Roland's Case — Excessive Delay — Written Submissions

PART I - STATEMENT OF THE CASE

1. The Applicant is charged by an Information sworn on 29 October 1997 as follows: "... on or about the 21st day of October in the year 1997 at the Municipality of Metropolitan Toronto, in the Toronto Region did have in his possession child pornography to wit a quantity of magazines contrary to the Criminal Code."

2. The Applicant alleges a breach of his right to have his trial within a reasonable time as provided by section 11(b) of the Canadian Charter of Rights and Freedoms, and seeks a stay of these proceedings as a remedy under section 24(1).

PART II - SUMMARY OF THE FACTS

3. The history of this matter is outlined in an organized manner in the following table from the supporting affidavit.

DATE	MATERIAL EVENT
21 October 1997	Investigation Commenced: As a result of information received from two informants, a search warrant is obtained. The warrant is executed at 110 Seamstree Road, North York. Printed material alleged to be child pornography is seized. Arrest: During the execution of the search warrant, the Applicant is detained. He is released on an "appearance notice," which indicates that he will be charged with "possession of child pornography." Investigation Completed: Except for the filing of the Report to justice, the investigation is completed.
22 October 1997	Counsel Retained: The Applicant contacts and retains his current counsel, Craig J. Penney, Barrister. Disclosure Ordered: Mr. Penney contacts the Crown to advise them that he has been retained and to order the disclosure. Attached as Exhibit "B" is the disclosure request form which was faxed to the Crown that day.
18 November 1997	1st Court Date: The Applicant indicates that he is waiting for the disclosure, and that he is anxious to proceed. The matter is adjourned to 16 December 1997. Mr. Penney attends at the Crown’s office to indicate that the disclosure is still outstanding and to advise them of the new court date.
16 December 1997	2nd Court Date: The Applicant is still waiting for the initial disclosure. The matter is adjourned to 13 January 1998. Disclosure Re-ordered: The Applicant again faxes the Disclosure Request Form, attached as Exhibit "B," to remind the Crown that the disclosure is still outstanding.
13 January 1998	3rd Court Date: The Applicant is still waiting for initial disclosure. The matter is adjourned to 10 February 1998.
9 February 1998	Initial Disclosure Ready: Mr. Penney receives notice by fax that the initial disclosure is available at the Crown's office.
10 February 1998	Disclosure Obtained: Mr. Penney obtains the disclosure from the Crown. He also schedules a pre-trial meeting with the Crown for 27 February 1998. 4th Court Date: The matter is adjourned to 11 March 1998.
11 February 1998	Additional Disclosure Requested: Having reviewed the initial disclosure, Mr. Penney seeks additional disclosure by letter faxed and dated 11 February 1998. Mr. Penney also faxes a copy of the undertaking he is prepared to give in order to receive a copy of the material alleged to be child pornography. That letter, the undertaking, and the fax confirmation reports, are collectively attached as Exhibit "C."
27 February 1998	Pre-trial Meeting: Mr. Penney has a pre-trial meeting with Mr. Don Bentley Assistant Crown Attorney. Mr. Bentley indicates (i) that his office has not acted on Mr. Penney's 11-February-1998 disclosure request and proposed undertakings, (ii) that he does not have time to deal with that request, and (iii) that someone in his office should be responding soon to the request and the proposed undertakings.
11 March 1998	5th Court Date: As Mr. Penney has not received a response to his 11-February-1998 disclosure request, the matter is adjourned to 7 April 1998. Crown Requests Another Copy of Disclosure Request: Ms Kerry Harlow, Assistant Crown Attorney, faxes Mr. Penney a note to indicate that the 11-February-1998 disclosure request was not in the brief and to ask that Mr. Penney again fax that request to the attention of the "111 Crown on 7 April 1998." That fax is attached as Exhibit "D." Disclosure Requested Again: Mr. Penney again faxes to the Crown the 11-February-1998 disclosure request. That request is attached as Exhibit "C."
30 March 1998	Crown Requests Another Copy of Disclosure Request: Ms Kerry Harlow, Assistant Crown Attorney, contacts Mr. Penney to advise him that she has been assigned to respond to his additional disclosure request. She requests that Mr. Penney (i) send her another copy of the 11-February-1998 disclosure request, and (ii) advise her of the name of the officer-in-charge of the matter. Disclosure Requested Again: With a cover letter dated 30 March 1998, Mr. Penney again faxes to the Crown the 11-February-1998 disclosure request and a copy of the proposed undertakings. The 11-February-1998 disclosure request is attached as Exhibit "C." The 30-March-1998 letter and the fax confirmation report are attached as Exhibit "E."
7 April 1998	6th Court Date: Mr. Penney is waiting for Ms Harlow to respond to his 11-February-1998 disclosure request. The matter is adjourned to 7 May 1998. Meeting with Ms Harlow: Mr. Penney meets with Ms Harlow at the Crown's office, and advises her of the new court date. She responds by indicating that she is not yet in a position to respond to his disclosure request. Mr. Penney also informs Ms Harlow that she should contact Detective Sergeant Tesh, Forensic Identification Services, Toronto Police Force, 40 College Street, 416 808 1205, as his office was capable of providing the colour laser copies of the alleged child pornography.
7 May 1998	7th Court Date: As Mr. Penney is waiting for Ms Harlow to respond to his 11-February-1998 disclosure request, the matter is adjourned to 9 June 1998. Letter to Ms Harlow: Mr. Penney sends Ms Harlow the letter attached as Exhibit "F" to advise her of the new court date and of the fact that he has not received a response to his disclosure request.
9 June 1998	8th Court Date: Mr. Penney is still waiting for Ms Harlow to respond to his 11-February-1998 disclosure request. The matter is adjourned to 20 July 1998. Letter to Ms Harlow: Mr. Penney faxes Ms Harlow a letter advising her of the new court date, and indicating that he still has not received a response to his 11-February-1998 disclosure request. He indicates that the Applicant is anxious to proceed. That letter is attached as Exhibit "G."
11 June 1998	Crown Requests Another Copy of Disclosure Request: Ms Harlow telephones Mr. Penney, and requests another copy of the 11-February-1998 disclosure request. Disclosure Requested Again: Mr. Penney faxes Ms Harlow another copy of the 11-February-1998 disclosure request and the proposed undertakings. The 11-February-1998 request is attached as Exhibit "C." The letter dated 11 June 1998 that was faxed with that request is attached as Exhibit "H."
23 June 1998	Crown telephones Defence: Ms Harlow telephones Mr. Penney. She again requests the name of the police officer responsible for producing colour laser copies. Mr. Penney again informs Ms Harlow that she should contact Detective Sergeant Tesh, Forensic Identification Services, Toronto Police Force, 40 College Street, 416 808 1205.
16 July 1998	Crown authorizes copying of alleged pornography: By letter to police officer O'Deary, Mr. Rick Bolder, Assistant Crown Attorney, indicates that the Crown will be responsible for the copying of the material alleged to be child pornography. That letter is attached as Exhibit "I."
16 or 17 July 1998	Disclosure Received: Mr. Penney receives a copy of the material alleged to be child pornography.
20 July 1998	Letter to Crown: Mr. Penney faxes Ms Harlow a letter advising her of the new court date, and indicating that items 2 to 16 of the 11-February-1998 disclosure request remain outstanding. That letter is attached as Exhibit "J." 9th Court Date: Mr. Penney advises the Court that disclosure is still outstanding and that he has written to Ms Harlow. The matter is adjourned to 13 August 1998.
13 August 1998	10th Court Date: Mr. Penney is waiting for a response from Ms Harlow. The matter is adjourned to 15 September 1998.
18 August 1998	Police contact Defence: Police Officer Susan Bogdan telephoned Mr. Penney to determine the status of the matter. After the telephone call, Mr. Penney writes a memo to file. That memo is attached as Exhibit "K."
28 August 1998	Letter to Crown: Mr. Penney writes to Ms Harlow to indicate that he is still waiting for a response to numbers 2 to 16 in his disclosure request dated 11-February-1998. That letter is attached as Exhibit "L."
2 September 1998	Crown Responds: By letter dated 2 September 1998, Ms Harlow responds to Mr. Penney's numbers 2 to 16 in his disclosure request dated 11 February 1998. That letter is attached as Exhibit "M."
3 September 1998	Letter to Crown: Mr. Penney responds to Ms Harlow’s letter dated 2 September 1998. He requests further information. That letter is attached as Exhibit "N."
15 September 1998	11th Court Date: Mr. Penney explains that he is still waiting for disclosure from Ms Harlow. The matter is adjourned to 7 October 1998. Letter to Crown: Mr. Penney writes Ms Harlow advising her of the new court date, and requesting a response to his letter before the next court date. That letter is attached as Exhibit "O."
16 September 1998	Search Warrant Executed: The police execute a search warrant and seize (re-seize?) the alleged child pornography from themselves. Mr. Penney is not made aware of this search warrant until mid-October.
1 October 1998	Letter to Crown: Mr. Penney writes Ms Harlow asking for a response to his 3-September-1998 letter. That letter is attached as Exhibit "P." Response by Crown: Ms Harlow telephones Mr. Penney and leaves a voice-mail message indicating that she had written a response, but that it did not get faxed. Ms Harlow then faxes her letter dated 24 September 1998. That letter is attached as Exhibit "Q." Letter to Crown: Mr. Penney responds by letter. He indicates that he will bring a motion on short notice to obtain the required disclosure. That letter is attached as Exhibit "R."
2 October 1998	Application for Disclosure: Mr. Penney serves and files a Notice of Application to obtain the grounds upon which the search warrant was issued. That Notice of Application, the draft Order, and the accompanying cover letter are attached as Exhibit "S."
7 October 1998	12th Court Date: The disclosure application is granted. An order is made by His Honour Judge Macdonnell compelling the Crown to provide the Applicant with an edited copy of the grounds upon which the search warrant was issued.
8 October 1998	Letter to Crown: Mr. Penney writes a letter to Ms Harlow confirming the results of the Application and detailing the outstanding disclosure. That letter is attached as Exhibit "T."
9 October 1998	Crown contacts Defence: Ms Harlow telephones Mr. Penney. She informs him that the Report to Justice was done on 7 October 1998, and that it was "set for" 29 October 1998. She also informs him that Officer Bogdan's notes are available at the Crown's office, as is a copy of the Report to Justice. She indicates that Officer O'Deary’s notes are not yet available.
15 October 1998	Crown contacts Defence: Ms Harlow telephones Mr. Penney to inform him as follows: (i) there is additional disclosure to be obtained from the Crown’s office; (ii) she is not the assigned Crown, as she was only assigned to deal with the disclosure request; (iii) she does not object to the scheduling of the judicial pre-trial and agrees that the matter will take about a day; (iv) she will soon provide the edited grounds for the issuance of the 21-October-1997 search warrant.
16 October 1998	Defence schedules Judicial Pre-trial: Mr. Penney contacts the trial coordinator to schedule the matter for the first available judicial pre-trial. He then writes Ms Harlow to advise her of that date. That letter is attached as Exhibit "U."
17 October 1998	Further Disclosure Request: Having recently learned that the police executed a second search warrant in relation to this matter on 16 September 1998, Mr. Penney requests disclosure regarding that search and seizure. That letter is attached as Exhibit "V."
30 October 1998	Disclosure Provided: In compliance with the Order made on 7 October 1998, Ms Harlow telephones Mr. Penney to advise him that the edited version of the grounds for the initial search warrant are available at the Crown's office.
4 November 1998	Further Disclosure Requested: Having received and reviewed the edited grounds for the initial search warrant, Mr. Penney writes Ms Harlow detailing the outstanding disclosure. That letter is attached as Exhibit "W."
5 November 1998	13th Court Date: Mr. Penney advises the Court of the judicial pre-trial scheduled for 18 November 1998. The matter is adjourned to 8 December 1998.
18 November 1998	Judicial Pre-trial: Mr. Penney attends the judicial pre-trial with Assistant Crown Attorney Allison Darling, Officers Bogdan and O’Deary, and His Honour Judge Ormston. Most of the disclosure issues are resolved. Trial Date Scheduled: Mr. Penney and Ms Darling attend the trial coordinator’s office to schedule the trial for the first available date and to schedule the delay application in advance of the trial. The trial is scheduled for 16 April 1999.
23 November 1998	Letter to Crown: Mr. Penney writes to Ms Darling, confirming the results of the judicial pre-trial, and confirming the request of additional material which will be necessary for the section 11(b) Charter application. He sends a copy of that letter to Ms Harlow. That letter is attached as Exhibit "X."
8 December 1998	14^th Court Date: The trial date (16 April 1999) and the date for the section 11(b) Charter application (26 March 1999) are confirmed.
9 December 1998	Letter to Crown: Mr. Penney writes to Mr. B**** requesting an early assignment of an Assistant Crown Attorney. That letter is attached as Exhibit "Y."
12 January 1999	Defence contacts Crown: Mr. Penney telephones the Crown's office to determine if a Crown has been assigned to the matter. He is informed that no Crown is assigned as yet.
1 March 1999	Crown Assigned: Mr. Penney attends at the Crown's office. He learns that the Crown assigned to the matter is Ms Anna Tetley.
2 March 1999	Letter to Crown: Mr. Penney writes to Ms Tetley, again requesting the disclosure that will be necessary in order for the Applicant to properly prepare for the section 11(b) Charter application. That letter is attached as Exhibit "Z."
9 March 1999	Telephone Call from Crown: Assistant Crown Attorney Ms Helen Shapiro telephones Mr. Penney to inform him, inter alia, that she is the assigned Crown for March 26th and that her position is that all communications between the Crown and police are privileged and not subject to disclosure. Mr. Penney provides Ms Shapiro with the citation for the Nesbeth case, and asks her to review that case before making a final decision.
11 March 1999	Letter from Crown: Ms Shapiro writes to Mr. Penney to confirm that she will be disclosing communications between the police and the Crown's office. That letter is attached as Exhibit "AA."
12 March 1999	Letter from Crown: Ms Shapiro writes to inform Mr. Penney that she was only able to locate one note between the Crown and the police regarding disclosure, and she discloses that note (i.e., the 16-July-1998 letter from Mr. Bolder attached as Exhibit "I"). Ms Shapiro’s letter is attached as Exhibit "BB."

Affidavit Re History of Matter, Tab 4, Pages 2-8

PART III - ISSUES AND THE LAW

Test for Unreasonable Delay

4. In Morin, Mr. Justice Sopinka, writing for the majority, outlined the following factors which are to be considered when analyzing whether there has been a breach of section 11(b) of the Charter:

a. the length of the delay;

b. waiver of time periods;

c. the reasons for the delay, including

i. inherent time requirements of the case;

ii. actions of the applicant;

iii. actions of the Crown;

iv. limits on institutional resources, and

v. other reasons for the delay; and

d. prejudice to the applicant.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 13 (S.C.C.)

a. The Length of the Delay

5. The Applicant was released on an appearance notice on 21 October 1997. His trial is scheduled to commence on 16 April 1999. The total delay is 17 months and 26 days.

Affidavit Re History of Matter, Tab 4

6. This delay is prima facie unreasonable and warrants an inquiry into reasons for the delay. As His Honour Judge Moore held in Meier, "[a]nd what we have here is a delay of 12 months ... prima facie, there is a delay which requires the court to look at, and inquire into ..."

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 14-15 (S.C.C.)

R. v. Meier, [1998] O.J. No. 3489, (Ont. Ct J.), page 2, par. 8

b. Waiver of Time Periods

7. The Applicant did not by agreement or other conduct waive his section 11(b) Charter rights.

Affidavit Re History of Matter, Tab 4

c. Reasons for the Delay

8. Since this application cannot "be resolved by reason of the principles of waiver, the Court will have to consider the other explanations for delay."

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 16 (S.C.C.)

c. Reasons for the Delay ─ i. Inherent Time Requirements

9. This inquiry is concerned with delay factors which flow from the nature of the matter, including the complexity of the case and the intake requirements (e.g., time to retain counsel). The Court's task is to determine a realistic time period for the preparation of a particular type of case, having regard to the number of accused, the number of charges, and the complexity and volume of evidence, if fully adequate institutional resources were available to the police, the Crown's office, and other governmental agencies involved in the investigatory process.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 16-17 (S.C.C.)

10. The Applicant's matter is not complex. The prosecution is based upon a brief, discreet event ─ whether the Applicant possessed child pornography on 21 October 1997. Moreover, the investigation was commenced and completed on 21 October 1997.

Affidavit Re History of Matter, Page 2

11. The complexity of the Applicant's matter is similar to that of the accused in Morin, where "the preparation of the case for the prosecution was essentially complete by the time the accused was released from custody shortly after her breathalyser test." In Morin, the Court determined that the inherent time requirements were two months.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 25 (S.C.C.)

12. It is respectfully submitted, therefore, that the inherent time requirements for the Applicant's matter are 2 months.

c. Reasons for the Delay ─ ii. Actions of the Applicant

13. Included in this category are all voluntary actions of the Applicant which may have caused delay, such as change of venue motions, attacks on wiretap packets, attacks on search warrants, and adjournments which do not amount to waiver.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 17 (S.C.C.)

14. It is respectfully submitted that none of the delay can be attributed to the actions of the Applicant. On the contrary, the Applicant has demonstrated a desire to have this matter dealt with on a timely basis.

c. Reasons for the Delay ─ iii. Actions of the Crown

15. His Lordship Mr. Justice Sopinka explained the nature of this inquiry in Morin: "[a]s with the conduct of the Applicant, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the [Crown] which delay the trial may be investigated."

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 18 (S.C.C.)

16. The Applicant submits that 10 months and 28 days of the delay is attributable to the Crown. The earliest available trial date was scheduled on 18 November 1998, 12 months and 28 days after the Applicant was served with his appearance notice. Allowing 2 months for the inherent time requirements, the delay attributable to the Crown is 10 months and 28 days.

17. The Applicant does not allege mala fides on the part of the Crown or the members of the Toronto Police Force involved in this matter. As stated in Morin, the concern is not with assigning blame for the delay, but with explaining the reasons for the delay.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 18 (S.C.C.)

18. The Crown's actions which resulted in delay include the following:

On 27 February 1998, at the pre-trial meeting the Applicant had scheduled, the Crown was not in a position to deal with the 11-February-1998 disclosure request for additional material.

Affidavit Re History of Matter, Page 3

On 11 March 1998, the Crown informed the Applicant that the 11-February-1998 request was not in the Crown brief. The Crown asked the Applicant to fax another copy. A second copy was provided to the Crown that same day.

Affidavit Re History of Matter, Exhibits "C" and "D"

Affidavit Re History of Matter, Page 3

On 30 March 1998, the Crown requested another copy of the 11-February-1998 disclosure request. A third copy was provided to the Crown the same day.

Affidavit Re History of Matter, Exhibits "C" and "E"

Affidavit Re History of Matter, Page 3

On 11 June 1998 ─ four months after the 11-February-1998 disclosure request was first sent ─ the Crown requested another copy of that request. A fourth copy was provided to the Crown that same day.

Affidavit Re History of Matter, Exhibits "C" and "H"

Affidavit Re History of Matter, Page 4

The Crown took almost 9 months to provide a copy of the printed material alleged to be child pornography, which was item number 1 in the Applicant's 11-February-1998 disclosure request. The Crown did not authorize the expenditure for the copying of that material until 16 July 1998.

Affidavit Re History of Matter, Exhibit "I"

Affidavit Re History of Matter, Page 5

The Crown did not receive an initial response to the other items in that request (numbers 2 to 16) until 2 September 1998.

Affidavit Re History of Matter, Exhibit "M"

Regarding the grounds for the issuance of the 21-October-1997, the Crown failed to bring an application to vary the sealing order so that disclosure of the grounds (edited by the Crown) could be disclosed to enable the Applicant to make full answer and defence.

Affidavit Re History of Matter, Exhibits "P" and following

Affidavit Re History of Matter, Page 6

Important disclosure issues remained unresolved until the judicial pre-trial meeting on 18 November 1998.

Affidavit Re History of Matter, Exhibits "W" and "X"

Affidavit Re History of Matter, Page 7

c. Reasons for the Delay ─ iv. Limits on Institutional Resources

19. The total institutional delay is 4 months and 29 days. The background is as follows. On 18 November 1998, the Applicant and the Crown attended the trial coordinator's office, and scheduled the matter for the earliest available trial date, which was 16 April 1999. When the Applicant appeared in Court on 8 December 1998, that date was confirmed.

Affidavit Re History of Matter, page 7

Affidavit Re History of Matter, Exhibit "X"

Transcript of proceedings on 8 December 1998

20. The Applicant concedes that an institutional delay of 4 months and 29 days is acceptable for summary-conviction matters.

R. v. Burgess, [1997], Q.L. ─ O.J. No. 1056 (Ont. Ct (P.D.))

c. Reasons for the Delay ─ v. Other Reasons for Delay

21. There are no other reasons for the delay.

d. Prejudice to the Applicant ─ The General Approach

22. It is respectfully submitted that this Honourable Court ought to examine the following three areas to determine what prejudice, if any, the Applicant has suffered. First, the length of the delay must be examined, as prejudice may be inferred solely from the length of the delay. Secondly, the Applicant's actions must be examined to determine what inferences, if any, are to be drawn from the Applicant's conduct. Thirdly, the Court must consider the direct evidence, if any, of the prejudice the Applicant has suffered.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 23ff (S.C.C.)

R. v. Meier, [1998] O.J. No. 3489, (Ont. Ct J.), page 4, par. 23

d. Prejudice to the Applicant ─ i. Length of Delay

23. The total delay is 17 months, and 26 days. It is respectfully submitted that the Court may infer that any person without a criminal record charged with "possession of child pornography" would suffer prejudice by having that charge remaining unresolved for that length of time.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 23 (S.C.C.)

d. Prejudice to the Applicant ─ ii. Actions of the Applicant

24. Accused persons have no obligation to expedite their trials, as it is the Crown's responsibility to bring them to trial. However, action or inaction on the part of the accused can be taken into account when assessing whether that accused has suffered prejudice.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 24 & 28 (S.C.C.)

25. It is respectfully submitted that the Applicant has been diligent throughout these proceedings, and that his actions have demonstrated a desire for a timely trial on the merits, as evidenced by the following:

The Applicant retained and instructed counsel the day after he was charged. As Judge Moore held in Meier, "it is somewhat important that Mr. Meier, prior to his first appearance in court, retained counsel. I think that in and of itself indicates a concern with the matter and a concern that the matter get dealt with in a proper fashion."

R. v. Meier, [1998] O.J. No. 3489, (Ont. Ct J.), p. 3, par. 20

The day after the Applicant was released on an appearance notice, the Applicant's counsel ordered disclosure from the Crown.

Affidavit Re History of Matter, page 2

Affidavit Re History of Matter, Exhibit "B"

The three times that the Crown requested another copy of the 11-February-1998 disclosure request the Applicant promptly sent a copy the same day.

Affidavit Re History of Matter, pages 3-4

Affidavit Re History of Matter, Exhibits "C", "E", and "H"

Applicant's counsel was twice requested to supply the name and telephone number of the person with the Toronto Police Force who could assist in providing a copy of the printed material alleged to be child pornography. Both times he promptly complied.

Affidavit Re History of Matter, page 4

On his own initiative, the Applicant scheduled a judicial pre-trial with the trial coordinator for the first available date.

Affidavit Re History of Matter, page 7

The Applicant sought the earliest available trial date with the trial coordinator when the trial was scheduled. In assessing prejudice, "[t]he fact that an accused sought an early trial date will also be relevant."

Affidavit Re History of Matter, Page 7

Affidavit Re History of Matter, Exhibit "X"

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 24 (S.C.C.)

The Applicant promptly obtained and reviewed the disclosure, promptly requested further disclosure, and promptly responded to the Crown's letters and requests.

Affidavit Re History of Matter

The Applicant sent numerous letters to the Crown advising the Assistant Crown Attorney dealing with the matter of the new court dates and reminding the Crown of the material that was outstanding.

Affidavit Re History of Matter, Exhibits "E" and following

The Applicant requested an early assignment of an Assistant Crown Attorney.

Affidavit Re History of Matter, Pages 7 and 8

Affidavit Re History of Matter, Exhibits "X" and "Y"

d. Prejudice to the Applicant ─ iii. Direct Evidence of Prejudice

26. It is respectfully submitted that the Applicant has suffered prejudice to his security interest. It is further submitted that this Honourable Court may rely upon that type of prejudice, as explained by His Lordship Mr. Justice Sopinka:

Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to ‘the vexations and vicissitudes of a pending criminal accusation’

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 24 (S.C.C.)

27. It is respectfully submitted that pending criminal charge has caused the Applicant significant stress and anxiety.

Affidavit of the Applicant, Application Record, Tab 3

d. Prejudice to the Applicant ─ Conclusion

28. The Applicant's direct evidence of prejudice is buttressed, firstly, by the inference that may be drawn as a result of the length of the delay, and, secondly, as a result of the Applicant's actions. These actions demonstrate a desire for a timely trial on the merits. Considering the totality of above factors, it is respectfully submitted that this Honourable Court ought to find that the Applicant has suffered prejudice as a result of the delay.

Conclusion

29. The Applicant submits that the delay in this matter can be broken down as follows:

Total delay: 17 months; 26 days
Waiver of time periods: none
Inherent time requirements: 2 months
Delay due to the Applicant's actions: none
Delay due to Crown's actions: 10 months; 28 day
Institutional Delay: 4 months; 29 days
Other reasons for delay: none

30. In conclusion, the Applicant respectfully submits that, having regard to the totality of factors this court must consider, the delay in bringing this matter to trial is unreasonable, and resulted in a breach of the Applicant's rights under subsection 11(b) of the Charter.

PART IV - ORDER REQUESTED

31. It is respectfully requested, therefore, that these proceedings be stayed pursuant to subsection 24(1) of the Charter.

RESPECTFULLY SUBMITTED THIS 21ST DAY OF MARCH 1999.

Craig Penney, Counsel for the Applicant

PART V - AUTHORITIES TO BE CITED R. v. Meier, [1998] O.J. No. 3489, (Ont. Ct (P.D.)) Moore J.R. v. Burgess, [1997] O.J. No. 1056 (Ont. Ct (P.D.)) Ray J.R. v. Sharma, [1993] O.J. No. 354 (Ont. Ct (P.D.)) Vaillancourt J.R. v. Thorburn, [1993] O.J. No. 4150 (Ont. Ct (P.D.)) Starr J.R. v. Wadas, [1992] O.J. No. 2498 (Ont. Ct (G.D.)) Belleghem J.R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) R. v. Askov (1991), 59 C.C.C. (3d) 49 (S.C.C.)

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