R. v. Sammut, 2012 ONCJ 559

Court File and Parties

Court File No.: Brampton 11-7083 Date: September 7, 2012 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Sandra Sammut

Before: Justice Richard H.K. Schwarzl

Heard on: March 26 and August 13, 2012

Reasons for Judgment released on: September 7, 2012

Counsel:

• Mr. V. Aujla, for the Crown
• Mr. D. Lent, for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

1On June 1, 2011 Sandra Sammut was driving in Brampton just before 11:00 p.m. when she rear-ended a motorcycle at the intersection of Sandalwood and Sunforest Streets in Brampton. As a result of the police investigation into the collision, Ms. Sammut was charged with impaired driving and with driving with excess blood alcohol.

2Ms. Sammut has pled not guilty to each charge. Several issues were raised including (a) whether the Crown has proven that Ms. Sammut's ability to operate a motor vehicle was impaired by the consumption of alcohol, (b) whether the police had grounds to make the demand that led to the breath test results, and (c) whether Ms. Sammut was tried within a reasonable time.

2.0: FACTS

3At around 10:50 p.m. on June 1, 2011 Mr. Patrick Hache was driving his motorcycle westbound on Sandalwood when he stopped in a through lane at a red light at the well-illuminated intersection of Sunforest. Just as the light turned green, and without any warning of any kind, his motorcycle was hit at an angle from behind causing him to be vaulted over his handlebars. When he got up, Mr. Hache saw Ms. Sammut's car partially on top of his motorcycle, with one of her wheels lifted off the ground. As a result of the collision, Mr. Hache suffered soreness that laid him up for two weeks and his motorcycle was written off.

4Right after the collision, Ms. Sammut got out of her car, ran over to Mr. Hache and apologized for striking his motorcycle. He told her he was calling the police and did so while Ms. Sammut returned to her car and sat in the driver's seat. Other than this brief encounter, Mr. Hache had no contact with Ms. Sammut and he made no observations as to her sobriety. An off-duty officer arrived within five minutes of the collision and uniformed officers attended within ten to fifteen minutes after being called.

5The off-duty officer who happened upon the scene was P.C. Matthew Calgani. He was on his way home in his personal vehicle when he saw Ms. Sammut's car pinning down Mr. Hache's motorcycle. He stopped behind Ms. Sammut's car and noticed her in the driver's seat. P.C. Calcagni immediately went over to Mr. Hache to make sure he was alright and to ask him what happened. Mr. Hache told P.C. Calcagni that he was rear-ended at the stop light and that he was OK except for some soreness.

6After speaking to Mr. Hache, P.C. Calcagni approached Ms. Sammut. After the officer showed her his badge, he asked her if she was alright. Ms. Sammut told him that she didn't know what happened, only that she didn't see the motorcycle and next thing there was an accident. While speaking to Ms. Sammut in her car, P.C. Calcagni noted that her breath smelled of alcohol, her eyes were watery and bloodshot, and the baseball uniform she wore appeared disheveled. As she got out of her car, the officer noticed that she needed both hands to stabilize herself. While speaking to Ms. Sammut, P.C. Calcagni noticed that she was fidgety and avoiding eye contact with him. At first she denied drinking any alcohol but when confronted by P.C. Calcagni she admitted to drinking two beers at her baseball game. Following his directions, Ms. Sammut turned off her car and gave the keys to P.C. Calcagni, who then put them on the roof of her vehicle.

7After speaking with both drivers, P.C. Calcagni called for assistance from the police and an ambulance. While he was on the phone, he observed Ms. Sammut spray perfume or air freshener into her mouth as she stood outside her car. When asked why she did that, she told P.C. Calcagni that she didn't know what he was talking about while putting the spray container in her purse. She then started smoking and put either gum or a mint into her mouth.

8P.C. Calcagni had no further interaction with either driver but stood by waiting for the police and ambulance to arrive. When the investigating officer, P.C. Alexandra Moore got to the scene at 11:08 p.m. she spoke with P.C. Calcagni after checking that both drivers were safe. He told her that Ms. Sammut was the driver who hit Mr. Hache and that after noticing her breath smelt of alcohol she sprayed her mouth with something. P.C. Moore then spoke with Ms. Sammut who said that she hadn't seen the motorcycle. P.C. Moore believed that the collision had happened in the turn lane, when in fact it was in the through lane.

9P.C. Moore made a number of direct observations of Ms. Sammut including:

(a) Her eyes were very watery and red-rimmed;

(b) When the officer tried to get close, Ms. Sammut moved away; and

(c) Ms. Sammut admitted to drinking two beers earlier.

10At 11:14 p.m., and based on the totality of the circumstances, P.C. Moore formed the belief that the ability of Ms. Sammut to operate a motor vehicle was impaired by the consumption of alcohol and arrested and handcuffed her for that offence. Ms. Sammut lost her balance when being placed in the rear of P.C. Moore's cruiser. However, Ms. Sammut did not display any other obvious loss of physical coordination nor was her speech slurred.

11Between 11:15 and 11:20 P.C. Moore provided Ms. Sammut with her rights to counsel, a breath demand and a primary police caution. After appearing to have difficulty in grasping some aspects of her rights to counsel, Ms. Sammut indicated that she wished to speak with duty counsel.

12After gathering some other collision-related information, P.C. Moore left the scene with Ms. Sammut at 11:30 and drove directly to the nearest police station, arriving there at 11:45. While Ms. Sammut was being booked, P.C. Moore called Duty Counsel at 11:47 p.m.

13Duty Counsel called the station at midnight. Ms. Sammut spoke to the lawyer in private until 12:09 a.m. at which time P.C. Moore was waiting for the qualified technician, P.C. Julie Dwyer, to complete preparations of the approved breath-testing instrument.

14At 12:22 a.m. P.C. Moore completed providing her grounds to P.C. Dwyer.

15At 12:31 a.m. P.C. Moore turned Ms. Sammut over to P.C. Dwyer who then received and analyzed two suitable samples of Ms. Sammut's breath given directly into the approved instrument. The first sample was taken and analyzed at 12:31 a.m. with a blood alcohol concentration of 110 milligrams of alcohol in one hundred millilitres of blood. The second sample was taken and analyzed at 12:53 with a blood alcohol concentration of 105 milligrams of alcohol in one hundred millilitres of blood.

16P.C. Dwyer made observations of the Accused as follows: the odour of alcohol was present on her breath, her cheeks and nose were flushed, her eyes were red-rimmed, and her speech was good. P.C. Dwyer also noted that Ms. Sammut displayed no problems with her balance or coordination.

17At 2:58 a.m. Ms. Sammut was served with copies of the appropriate documentation and she was released at 3:05 a.m. after having been further charged with driving with excess blood alcohol.

3.0: ISSUES

3.1: Has the Crown proven that P.C. Moore had reasonable grounds to make a breath demand?

3.1.1: Positions of the Parties

18The defence submits that in the totality of the circumstances, P.C. Moore could not have had reasonable grounds to believe that the ability of Ms. Sammut to operate a motor vehicle was impaired by the consumption of alcohol due to the absence of poor balance, poor or slurred speech, and no information when Ms. Sammut consumed her two beers. The defence submits that at the highest, P.C. Moore may have had a reasonable suspicion that Ms. Sammut had operated a motor vehicle with alcohol in her body, but this falls short of justifying the breath demand that the officer made. The defence relies upon authorities including R. v. Leonardo, 2009 ONCJ 507 and R. v. Winter, 2010 ONCJ 147 . The defence submits that in light of what they say is an invalid breath demand, the breath test results amounted to an unlawful search and seizure and should be excluded from the evidence.

19The Crown submits that P.C. Moore had both an honest and an objectively justifiable belief that Ms. Sammut's ability to drive was impaired by the consumption of alcohol, relying on R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) and R. v. Bush, 2010 ONCA 554 . The Crown submits that even if the breath demand ran afoul of Ms. Sammut's right under section 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable searches and seizures, the breath tests should not be excluded from the evidence.

3.1.2: Applicable Legal Principles

20Grounds to arrest must be honestly and subjectively held by the officer and his honest belief must be objectively justified: R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.); R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at p. 216; R. v. Shepherd, 2009 SCC 35 ; and R. v. Bush, 2010 ONCA 554 .

21The officer is not required to establish a prima facie case for conviction before making the arrest, or to consider all of the alternative explanations for the observed conduct: R. v. Mitchell, [2004] O.J. No. 435 (S.C.J.) at ¶ 10; R. v. Bush, 2010 ONCA 554 . The reasonable grounds test is not intended to be an onerous one, and must not be inflated to the context of testing trial evidence, but neither must it be so diluted as to threaten individual freedom: Bush, supra at ¶ 46.

22"Reasonable grounds" is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly. The test is whether, objectively, there were reasonable grounds to believe the suspect's ability to drive was impaired, even slightly, by the consumption of alcohol.

23The Court must consider the totality of the evidence for the witness' reasonable ground to believe the subject is impaired, not any individual sign on its own: R. v. Huddle, 1989 ABCA 318 ; R. v. Saulnier, [1990] B.C.J. No. 161 (C.A.); R. v. Elvikis, [1997] O.J. No. 234 (Gen. Div.) at ¶ 24; R. v. McMillan, [2003] O.J. No. 4284 (S.C.J.).

24The fact that some of the traditional indicators of impairment, such as slurred speech and bloodshot eyes, were not present does not render the officer's subjective belief, based on the signs he did observe, objectively unreasonable: R. v. Wang, 2010 ONCA 435 , [2010] O.J. No. 2490 (C.A.) at ¶ 21.

3.1.3: Analysis

25As Justice O'Donnell noted in R. v. Bhogan, [2010] O.J. No. 4108 at ¶ 20, every case is "a prisoner of its own facts and of that court's own impressions of the credibility and weight to be given to the witnesses. The reality is that every assessment of reasonable grounds for belief constitutes a piling on of factors that either do or do not satisfy the test." While I accept the analyses made by the learned trial judges in both Leonardo and Winter, supra, I believe this case is distinguishable on its facts. I also note that neither of these decisions had the benefit of the Court of Appeal's guidance as set out in R. v. Bush.

26In the case before me, I found P.C. Moore to be a good witness. Even though she mistakenly thought the collision was in the turn lane, this was a minor detail. The officer never overstated or exaggerated her evidence. She was a fair and honest witness. I have confidence that her evidence on the core issues was both credible and reliable.

27P.C. Moore based her grounds to believe Ms. Sammut was impaired by alcohol on the following factors known to her at the time:

a) She was told by P.C. Calcagni that Ms. Sammut was the driver who rear-ended Mr. Hache;

b) She was told by P.C. Calcagni that Ms. Sammut smelled of alcohol and had sprayed her mouth;

c) Ms. Sammut told P.C. Moore that she hadn't seen the motorcycle;

d) P.C. Moore noticed Ms. Sammut's eyes were red-rimmed and watery;

e) Ms. Sammut appeared to avoid close contact with P.C. Moore; and

f) Ms. Sammut told P.C. Moore that she had been drinking beer earlier.

28I find that that in a situation where (a) there has been a collision in which the at-fault driver who admits to drinking alcohol says she did not see the vehicle in front of her at a well-lit intersection and (b) that driver smells of alcohol and takes steps to cover it up with mouth spray and avoids the officer who is trying to investigate what happened, it would be reasonable for anybody, including P.C. Moore, to conclude that the driver was impaired by alcohol notwithstanding the absence of other signs of overt intoxication.

29I find that the prosecution has proven that the breath demand made by P.C. Moore was lawful. The application to exclude the breath readings is dismissed. The offence of driving with excess alcohol has been made out to the requisite criminal standard of proof.

3.2: Has the Crown proven that the ability of Ms. Sammut to operate a motor vehicle was impaired by the consumption of alcohol?

3.2.1: Positions of the Parties

30The defence submits that there ought to be a reasonable doubt regarding Ms. Sammut's alleged impairment by alcohol to drive safely. The defence cites the absence of poor balance, poor speech both at the roadside and in the breath as factors which undermine a finding of impairment beyond a reasonable doubt.

31The prosecution submits that on the totality of all the evidence, including the rear end collision, the odour of alcohol on Ms. Sammut's breath, her red eyes, and her apparent efforts to mask her breath that the inescapable conclusion must be that she was too intoxicated to drive.

3.2.2: Applicable Legal Principles

32Impairment by alcohol of one's ability to operate a motor vehicle to any degree ranging from slight to great, establishes the offence: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.) at p. 384; aff'd (1994), 90 C.C.C. (3d) 160 (S.C.C.); R. v. Moreno-Baches, 2007 ONCA 258 .

33The phrase "slight impairment" has been interpreted to mean "a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like": R. v. Censoni, [2001] O.J. No 5189 at ¶ 47 (S.C.J.).

3.2.3: Analysis

34In assessing the evidence as a whole, I find the situation highly suspicious. That is to say, the collision, the red eyes, the slight balance problems, the odour of alcohol and the post-offence conduct of masking her breath and evading the officers all tend to migrate towards a finding of impairment. On the other hand, sober drivers are also frequently responsible for running into other motorists. Ms. Sammut's post-offence conduct of masking her breath is equally consistent with a desire to hide that she was drinking at all as it is with a consciousness that she had consumed too much alcohol to drive safely. Finally, the absence of any material deficit in Ms. Sammut's physical and mental coordination both at the scene and at the station is another factor I take into consideration.

35While earlier in my reasons I found that the police were reasonable in believing that Ms. Sammut was impaired, having considered and then reconsidered all of the evidence, I am left in a state of reasonable doubt that Ms. Sammut's ability to operate a motor vehicle was impaired by the consumption of alcohol due to the equivocal nature of the evidence.

3.3: Was Ms. Sammut's trial heard within a reasonable time?

3.3.1: Facts

36Ms. Sammut was involved in an alcohol-related collision on June 1, 2011 and she was charged within hours of the events. She was released unconditionally by means of a Promise to Appear that fixed June 15, 2011 as her first appearance in court. Ms. Sammut appeared personally on June 15, 2011. At that time, she was provided with disclosure. Her request to adjourn the matter for one month so that she could review the material and retain counsel was granted.

37On July 13, 2011 Ms. Sammut appeared by way of agent, Ms. Christie Lent who is Mr. Lent's assistant. Ms. Lent informed the court that a resolution meeting between Crown and defence counsel had been arranged for July 18, 2011. Ms. Lent adjourned the matter to July 20, 2011 at which time a one day trial was fixed for March 26, 2012. The first two dates offered by the court to the parties were March 22 and 23, 2011. The defence was available for March 22, but the Crown was not. Neither party was available for March 23, 2011. When the trial date was set, Ms. Lent filed a letter dated July 19, 2011 setting out her principal's available dates. Mr. Lent was not in a position to conduct the trial until October 12, 2011. He was, however, available on fifty-nine other dates between October 12, 2011 and March 26, 2012.

38On March 26, 2012 this matter was moved from its assigned court room and was placed in a holding pattern until a judge was available. It was traversed to my court room at approximately 11:00 a.m. as I was in a position to adjudicate the matter at that time. Counsel for both sides informed me that they wished to discuss some issues together. After giving counsel time, the trial commenced at 11:40 a.m. The Crown had four witnesses to call and the defence brought claims for relief pursuant to sections 8, 10(a) and 10(b) of the Charter. The defence anticipated calling Ms. Sammut as a witness on the Charter applications and to show the half-hour breath room video.

39By 3:50 p.m. on the first trial date, two prosecution witnesses were completed and a third was well into cross-examination. However, I stopped the evidence at that time because there was not enough time for Mr. Lent to introduce and watch the breath room video and then schedule a continuation date before the court closed at 4:30. Both counsel estimated that a further half-day would be needed to complete the matter.

40When counsel asked the trial coordinator's office for a half-day continuation, they were offered four dates: July 13, August 7, August 9, and August 13, 2012. The only date of those offered by the court that the defence was available was August 13. The only date the Crown was not available was August 7. Mr. Lent was not available until June 4, but between then and August 13 he was available on ten other days.

41When I remanded the case, I asked Mr. Lent if he had instructions regarding an application pursuant to section 11(b) of the Charter. He said that he required some time to consider the matter and advise Ms. Sammut. Having fixed August 13, 2012 as the return date, I also adjourned the matter to April 18 for Mr. Lent to inform me as to his instructions.

42On April 18, 2012 Mr. Lent told me that his client had instructed him to advance a claim that her right to be tried within a reasonable time had been breached. Accordingly, the entire date of August 13 was set aside, both to conclude the trial proper and for the parties to argue the 11(b) Charter application.

43When the trial resumed on August 13, 2012, Mr. Lent adduced only a portion of the breath room video, having decided it was unnecessary to introduce the full length of it. After the Crown's case was completed, Mr. Lent informed me that he was abandoning his client's section 10(a) and 10(b) Charter applications. He also decided to call no evidence on the remaining section 8 Charter application. The trial evidence and submissions were concluded within two hours of commencing on the second trial date. The total time to try the case was just shy of five hours.

3.3.2: Positions of the Parties

44Ms. Sammut submits that had her case been assigned a dedicated court room on the first trial date, the case would have been heard in its entirety without the need for a second day. She submits that the overall delay, and particular the prejudice she cites in her materials, has resulted in an infringement of her right to be tried within a reasonable time.

45The Crown argued that when one takes into account the restrictions on Mr. Lent's calendar of available dates, that Ms. Sammut's trial was held within a reasonable time.

3.3.3: Applicable Legal Principles

46All citizens enjoy the right to be tried within a reasonable time as enshrined in section 11(b) of the Canadian Charter of Rights and Freedoms. It is presumed that the state has respected that right and the burden is on the Applicant to establish on a balance of a probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.).

47There is no cut-off or stale date at which the length of the trial process becomes automatically unreasonable. The determination of whether a delay has been unreasonable requires an assessment of the entire time from the time of the charge to the end of the trial: R. v. Morin, supra at ¶ 32 – 36.

48Some delay in bringing a matter to trial is inevitable. In assessing whether the entire time is unreasonable, courts must balance a myriad of factors identified by the Supreme Court in Morin, supra. Those factors are:

(i) The length of the delay;

(ii) The waiver of any delay by the Applicant;

(iii) The reasons for the delay, including:

a) The inherent time requirements of the case;

b) The actions of the Accused/Applicant;

c) The actions of the Crown including the police;

d) Limits on institutional resources; and

e) Other reasons for delay; and

(iv) Prejudice to the Applicant caused by the delay.

3.3.4: Analysis of the Morin factors

(i) Length of the Delay

49The total time from the alleged offence date to the completion of the trial was 14.5 months. This time period justifies further inquiry as to the reasons for the delay.

(ii) Waiver of Delay

50Ms. Sammut has not explicitly waived any delay in this case.

(iii) Reasons for the Delay

(a) Inherent Time Requirements

51The concept of "inherent time requirements" encompasses four different aspects: (a) the intake period of the case; (b) the court time required to try the case; (c) adjournments required to find additional court time to try the case when the initial time estimates prove inaccurate; and (d) the complexity of the case. The inherent time requirements of a case are considered neutral in the 11(b) analysis and are not included in systemic delay: R. v. Ferguson; R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.).

Intake

52In this case, the intake period was one and three-quarter months, being June 1 to July 20, 2011 which was the time between the laying of the charges and the setting of the first trial date.

Court Time to Try the Case

53At the resolution meeting prior to setting the first trial date, it was agreed between Mr. Lent and Crown counsel that the case would take one day to adjudicate. This estimate was made in the face of the Crown case comprising three police officers and one civilian together the defence case advancing Charter applications under sections 8, 10(a) and 10(b) with one witness plus showing a one-half hour breath video.

54In Brampton the court day in Ontario Court commences at 10:00 a.m. and concludes at 4:30 p.m. Out that six and one-half hour period, it has been the custom for many years to take a twenty minute recess in the morning, an hour and a-quarter lunch, and another twenty minute recess in the afternoon for a total of 115 minutes, or nearly two hours in breaks. Therefore, a court day in Peel Region allows for just four and a-half hours of actual litigation. Where cases do not complete within a court date, additional court time (as often as half an hour) is lost when counsel have to attend the trial coordinator's office to find continuation dates.

55Since the advent of the Charter nearly thirty years ago, trial time for many cases involving Charter claims, particularly in drink-drive cases, has ballooned. It is common in Peel Region that drink-drive cases with Charter issues take more than one court day to litigate. In the very recent decision of R. v. Purewal, unreported decision of S. Clark, OCJ (Docket No. 10-4101) August 27, 2012 the learned judge noted at paragraph 82 that "the time has come where virtually all drinking/driving cases should be set for two days, minimum regardless." I agree with this assessment.

56On March 26, 2012, the trial started at 11:40 a.m. Taking off the usual twenty minute morning break, the parties lost just over an hour of litigation time before the trial started. By the time the parties went to the trial coordinator's office just before 4:00 o'clock, three hours of evidence had been consumed by only two and a-half prosecution witnesses. The trial proper was able to conclude within a couple of hours on the second trial date for several reasons, including the increased efficiency in which the evidence was led compared to the first day, the tactical decision of Mr. Lent to limit the viewing time of the breath room video, and Mr. Lent's abandonment of the section 10(b) Charter application which eliminated him having to call his client as originally planned.

57In light of all that occurred on both days, this trial took about five hours of actual court time, which is more than a court day in Brampton would allow. It was thus unlikely that this trial would have finished on the first trial date, even if it had started promptly at 10:00 a.m. This is especially true had the case not been streamlined by counsel on the second date.

Adjournments to find additional time to try the case

58Since the case did not conclude on the original trial date, it was necessary to find another half-day to finish this case. It is now clear that had the defence shown the entire video and had it not abandoned its sections 10(a) and 10(b) Charter applications, more than an additional half-day would have been necessary to complete the case.

Complexity of the case

59This case involves two charges of drinking and driving offences. It involves a civilian witness for the prosecution in addition to the usual police witnesses. It involves claims that three of the Applicant's rights (8, 10(a) and 10(b)) were violated at the time of the investigation. There are legal issues including the issue of impairment. Thus, there are some complexities to the matter that elevates it beyond a straightforward case. This was a case that would warrant more, and not less, time to try by its nature and characteristics. In my experience trying similar cases, a day and a-half would have been appropriate to book at the outset.

(b) Actions of the Applicant

60Ms. Sammut submits that she has done nothing to cause the delay. She submits that she has acted promptly to move the matter on to trial by setting a trial after being in the system for a less than two months. She submits that on the first trial date she was ready and able to commence at ten o'clock and complete the case by 4:30.

61It is difficult to ascribe any overt actions in court by Ms. Sammut that contributed to the overall delay. Having said that, the trial estimate of only one day for a five witness drink/drive trial with legal and Charter issues seems to have been unduly optimistic given Mr. Lent's experience in dealing with similar cases in the past. But for the self-imposed constriction of time by the defence of not watching the whole breath room video and by withdrawing a significant Charter claim, there was no reasonable prospect of this case being started and finished within a single court day.

(c) Actions of the Crown

62The prosecution bears equal responsibility alongside the defence for severely underestimating the time required to try this case. The Crown who conducted the resolution meeting in July 2011 was well aware of the length of a court day in Peel Region. The Crown, like Mr. Lent, agreed to set a single day trial for a case like this one when they knew, or ought to have known, that it would likely take more than one day even if it had started at ten o'clock.

63In my view, the collective actions by both parties in not allowing for more than one day of trial time in light of the issues and evidence they identified prior to setting the trial time accounted for a month of the overall delay.

(d) Limitations on Institutional Resources

64Ms. Sammut submits that limitations on institutional resources contributed to an unreasonable delay of his trial. She submits that she was always ready and able to move the case forward quickly. She submits further that she was denied the opportunity to begin her case at ten o'clock by being bumped from her assigned trial court to the so-called TBA Court. In support of this proposition, Ms. Sammut relies on the cases of R. v. McBride, [2012] O.J. No. 1077 (O.C.J.) and R. v. Weatherby, an unreported decision of Mme. Justice L. Botham, O.C.J. dated January 27, 2012.

65The Crown relies on the appellate level decisions of both R. v. Lahiry, 2011 ONSC 6780 and R. v. Tran, 2012 ONCA 18 that the court must consider when the defence counsel was available when analysing the limits on institutional resources, as each influences the overall delay.

66With respect to being ready to proceed without delay, when the defence was in court on July 20, 2011 to set the trial date of March 26, counsel was not available for trial until after October 12, 2011. Ms. Sammut's counsel of choice was unavailable to try the matter until at least two and three-quarter months had passed. Similarly, when a continuation date was set on March 26, 2012 Mr. Lent was not available until June 4, a passage of two and a-quarter months. Therefore, when looking at the overall time period of fourteen-plus months, the defence was not available for five of those months. Balancing this time against the failure of both sides to properly estimate accurate trial time, I find that Mr. Lent's unavailability contributed to four months of the overall delay.

67On the other hand, Mr. Lent was clearly available and ready to proceed on nearly sixty days between October 12 and March 26, 2012. The court system did not have the resources during that five and a-half months to find a trial date for Ms. Sammut. Likewise, between June 4 and August 13 Mr. Lent was available for ten other dates in that period. Thus, the two and a-quarter months between June and August was due to a lack of institutional resource. In total, inadequate institutional resources contributed seven and three-quarter months to the overall delay.

68In Peel Region, the guideline for bringing a matter to trial in Ontario Court is eight to nine months of institutional delay: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.) affirmed ; R. v. Rego; R. v. Reed, [2005] O.J. No. 5618 (S.C.J.).

69A guideline, by definition, is not a bright line or hard-and-fast rule: R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.). I disagree with the Applicant that the majority of the delay was caused by limits on institutional resources. There was a total systemic delay of seven and three-quarter months in this case. Much of the overall delay was caused by both the unavailability of counsel and an adjournment required to find additional court time when the initial time estimates were inaccurate, even though the proceedings eventually were streamlined on the second day: R. v. Allen, supra; R. v. Qureshi.

70To reiterate: this case was brought before me at 11:00 but did not start until 11:40. Even if the matter was placed before a judge and the evidence had started promptly at ten o'clock, it was not going to be finished due to the initial time estimate of one day which I find was overly optimistic.

(e) Other Reasons for Delay

71I am not able to find any other reasons for delay beyond the ones I have already discussed.

(iv) Prejudice

72Ms. Sammut submits both general and specific prejudice due to the delay in concluding this matter within eighteen months. The Crown submits that the Applicant has suffered no prejudice that would attract any remedy by this court.

General Prejudice

73Section 11(b) of the Charter is designed to guard against prejudicing a person's rights to liberty, security of the person, and to make full answer and defence: R. v. Godin, 2009 SCC 26 . In the case at bar, it is the second and third rights that must be assessed.

74Prejudice to these rights can be inferred the longer the overall delay. Delay, in and of itself, can be expected to have a detrimental effect on a fair trial: R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689 . Suffering the effects of overloading court lists can, with evidence of the overloading being led, cause prejudice: R. v. Barnes, [2003] O.J. No. 3217 (O.C.J.); R v. Yorke, unreported decision of Cowan, O.C.J. (March 9, 2007); R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.); and R. v. Weatherby, supra.

75Prejudice to the Applicant must be balanced with society's interest in adjudicating matters on their merits: Morin, supra at ¶ 26 – 30; R. v. Seegmiller; R. v. Kporwodu. This balancing of the Applicant's interests and society's interest in a trial on the merits is even more important where the charges are serious: R. v. Seegmiller, supra. Drinking and driving offences are serious crimes: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.).

Specific Prejudice

76In her affidavit, Ms. Sammut asserts specific prejudice by the matter not being completed on the original trial date; namely enduring an emotional roller coaster ride, suffering significant (but unspecified) legal costs, and the impact on trial fairness due to the potential of erosion of witness memories.

Assessment of Prejudice

77In assessing the general and specific prejudice alleged or inferred, much of the delay is a result of the conflict between Ms. Sammut's right to be tried within a reasonable time and her right to be represented by the counsel of her choice. Ms. Sammut hired one of the most sought after lawyers in Peel Region. Mr. Lent's unavailability for four months within the overall time frame of this case speaks loudly to his popularity as effective defence counsel.

78In her affidavit, Ms. Sammut states that since being charged she has suffered emotional stress associated with the potential penal and other consequences of conviction. This particular stress is due mainly to being charged, and not by delay itself. Accordingly such stress has a modest impact on the 11(b) analysis.

79She also says that she has suffered specific prejudice from having to pay legal fees for more than one trial date. Had counsel for the defence fully litigated all the issues as stated when the trial date was first set, one day would not have been enough meaning that Ms. Sammut was going to have to pay for more than one day of Mr. Lent's time in any event. Furthermore, in all likelihood, this case should have been set for more than one day in the first place.

80Although Ms. Sammut claimed that the passage of time may adversely affected the memory of the witnesses, this could only serve as a benefit to her, especially since she elected not to testify. I find no specific prejudice to her in this regard.

81I find that any prejudice suffered by Ms. Sammut in the totality of these circumstances to be marginal.

3.3.5: Conclusions regarding section 11(b) Charter

82In summary, my findings of the reasons for delay and their apportionment are:

• Neutral time - intake: 1.75 months
• Inadequate time estimates by both sides: 1.0 month
• Unavailability of defence counsel: 4.0 months
• Limits on Institutional Resources: 7.75 months
• Total Delay: 14.5 months

83In deciding whether or not the delay in this case was unreasonable or not, I have taken into account the following:

(a) The actions of both sides contributed to the delay. The Crown and the defence should not have originally estimated this case would start and finish in one day given the issues and evidentiary logistics initially involved. The ultimate streamlining of this case does not alter the reality that this case should have been booked for more than one day;

(b) Ms. Sammut's counsel of choice was not available for a significant period within the relevant time frame;

(c) Systemic delay was within the guidelines for Peel Region; and

(d) The prejudice to Ms. Sammut was minimal in all of the circumstances.

Balancing all of the factors set out by the Supreme Court in Morin, I find that Ms. Sammut has failed to establish on a balance of probabilities that the delay between June, 2011 and August 2012 is unreasonable in all of the circumstances. Her application under section 11(b) of the Charter is dismissed.

4.0: CONCLUSIONS

Ms. Sammut's Charter applications are dismissed.

84The Crown has failed to prove beyond a reasonable doubt that Ms. Sammut's ability to operate a motor vehicle was impaired by the consumption of alcohol, accordingly I find her not guilty of the charge of impaired driving.

85I find that the Crown has proven beyond a reasonable doubt that Ms. Sammut was operating a motor vehicle with more than the legal concentration of alcohol in her blood when she collided with Mr. Hache's motorcycle. Therefore, I find her guilty of count two.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice