] O.J. No. 5621

Ontario Court of Justice
Judge Ross

Charges Stayed:  19 September 2002
(126 paras.)

¶ 3     MR. BELLEHUMEUR:  Good morning, Your Honour.

¶ 4     CLERK OF THE COURT:  Court is in session, please be seated.

¶ 5     MR. BELLEHUMEUR:  Good morning Your Honour, this is Superintendent Brown, he's the Officer— in— Charge.

¶ 6     THE COURT:  Thank you, we have the matter of Andre S.

¶ 7     MR. PENNEY:  Yes Your Honour, good morning Penney, initial C. This is Mr. Andre S.

¶ 8     THE COURT:  Thank you. All right, are you ready to have your client arraigned?

¶ 9     MR. PENNEY:  Yes I am, Your Honour.

¶ 10     THE COURT:  Very well.

¶ 11     MR. PENNEY:  Would Your Honour like him arraigned without plea for the purposes of the motion or with plea?

¶ 12     THE COURT:  I think we will have an arraignment and plea, thank you.

¶ 13     MR. PENNEY:  Mr. Andre S., do you want to stand up, please?

¶ 14     CLERK OF THE COURT:  Andre S., you are charged on or about the 31st day of March, in the year 2001, in the City of Toronto, in the Toronto Region, did steal telecommunications equipment, the property of [your Employer], of a value not exceeding five thousand dollars contrary to the Criminal Code.

¶ 15     You are further charged on or about the 31st day of March, in the year 2001, in the City of Toronto, in the Toronto Region, did steal telecommunications equipment the property of [your Employer], of a value not exceeding five thousand dollars contrary to the Criminal Code.

¶ 16     The Crown, having elected to proceed by summary conviction on December 5th, how do you plead to these charges, guilty or not guilty?

¶ 17     ACCUSED:  Not guilty, Your Honour.

[REPORTER'S NOTE:  At this time, submissions were made.]

¶ 18     THE COURT:  Thank you. Firstly let me thank both Mr. Penney and Mr. Bellehumeur for their submissions. They were cogent and very helpful. I think the path I should follow is to hear first on the application then because there is not a great deal of merit, in the Court's opinion, in embarking on the matter and then this is not an application where evidence must be adduced to substantiate the applicant's claim.

¶ 19     We have the factum prepared by Mr. Penney and we have as well, which is most unusual and very refreshing, Mr. Bellehumeur's factum where he agrees with the applicant's summary of the facts. This is indeed, as I say, refreshing in it's candor. It is to be much appreciated.

¶ 20     Now if we will take then — we will look to the respondent's statements. The record is set out by Mr. Penney, and the Court has had an opportunity to review and study this.

¶ 21     Now it's interesting that Mr. Bellehumeur has set out in paragraph five, the words, "... dilatory approach to the setting of the trial date ..." In his usual understated manner, Mr. Bellehumeur has certainly zeroed right in on the approach. It certainly was dilatory and the record indicates that.

¶ 22     Further, Mr. Bellehumeur states that the failure to provide further disclosure can be a factor but I will hear from Mr. Penney on that.

¶ 23     Mr. Penney do you have, as well as the material you have supplied the Court, do you have any other matters you would care to add?

¶ 24     MR. PENNEY:  Well Your Honour, to complete the factual foundation for the application, I spoke to Mr. Bellehumeur and we would both like, Your Honour, to put on the record on consent certain facts that have occurred since the filing of my materials, and ...

¶ 25     THE COURT:  Just for the record Mr. Bellehumeur — Do you agree?

¶ 26     MR. BELLEHUMEUR:  I agree with that.

¶ 27     THE COURT:  Thank you.

¶ 28     MR. PENNEY:  And those facts Your Honour are simply as follows. That this application material was filed on the 4th of September. I believe Mr. Bellehumeur had been assigned either that day or the day before. I think one of your letters Mr. Bellehumeur indicates ...

¶ 29     MR. BELLEHUMEUR:  The day before.

¶ 30     MR. PENNEY:  He was assigned on September the third, so there really hadn't been any effort to deal with my disclosure request.

¶ 31     Now once Mr. Bellehumeur came onto the case, Your Honour, this case did receive the attention that it deserved and Mr. Bellehumeur treated it with as much time and effort as he could.

¶ 32     However the problem is — the main issue of the disclosure is the video tape, and this is a very important piece of evidence because it is the video tape that allegedly contains the bait property, the setting up of the property, and the taking of the property. However, in this particular case the camera wasn't aligned quite correctly onto the property, so certain inferences had to be drawn and it is very important who else had access to the room and what boxes he had in his hand and where were they coming from. And the problem is that — I need a proper copy of the tape.

¶ 33     Now Mr. Bellehumeur advised me that — there were a number of discussions. I am not going to give them all to Your Honour. But, essentially, Mr. Bellehumeur contacted me and advised me that he would not be in a position to provide this tape prior to today to give me an opportunity to review that tape. So, frankly, we are not in a position to proceed today in any case because I am not ready to make full answer — I'm not in a position to make full answer in defence. So, that is something I am asking Your Honour to consider as well, separately as part of the Section 7 and also as part of 11(b). In my submission, that would be an additional fact.

¶ 34     In my submission, it's particularly aggravating in this case, Your Honour, because even though we have no obligation to move the Crown forward in prosecuting this case, this is a matter where we had an interest in having a trial on the merits and we demonstrated that from the beginning.

¶ 35     Mr. Andre S. retained me the day after he was charged. I contacted the Crown's Office the day afterwards. The most important piece of information, Your Honour, a piece of documentation that assists this application, in my submission, is my letter of January the 16th — that's tab 'L' in the Application Record, Your Honour.

¶ 36     THE COURT:  Yes.

¶ 37     MR. PENNEY:  If I could give Your Honour a little bit of background? Your Honour may not be as familiar with some of counsels' scheduling of dates, but, when we have a date that requires more than a half a day, of course you have to have a judicial pretrial. And I can't get a Crown assigned to a matter until a trial date has been set.

¶ 38     THE COURT:  That's right.

¶ 39     MR. PENNEY:  And this is a case where I believe assigning a Crown would benefit both the defence and the Crown because not all this videotape would need to be played at Court. Most of these issues we could work out.

¶ 40     So, I convinced the trial coordinator to schedule both the judicial pretrial and the trial date on January the 16th or thereabouts — yes, actually it was on January 15th, the day before this letter. So I saw Michael and I said to Michael: "We need a Crown assigned but the Crown won't assign — the Crown's Office won't assign a Crown until a date has been set, so, why don't you set two days and schedule the judicial pretrial? I'll write Mr. Atkinson, the team leader, and see if we can get a Crown assigned and hopefully we can work out some of these issues even before the judicial pretrial." And that wasn't done.

¶ 41     When we went to the judicial pretrial — and that's, of course, that's my letter of January 16th, asking that a Crown be assigned. When I went to the judicial pretrial on February the 22nd, Mr. Butt was there and, of course — and the officer was there as well — Mr. Butt only has, as explained to me, a limited amount of time to review these files in advance and really not much can be done in terms of the video tapes or any other issues for that matter.

¶ 42     So Mr. Butt — I gave another copy of this letter to Mr. Butt, and he said he would do his best about assigning a Crown and that was the last I heard about it, but there were, as you can see from the other letters, there was correspondence back and forth and some telephone calls back and forth as well. The last I heard was on the 22nd of July; I heard from another Crown about the tapes and she said that the Crown had put her onto this and something should be sorted out. But nothing ever was sorted out until Mr. Bellehumeur came onto this case and it got the attention it should have gotten from the beginning.

¶ 43     I think Mr. Bellehumeur would agree with me — in fact, he told me this morning, that, if he had gotten assigned much earlier, this video tape issue could have been vetted earlier, and we would be ready to go to trial today. So, that's the most aggravating feature, in my submission, of the application this morning — not when I filed it because I didn't know if I was going to get the tape. I kept this weekend, this past weekend open so that Mr. Andre S. and I could review these tapes if they became available. But, unfortunately, we still don't have them.

¶ 44     MR. BELLEHUMEUR: Yes, I had advised my friend that the — had all the dynamics of this tape slowing down this — these two tapes actually which comprises about four days of actual time — had that commenced in response to my friend's efforts early on in the year it could have been done.

¶ 45     My understanding, and I don't pretend to understand how the machinery, the actual physical video tape machinery works, but it could have — I am given to believe that the — it would have taken about four days to — working days, to have taped the entire process.

¶ 46     Now, of course, by the time that became apparent to me last week, it would have been too late for Mr. — we would have got the tape to Mr. — the slowed-down tape to Mr. Penney today or maybe even tomorrow. I'm just not sure.

¶ 47     The difficulty, of course, is that impacts more against the Crown because it could have been done so much sooner. So I have to concede that point.

¶ 48     That concludes my observations about any additional facts.

¶ 49     There's one small fact which maybe only goes to the subjective aspect of this application — I have reason to believe that at least the first letter on tab — the first copy of the letter which is under tab 'L' — I have reason to believe that that letter did not get to Mr. Atkinson because of the way — of where I found it in the file.

¶ 50     So, now what happened to the second letter that Mr. Butt received from Mr. Penney I have no way of inferring, but certainly "Does that excuse the Crown?" It does not. Our system is designed to make sure that these letters are directed properly; but again, just from a subjective point of view, I just learned from Officer Brown that with the exception of the first request letter for disclosure, and I don't remember the tab number of that — I think it might have been 'C' — he didn't receive copies of the additional flurry of correspondence that took place between my friend, my friend's office, and our office, which again, is our fault.

¶ 51     That just concludes my comments about the additional factual situation which my friend has brought out.

¶ 52     THE COURT:  Mr. Penney is the Court correct in assuming that the video which you requested would be essential to prepare full answer in defence?

¶ 53     MR. PENNEY:  Yes Your Honour, absolutely. In fact, I think it would be essential for the defence, and, I think, also it's a very important piece of evidence for the Crown as well. To be fair, there's a fast copy of the video that's in about ten times normal speed that you can watch but you really can't make out a whole lot and portions of that have been slowed down. I guess [the Employer] produced the portions that they thought were important for the prosecution, but I don't have the whole tape. I only have those portions of the tape that [the Employer] thought were important. So, I don't think that it was unreasonable and I don't think that Mr. Bellehumeur is disagreeing that, you know, I should have access to those portions of the tape that might be useful for the defence as well.

¶ 54     But, what is on that tape — the movements of Mr. Andre S., the movements of the other people, who else has access to the room, how the bait property was set up — all those would be key issues at trial.

¶ 55     THE COURT:  Without any disparaging comment, you think you would like to see the whole tape rather than the edited?

¶ 56     MR. PENNEY:  Yes, that's right.

¶ 57     THE COURT:  I think that might be in your client's best interests.

¶ 58     MR. PENNEY:  Absolutely, Your Honour, absolutely. We did try and watch the fast tape but it's almost impossible to tell who is coming — you really can't I.D. who is coming into the room. And, more importantly, you can't identify what they are carrying and what they are not carrying so it's — I don't think Mr. Bellehumeur is disagreeing with that.

¶ 59     THE COURT:  We have set aside ample time, which I am reluctant to lose, because that adversely affects your client in resolving this matter.

¶ 60     You have, as I say, the application and I'm wondering if perhaps the proper or a procedure — I strike the word proper — a procedure that could be followed is at this juncture to decide on the application, because should you be successful, it is a mute point from the tapes that you don't have.

¶ 61     Should you not be successful — obviously then you would need an adjournment to ...

¶ 62     MR. PENNEY:  Yes, I think Your Honour's suggestion is a good one. In terms of the relief, I am simply asking that the matter be stayed, and if Your Honour doesn't consider it an appropriate matter for a stay, then an order for production of the video tapes, an order for the costs of this application, and an order for an adjournment.

¶ 63     THE COURT:  I have all of that, thank you.

¶ 64     MR. PENNEY:  You have all of that? Just so it's clear in terms of the procedure. And I totally agree Your Honour should make those rulings first.

¶ 65     THE COURT:  Does the Crown see any flaw or detriment to the Crown's position?

¶ 66     MR. BELLEHUMEUR:  No, your analysis is correct.

¶ 67     THE COURT:  Thank you. All right, well if we look then — your analysis then in the Application Record is accepted by the Crown. I won't go through the torturous step-by-step that outlines a litany of omissions rather than one of commissions.

¶ 68     The Crown accepts, and, as I said earlier, I find it refreshing that we don't have equivocation on the Crown's part. Mr. Bellehumeur set out quite succinctly, the length of the delay. The information alleges that on the 24th day of March, 2001, and that is the charge of theft over, the 31st day of March, a theft under, and, the 31st day of March, the second theft under.

¶ 69     The matter was first before the Court on May the 30th, 2001, and, as I say, we then have in Mr. Penney's Application Record, as I say, the torturous facts culminating in today when still the entire video had not been produced to Mr. Penney.

¶ 70     So, there is no dispute then on the length of the delay. I may have overlooked in reading this, a waiver. If I have, I apologize and I stand to be corrected; but, I saw nothing in my readings that indicated the delay — a waiver of the time period. Mr. Penney am I correct in my readings of that?

¶ 71     MR. BELLEHUMEUR:  That's conceded.

¶ 72     THE COURT:  That's conceded?

¶ 73     MR. BELLEHUMEUR:  Yes, Your Honour.

¶ 74     THE COURT:  Thank you. Next let's look at the reasons for the delay — the inherent time required.

¶ 75     We are looking here at three counts: one count of basically theft over and two counts of theft under.

¶ 76     The Court again is willing to stand corrected, but this is not, in the Court's opinion, a case of fraud with a myriad of complications. Theft over and theft under are part of the mainstay of our entire Court system. Some may involve a greater degree of evidentiary material than others, but basically the Court finds that the inherent time requirements of the case are not out of line with the great number of proceedings on this type of offence. So, I really can't, and I am willing to stand corrected again, but I don't see any real problems under the inherent time requirements of this case.

¶ 77     Inherent time requirements may be such — witnesses may be in another jurisdiction, the evidentiary problems of providing ownership and there is a myriad number of other things. I, in reading the material, saw nothing that would explain the delay under the inherent time requirements.

¶ 78     We look next to the actions of the accused. When we take a look, as we must do, at the Informations. On May the 30th, the accused was in attendance, July the 25th, August 29th, September 27th, October 26th, December 5th, all in the year 2001. We see no fail to appear and nothing in the actions of the accused that would in anyway delay. Moving into 2002 we had January 15th, again January 15th, February 22nd and then we come to February 22nd in which the third of September and the Court was vacated. Perhaps I will spend a moment on that.

¶ 79     MR. PENNEY:  Simply what happened, Your Honour, on the 15th of January is that without — I hadn't had a pretrial that day with the Crown but I was anxious to schedule the trial and a judicial pretrial and get a Crown assigned; so I went to see the trial coordinator and convinced him to do that and I said, if there's a problem with this date, we can vacate it but I need to schedule a trial date because that's the only way I can get a Crown assigned. So the trial coordinator agreed. Then on the 22nd of February at the judicial pretrial, Detective Brown was there, he attended and advised everybody that there was a problem with his dates so then we just rescheduled the trial date for the first available date after that.

¶ 80     THE COURT:  All right, that basically is what — well, perhaps in your desire to move forward you tried to be innovative and creative and the system does not accommodate that to a great — well, all right so the date was set but it is interesting to note that the date that was hoped that things would be done was the third of September, some two weeks ago; so there is no delay taken up to that time.

¶ 81     So by looking, as I say, at the Informations, we see nothing in the actions of Mr. Andre S. that would in any way be attributable to a delay.

¶ 82     We now come to the next section, actions of the Crown. It is very easy for a trial judge in the serenity of the Court to be critical of the actions of a Crown. I would divide this matter into two parts, if I may. We have one, not B.C. but B.B. and A.B. — before Bellehumeur and after Bellehumeur. Certainly before it is, as I said, a litany of lack of time on the Crown's part, the old adage, what is everyone's business is no one's business. The matter, misplaced communications, and I am not attributing any malfeasance whatsoever. The Crown's office is not, nor I suppose should it be, exempt from any of the restrictions of staff time, but certainly any of the delays set out in Mr. Penney's factum are the result of omissions in the Crown's office. As I say, there is no point in second-guessing. It's not the role of the judiciary to act in the role of a coroner in an inquest to point out that things should be done differently. I am sure that the team leaders and the Crown Attorney Mr. Culver would gladly have the utilization of more time for his people, more resources at his disposal, but such is not the case. So it is difficult, if not impossible, to lay the delay other than the omissions in the Crown's office, and that is if we look at Mr. Bellehumeur's matters as well.

¶ 83     We want now to turn to an aspect that perhaps has been not given the attention it deserves. I refer to an unreported case in the Supreme Court of Canada, Regina versus Atkinson. This was a case involving a very complex fraud. The trial judge in making his rulings was doing splendidly on the first four pages on the Supreme Court's decision, in fact, the jurist was almost a little puffed up as he read page after page; but, at the bottom of page four he was brought to a sudden jolt when the Supreme Court said however, and from then on it was downhill and that was on the matter of prejudice. I am going to have to call Mr. Penney because prejudice really must be looked at in relationship to the accused. Mr. Andre S. has had a delay. He has done nothing overtly to cause the delay, but I would like to dwell, as I say, on the prejudice.

¶ 84     MR. PENNEY:  Your Honour, I am going to divide my submissions on prejudice into three areas and these areas are outlined by Mr. Justice Sopinka in the Morin case.

¶ 85 Essentially, when we are dealing with prejudice there are three areas, in my submission, Your Honour can look at. Firstly, Your Honour can look at the length of the delay because prejudice may be inferred only from the length and from nothing else.

¶ 86     THE COURT:  That's right.

¶ 87     MR. PENNEY:  Secondly, Your Honour can look at the actions of the accused; even though he did nothing to delay the case, what else did he do to get the case on? Is this an accused who falls into that category of persons that wants the case delayed or is this an accused that is sincerely interested in the trial of the merits?

¶ 88      And the third area, Your Honour can look at the direct evidence of prejudice. Is there prejudice in putting a full answer in defence or is there any other direct prejudice?

¶ 89     Now, in terms of the first one I am simply going to leave that with Your Honour. Seventeen months in my submission, Your Honour, can draw an inference. It is not a presumption; it's a permissible inference Your Honour may draw and I'm going to be submitting at the end that Your Honour — that inference, in fact, should be drawn in this particular case because it's going to be buttressed by looking at his actions throughout and the direct evidence of prejudice.

¶ 90     On the second ground, we have to look at his actions and what can we infer from his actions about his interest in a timely trial on the merits?

¶ 91     Well the first thing, Your Honour, is that he was charged and released on April the 17th. Your Honour may notice or may not have noticed but Tab A in my materials is my request for disclosure and it's dated the day after he is charged. So, this is not an accused that's coming to Court like a deer in the headlights on the first day saying: "Well I don't know; I haven't thought about getting a lawyer; I don't really know what's going on." The day after he is charged, he retains counsel and instructs counsel to get on this, order disclosure, let's get this matter on. So, from the very beginning, in my submission, his actions in Court have been consistent with that and can be inferred as well through my actions. When I got the disclosure we reviewed it as quickly as we could and got back to the Crown — kept updating the Crown. In my submission Your Honour, the exhibit that tells the most, again, about his interest in a timely trial on the merits is my — is the letter of January the 16th to the team leader asking that a Crown be assigned and the actions the day before.

¶ 92     In my submission, he has no obligation to write such a letter. He is entitled to just sit in the bushes and say, you know what, I'm going the day of the trial and if they're not ready I'm just going to tell the judge we're not ready and I don't have the disclosure; but, that's not what we want to do. We want a trial on the merits. We probably want a trial on the merits because his job is on the line and that's all being held up because of these proceedings. So we send a letter in January and then we set up a judicial pretrial. We even circumvent the normal procedure and convince them to set the trial date earlier and we go for another judicial pretrial and a copy of this letter is given to Mr. Butt again requesting that a Crown be assigned.

¶ 93     Now Your Honour, in terms of — and if you look at — this is all not in the exhibits because some of it was through phone calls, but if you look at exhibit N, which again, in my submission shows Mr. Andre S.'s diligence. The seventh of May, Your Honour may recall, was four days after the strike was over. Now I hadn't been advised — I was aware that the video staff in this Crown's office was designated non-essential. So, not only were they not working that six-week period from March 13th to three of May; but, when they did get back to work, not only did they have their normal work which they are always busy with but they had a mountain of material. So, I said I had better write another letter just to make sure. I don't send it to them, to the video office, I send it to a Crown because I want a Crown to have a look at this. I send it to — on the seventh of May, I faxed it to the Crown saying that I had been informed that no audios and videos were being prepared and I appreciated that the returning staff must be processing a mountain of material but I wanted to be sure that Mr. Andre's request didn't get buried too deeply. I mentioned the prejudice. I mentioned that his trial is taking place 17 months afterwards, in fact I made an error, because it's 17 months and 19 days but it's 17 months — 17 months and 19 days after the date of the offence but the time of course starts from the day the information is sworn which is 17 months and I asked for an earlier trial date if one can become available.

¶ 94     So, again, Your Honour, it demonstrates an interest, in my submission — it demonstrates, sorry, that Mr. Andre S. is interested in a timely trial on the merits.

¶ 95     I don't hear back from that letter of course until the 22nd of July and this is not an exhibit but this is in the affidavit regarding the history under Tab 3; the 22nd of July, [a Crown] from the Crown's office telephoned me to advise me that the seventh of May letter had been given to her and she just wanted me to resend the disclosure request, which I did. I resent it. In my submission, again, it shows diligence on his part because we are responding in a timely way to the Crown's request; in fact, they requested it that day, and I resent it that day, and it's not unreasonable for him to assume by now we'd have a live body because that's one problem you have as a defence counsel: making sure there is a live body in the Crown's office that is looking at your problem. I appreciate what Mr. Bellehumeur said about letters getting lost, but, at this point, I am thinking that somebody alive is looking at this, maybe we'll get it, but then, of course, I don't hear back again.

¶ 96     The other fact I would like Your Honour to consider in terms of assessing his actions is his request for an earlier trial date. Now, I know not much can be done because I've tried this before with Mr. Valerio, the trial coordinator, and it's well known in the building that trial time is precious and as much as he is suffering prejudice because his job is at stake, there are people lingering away in jails in poor conditions and their prejudice is much greater so whatever trial time is available certainly has to be assigned to them; that's a resource problem and we understand that, but I just want you to know he did make the request. It is something the Court — the Supreme Court of Canada in Morin, [1992] 1 S.C.R. 771, Your Honour may recall, in Morin, six weeks before the trial date, the Durham Crown's office had sent a letter to all the defence counsel and the defence counsel didn't even bother responding to see if they could grab an earlier date and the Supreme Court of Canada said well look, maybe they couldn't get a date but the point is, if he was interested in moving this thing on then maybe they could have contacted them and from that we could infer that he is suffering some prejudice. So, I am asking Your Honour to examine his conduct as a whole, from the day after he was charged right up until today. It's my submission if you look at any of his conduct in any of this case, it demonstrates that he is an individual who is interested in a timely trial on the merits. He's not holding things up. He is asking that dates be set, even if they shouldn't be set. On January the 15th, I didn't have to set a trial date. The trial date, as Your Honour may know, is eight and a half months after — eight months and nineteen days after January the 15th. I could have easily waited until the February judicial pretrial date, which is exactly what I was supposed to do but I said, no, no, no, no, let's grab an early one because we are getting an early date and also because we might get a Crown assigned so we can effectively deal with these issues and not be stuck on the day of the trial without disclosure which is exactly what happened. So, I am not going to say anymore with respect to that second ground.

¶ 97     The third ground is the direct evidence of prejudice and we have sort of two areas to look at this morning in my submission. One is the greatest area of prejudice in my submission, the fact that even today, seventeen months and nineteen days after he was — these facts came to light, we are still not ready to go to trial. There is no greater prejudice than stems from the inability to provide full answer in defence. We're just not ready to go to trial. We are not able to properly meet this case.

¶ 98     The other direct evidence of prejudice Your Honour is in my Application Record, is Mr. Andre S.'s affidavit under Tab 4 ...

¶ 99     THE COURT:  Yes.

¶ 100    MR. PENNEY:  ... and he simply indicates where he lives, that he has no criminal record and no outstanding charges, where he works, he indicates that he had been working for [his Employer] for approximately 12 years and when he was terminated he was earning approximately fifty-two thousand dollars per year — where he is working now he makes considerably less than that.

¶ 101     Paragraph five, Your Honour, speaks to the prejudice. He is indicating with the assistance of his Union and the collective agreement he has challenged his dismissal by filing a grievance. He says he has to wait until the criminal matter is completed before he can effectively deal with this grievance. He said he is anxious to have the criminal matter finished so that he can fight to regain his job with [his Employer] and that may or may not happen but it's not uncommon for a person, a professional to have him — essentially he's suspended without pay until this matter is completed or fired as the case may be but the thing is, there is a procedure within his employment contract that allows him to go back to this job but this has to be dealt with first and that makes sense that this should be dealt with first before that.

¶ 102     And then in paragraph six he talks about the stress and anxiety ...

¶ 103     THE COURT:  Well, I don't mean to diminish that at all but paragraph six could be taken and put into any application ...

¶ 104     MR. PENNEY:  True.

¶ 105     THE COURT:  ... of any person because when you have a decent and upstanding citizen suddenly thrust into the Court system, paragraph six is a common result. I think that is one of the areas that the Supreme Court of Canada felt would apply to any person who wasn't familiar with the Court system and Mr. Andre S. would fall under that umbrella.

¶ 106     MR. PENNEY:  Yes, I agree with that. In fact, I quote in my factum in paragraph 24 where Mr. Justice Sopinka said it was prejudice to the accused — evidence can be shown of the ongoing stress or damage to reputation. I'm not disagreeing with what Your Honour says but still it is something that is present in his life ...

¶ 107     THE COURT:  Oh yes, exactly.

¶ 108     MR. PENNEY:  ... and if this was all that I had concerning prejudice perhaps it wouldn't carry today. But, it is something that Your Honour, in my submission, still can consider and it's buttressed — I mean I am not asking Your Honour to consider that in isolation because anyone can say that and sometimes it is hard to assess, you know, how stressful his life might have been — different people react to situations differently. But this Your Honour, in combination — look at these words and then assess that in combination with his actions right from the beginning. I mean, is he being sincere when he says that his sleep is restless and he is anxious and people tell him that the world is on his shoulders and he's worrying all the time? Is that consistent with someone going out and hiring a lawyer the day after he's charged, with someone who is trying to get a trial date on early — asking that a Crown be assigned so we get the disclosure so we are not in a big mess on the day of the trial? In my submission, it is. It is consistent with someone who's done that. But again, it is only one thing that Your Honour must consider and of course Your Honour must consider the totality of the other circumstances. Subject to any questions Your Honour might have, those would be my submissions on the three areas of prejudice that I am asking Your Honour to consider.

¶ 109     THE COURT:  Mr. Bellehumeur, on the matter of prejudice, do you have any submissions?

¶ 110     MR. BELLEHUMEUR:  As far as the actual time limit, I think my friend and I are more or less in agreement that it certainly is at this time at a stage where the Court can infer prejudice. In other words, it's not so grossly late in time that you almost have to infer prejudice and it's not so soon that a finding of prejudice would be a reach. We must remember that really it's the first trial date which has to be a consideration in considering the system here in the Old City Hall; but, it's still a long time.

¶ 111     With regard to the balance of my friend's points, the second and third round which include the defendant's actions, with regard to the second ground, I have to concede, that in this particular case, my friend has conducted the defence side of the disclosure process in a text-book fashion. It's not often you get the request prior to the first appearance so that the disclosure request document, which is one of these forms, is put in the Crown brief and stimulates some other actions, the nature of which I am unclear of, and actually assists in speeding up the disclosure process and then everything else that is done is done. There is no way we could find flaw with the defendant or his counsel's actions.

¶ 112     Now with regard to the direct evidence, I suppose it's important to consider Mr. Andre S.'s predicament insofar as his job is concerned with societal interests and that is sort of touching on this Williamson case which actually has some parallels to this matter. I am not suggesting for an instant that, although Mr. Andre S.'s job is very important, it doesn't mask the importance of prosecuting a debt which the Williamson case did. But the societal interests in ensuring that what we allege to be a significant breach of trust, possibly far ranging on occasions, should and must proceed to trial and that interest over comes the clear prejudice, and I concede this, of Mr. Andre S. in having his own job, which is his life-line, having that job in suspense in more than one sense of the word. That decision has to be made by the Court. It's not, I suggest, for the Crown to minimize Mr. Andre S.'s job concerns and the importance of that job to his family, nor is it up to the Crown to say that the interests of the system of justice at large should overwhelm them.

¶ 113     With regard to the comments in the affidavit, I tend to subscribe to the dialogue between Your Honour and Mr. Penney that it's not for the Crown to minimize the stresses here; although, it would seem that it would be nothing really unusual — and I say that with the greatest of respect to him — nothing unusual for a person who has had no contact with the system of justice to maybe suffer more than somebody who is a career hoodlum.

¶ 114     But the issue of prejudice is something that is elusive insofar as it effects the Court's decision to take a dramatic step and curtail a Crown prosecution on a serious matter. Some of the prejudice here is subjective to Mr. Andre S. and possibly not unusual for most people who do work for a living. But it's an area that I have to defer to the Court.

¶ 115     THE COURT:  The matter of prejudice to the accused is crucial. I am going to have the morning recess. There are a number of cases — and, while I am indebted to both the Crown and the defence, there are a number of other cases that I wish to refer to. We'll adjourn until twelve o'clock. Thank you.

[REPORTER'S NOTE:  At this point, Court recessed until twelve noon.]

¶ 116     THE COURT:  Good afternoon.

¶ 117     CLERK OF THE COURT:  Court has reconvened, please be seated.

¶ 118     THE COURT:  I have kept in mind Mr. Andre S.'s position as set forth by Mr. Penney and rather than give a written judgment which would prolong the decision for Mr. Andre S., I decided that we would instead have just an oral one. So I trust you will forebear with me any of the — really, the matter comes down to a fairly straight forward sphere of study.

¶ 119     First, we make a finding that there has been undue delay in these proceedings. The delay must be borne by the Crown.

¶ 120     We then move to the next area of study. Is the stay of proceedings a proper remedy in this case? We read case law and it's true, just because it's trite doesn't make it any less true, that a stay is a remedy of such a proportion that it should only be used sparingly and with that of course the Court has no variance.

¶ 121     This case involves a very straight forward matter. There are three counts of breach of trust by theft; two counts of theft under and one count as I say of theft over.

¶ 122     Now, we must in looking at the prejudice see whether societal interests in a property case, a case involving property, versus the interests of the accused under the relevant section of the Charter; that is, his right to be guaranteed a fair trial in a reasonable time.

¶ 123     I look at the affidavit of Mr. Andre S. We've taken into account the effect it had on him psychologically and the not inconsiderable fact that it had on Mr. Andre S. financially. All too often we tend to think we live in a lofty world of money which is something that really should not even really be considered but he has been unpaid since he was relieved of his position.

¶ 124     We have, as I say, the advantage of the unreported case of the Supreme Court of Canada Regina and Atkinson. As I say, when you consider that this case involves property and in two of the cases property under five thousand dollars, it is difficult, in fact impossible, for the Court to feel that the societal interests are such that Mr. Andre S.'s right to a fair and speedy trial are in anyway off-set by the other interests.

¶ 125     Stand up. I find, as I say sir, that there was a delay, an undue delay in this matter, and the delay was in no way caused by yourself or any actions you took. The delay, as I say, is entirely as a result of the actions or inactions of the Crown Law Office. And, in spite of the really remarkable display of candor exercised by the present Crown, it cannot cure nor remedy the inactions that existed prior to his carriage of the action.

¶ 126     As a result of prejudice and the delay, there will be a stay of proceedings. Thank you. Thank you.

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