Crown:  H. Song, Office of the Crown Attorney, Toronto
Defence:  Craig Penney, Child Pornography Lawyer, Toronto

¶ 1  THE COURT:  Well, obviously, the time it took for this trial to get on is relevant, but I do not think it is as relevant as the time it took for disclosure to be given. If these rights mean anything, they have to be rights that are enforced.

¶ 2  The court has to look at these matters, not only with the dicta of previous cases, but also with a little common sense; that the minimal time required for disclosure and for the obvious delay necessitated by the limitations of the institution and of the office of the Crown, all that I guess hinges on the complexity of the case and the involvement of the time it takes to complete the investigation; the time it takes if there are separate agencies that the police have to depend on to get opinions and the wait involved with that; obviously, that has to be factored in.

¶ 3  Here, I do not think there is any issue. This is a fairly simple, straightforward case. The materials have been seized; the investigation really, in essence was complete within that one day.

¶ 4  The vast majority, as I see it, from the submissions that are made today in front of me, the vast delay, the over 10 months and 26 days, according to the defence, was not because it took a long time for the police to do the investigation, but it took a long time for this matter to be processed within the Crown's department to get instructions to the police. Once the police were advised to do the disclosure, to do the photostatting or the photocopying, if it was the police, it was done.

¶ 5 The problem, as I see it here, was the delay in either an assignment of a Crown that could concentrate on this, or the loss of this file within the department of the Crown Attorney; and I guess I really have to decide whether that length of time is sufficient to place the administration of justice into disrepute and allow me to stay or require me to stay.

¶ 6  I appreciate that the bottom line here is that it is in the public interest to decide cases on the merits rather than on pre-trial motions; but on the other hand, there are rights that are within the Charter, that in order for them to mean anything they should be enforced.

¶ 7  I am going to take an early morning recess. I want to go over some of the documentation here. Say a half hour.

¶ 8  MR PENNEY:  Thank you. Your Honour.

¶ 9  THE COURT:  Certainly, the amount of the delay is sufficient to trigger the investigative process with respect to whether or not there should be a stay or a breach of the 11(b) rights.

¶ 10  I am concerned not only with the total delay, which is a huge amount of time, but also the length of time that the Crown took to respond to the disclosure.

¶ 11  Now, I do not disagree or agree with the Crown when they talk about whether or not that disclosure, or the request for disclosure was relevant in respect to the full answer and defence, but there is a process here. If, in fact, defence requires or requests disclosure of a particular aspect which the Crown feels is irrelevant, then the Crown should notify the defence and say, "Hey, we are not going to give you this because it is irrelevant." Now, what that does is it puts the defence on notice, defence then can move before a court to decide that and get a judicial determination. Certainly, I do not think anyone envisages a right of the Crown, or of the defence, to make a decision, and by that decision then not have to give the disclosure. It seems to me that if the Crown disagreed with some aspect or some facet of the disclosure that was requested, that they should have, in a timely manner, advised defence that this is not relevant, or that we do not have it, or whatever. There is a dialogue that is supposed to be opening here, and that was not done, it was just ignored, or the document was lost, or there was no Crown assigned, and it seems to me that that factor is the factor that has persuaded me to grant the motion.