Ruling on Subsections 11(b) and 24(1) Application

Court File No.: Halton – Milton Certificate of Offence no. 1260-3788757A

Date: 2012-02-21

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Marcin Gregorczyk

APPLICATION UNDER SUBSECTIONS 11(b) AND 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Before: Justice of the Peace Kenneth W. Dechert

Heard on: January 9th, 2012, January 13th, 2012 and January 18th, 2012

Reasons for Judgment released on: February 21st, 2012

Provincial Offences Court – Milton, Ontario and Burlington, Ontario

Counsel:

• J. Stewart for the prosecution
• J. Bonin of Redline Legal Services Professional Corporation, representative for the defendant Marcin Gregorczyk

Statutes, Regulations and Rules Cited

• Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, ss. 11(b) and ss. 24(1)
• Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, s. 109; and the Rules of Civil Procedure under the Courts of Justice Act, Form 4F
• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to February 28th, 2010, s. 128
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to February 28th, 2010, Part I

Cases Cited

• Barker v. Wingo, 407 U.S. 514 (1972)
• Mills v. The Queen, [1986] 1 S.C.R. 863 (S.C.C.)
• Regina v. Allen, [1996] O.J. No. 3175 (Ont. C.A.)
• Regina ex rel. City of Toronto v. Andrade, 2011 ONCJ 470 , [2011] O.J. No. 4245 (Ont. C.J.)
• Regina v. Askov, [1990] 2 S.C.R. 1199 (S.C.C.)
• Regina v. Aujla, 2010 ONCJ 531 (Ont. C.J.)
• Regina v. Beason, 36 C.R. (3d) 73 (Ont. C.A.)
• Regina v. Bennett, [1991] O.J. No. 884 (Ont. C.A.)
• Regina v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.)
• Regina v. Donaldson, 2010 ONCJ 3 (Ont. C.J.)
• Regina v. Farokhshadfar, [2001] O.J. No. 6015 (Ont. C.J.)
• Regina v. Fortuin, [2004] O.J. No. 4965 (Ont. C.J.)
• Regina v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3 (S.C.C.)
• Regina v. Harrison, [1991] O.J. No. 881 (Ont. C.A.)
• Regina v. Hawkins, 6 O.R. (3d) 724 (C.A.); aff'd Regina v. Hawkins, 11 O.R. (3d) 64 (S.C.C.)
• Regina v. Hussain, [2005] O.J. No. 158 (Ont. C.J.)
• Regina v. Jamieson, 64 C.C.C. (2d) 550 (Ont. C.A.)
• Regina v. Kalanj, [1989] 1 S.C.R. 1594 (S.C.C.)
• Regina v. Lahiry, 2011 ONSC 6780 , [2011] O.J. No. 5071 (Ont. Sup. Ct.)
• Regina v. MacDougall, [1998] 3 S.C.R. 45 (S.C.C.)
• Regina v. Morin, [1992] 1 S.C.R. 771 (S.C.C.)
• Regina v. N.N.M., [2006] O.J. No. 1802 (S.C.C.)
• Regina v. Omarzadah, [2004] O.J. No. 1802 (Ont. C.A.)
• Regina v. Philp, 80 C.C.C. (3d) 167 (Ont. C.A.)
• Regina v. Qureshi et al., [2004] O.J. No. 4711 (Ont. C.A.)
• Regina v. Rahey, [1987] 1 S.C.R. 558 (S.C.C.)
• Regina v. Smith, [1989] 2 S.C.R. 368 (S.C.C.)
• Regina v. Smith, [1989] 2 S.C.R. 1120 (S.C.C.)
• Regina v. Tremblay, [1987] 2 S.C.R. 435 (S.C.C.)

K.W. DECHERT, J.P. (orally)

INTRODUCTION

1Under Certificate of Offence no. 1260-3788757A the defendant/applicant Marcin Gregorczyk, hereinafter referred to as "the defendant", stands charged that he on the 28th day of February, 2010 at 12:17 p.m., at Trafalgar Road/Hornby Road in the Town of Halton Hills, did commit the offence of speeding – 111 km./hr. in a posted 70 km./hr. zone contrary to section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to February 28th, 2010, hereinafter referred to as "the H.T.A.". The procedure under Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to February 28th, 2010, hereinafter referred to as "the P.O.A.", is applicable to this proceeding.

2The trial of the subject charge was scheduled for the 17th day of November, 2010, during the 1:30 p.m. tier of cases in the Milton Provincial Offences Court.

3The trial commenced before me at approximately 2:00 p.m. on the said date. At that time the defendant appeared through his representative and upon arraignment entered a plea of not guilty to the charge. The prosecution then began to proffer evidence relative to the charge through its first witness, Police Constable Kevin Hanowski of the Halton Regional Police Service. The officer's testimony-in-chief at this time related solely to the preliminary issue of whether he should be permitted to refer to his investigative notes, during the course of his testimony in this matter, for purposes of refreshing his memory pertaining to the circumstances of the alleged offence. Following the completion of the constable's testimony-in-chief, qualifying his investigative notes, the prosecution sought the leave of the Court to allow the constable to use his notes.

4I granted the defendant's representative an opportunity to cross-examine the officer pertaining to the issue of the use of the notes by the officer during his testimony. The defendant's representative then proceeded to cross-examine the officer, following which he indicated that he was objecting to the order sought by the prosecutor relative to the issue of whether the witness should be permitted to refer to his investigative notes as an aid to his memory.

5Following the completion of the officer's testimony pertaining to this preliminary motion, I received legal submissions from both the prosecutor and the defendant's representative relative to the issues material to the motion. I then recessed the trial to review relevant jurisprudence pertaining to the subject issues and to prepare my ruling pertaining to the prosecutor's motion. Following the recess, I reconvened the trial of the matter and delivered my oral ruling pertaining to the motion.

6Upon completion of my ruling at approximately 4:08 p.m. on the said trial date, the prosecutor requested that I adjourn the trial to another date for continuation, in light of the fact that there were a number of other matters from both the 9:00 a.m. and 1:30 p.m. tier of cases which had to be addressed prior to closing the court for the day. In that regard, the prosecutor advised that she did not believe that the subject trial could be completed prior to the court closing time that afternoon. In response to the prosecutor's suggestion that the trial be adjourned to another date for continuation, the defendant's representative stated that he was ready to proceed with the trial at the subject time.

7After receiving submissions relative the prosecutor's request, I adjourned the trial of this proceeding, due to lack of court time to complete the trial that afternoon, noting that the scheduled court closing time was 4:30 p.m. The trial was then adjourned to August 9th, 2011 at 9:00 a.m., in the Milton Provincial Offences Court for continuation. In light of the fact that the defendant entered a plea of not guilty to the subject charge before me, I remained seized of the matter as the trial Justice of the Peace.

8The trial of the proceeding reconvened before me on August 9th, 2011. At that time, prior to embarking on the evidentiary phase of the subject trial, I considered the procedural sufficiency of a Notice of Constitutional Question, filed with the Court by the defendant's representative. In this document the defendant applied for a remedy from the Court under subsection 24(1) of the Canadian Charter of Rights and Freedoms, hereinafter referred to as "the Charter", relative to an alleged infringement of his right to be tried of the subject speeding offence within a reasonable time, under subsection 11(b) of the Charter.

9After receiving legal submissions relative to the issue of whether the Notice of Constitutional Question had been properly served on one of the necessary parties under subsection 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, hereinafter referred to as "the C.J.A." and ruling on the procedural issue, I was unable to proceed with either the defendant's Charter application or the possible continuation of the trial of the subject charge, due to lack of court time during the 9:00 a.m. tier of cases. As the defendant's representative was unable to return to court for the hearing of the matter at 1:30 p.m., due to a prior commitment, the continuation of the trial of the matter was adjourned at the defendant's request to January 9th, 2012 at 1:30 p.m. in the Burlington Provincial Offences Court, for trial continuation.

10On November 16th, 2011, the defendant filed a new Notice of Constitutional Question in this proceeding in the Milton Provincial Offences Court, to be argued on January 9th, 2012 at 1:30 p.m. By means of this document the defendant applied to the Court for a stay of proceedings under subsection 24(1) of the Charter, relative to his claim that his rights under subsection 11(b) of the Charter in respect of the subject charge had been infringed.

11During the afternoon of January 9th, 2012, I received submissions from the defendant's representative relative to his client's Charter application. After receiving his legal arguments, the matter was adjourned to January 13th, 2012, at 9:00 a.m. in the Burlington Provincial Offences Court, to be spoken to in order to attempt to find an early date for the completion of the hearing of the defendant's Charter application and possible trial continuation. On January 13th, 2012, the subject proceeding was adjourned to January 18th, 2012 at 1:30 p.m., in the Milton Provincial Offences Court for the completion of the hearing of the defendant's Charter application.

12On January 18th, 2012, I received submissions from the prosecutor as well as reply submissions from the defendant's representative, pertaining to the defendant's Charter application. The proceeding was then adjourned to February 21st, 2012 at 1:30 p.m. in the Milton Provincial Offences Court for my judgment pertaining to the application and for possible trial continuation at that time.

13During the hearing of the defendant's Charter application, the prosecution was represented by Ms. J. Stewart and the defendant was represented by his legal representative Mr. J. Bonin.

THE DEFENDANT'S NOTICE OF CONSTITUTIONAL QUESTION

14In a Notice of Constitutional Question dated October 12th, 2011 and filed in the Milton Provincial Offences Court on November 16th, 2011, prepared in accordance with the provisions of section 109 of the C.J.A., the defendant advised that the Notice constituted an application under subsections 11(b) and 24(1) of the Charter, for a remedy in relation to an act or omission of the Government of Ontario. He stated that the application was to be argued on January 9th, 2012, at 1:30 p.m.

15In the Notice of Constitutional Question, the defendant went on to state, in part, as follows:

The Applicant [the Defendant] intends to claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Ontario.

The following are the material facts giving rise to the constitutional question:

1. The Applicant was charged on February 28th, 2010 with the following offence:

Speeding 111 km/hr in a 70 km/hr zone contrary to s. 128 of the Highway Traffic Act court file 1260-3788757A.

2. The matter is currently scheduled for trial on January 9th, 2012.

3. The overall delay from the date the charge was laid and the currently scheduled trial date is 22 months and 12 days which is prima facie unreasonable and accordingly a section 11(b) inquiry is warranted.

4. At no time did the Applicant waive the constitutionally protected right to a trial within a reasonable time.

5. The delay in this matter is the direct result of a lack of institutional resources relative to the volume of charges to be processed in this jurisdiction and a failure by the Prosecution to provide full disclosure in a timely fashion.

16It should be noted that during the hearing of the Charter application on January 9th, 2012, the defendant's representative acknowledged that on August 9th, 2011, he explicitly waived the defendant's rights under subsection 11(b) of the Charter for the period between August 10th, 2011 and January 9th, 2012, inclusive. Furthermore, during his submissions of January 9th, 2012, the defendant's representative advised that the defendant's application for a finding that his subsection 11(b) rights in the subject proceeding had been infringed was not based on an allegation that the prosecution had failed to provide full disclosure relative to the subject charge, in a timely fashion.

THE EVIDENCE

17At the outset of the hearing of the Charter application on January 9th, 2012, I entered the defendant's Notice of Constitutional Question, dated October 12th, 2011, together with the affidavit of service of Michael Petrolo, sworn on October 12th, 2011, as exhibit #1 to the proceeding. Furthermore, the defendant's representative filed a transcript of the trial proceedings of November 17th, 2010, relative to the subject charge, with the Court, prior to January 9th, 2012. This transcript was entered as exhibit #2 to the hearing of the subject Charter application.

18Additionally, prior to receiving the submissions of the parties relative to the Charter application, I indicated that I was able to take judicial notice of the contents of the following documents which were filed with the Court in respect of the subject charge:

1. Certificate of Offence no. 1260-3788757A;

2. The defendant's Notice of Intention to Appear in this proceeding, signed on the 4th day of March, 2010 and filed in the Ontario Court of Justice P.O.A. Office at 100 Nipissing Road, Unit #2, Milton, Ontario, on March 9th, 2010;

3. The Notice of Trial in the subject proceeding as issued by the Milton P.O.A. Court on the 16th day of March 2010. This document notified the defendant that his trial of the subject charge was scheduled to take place in court room #1 in the Ontario Court of Justice, located at 100 Nipissing Road, Unit #2, Milton, Ontario, on November 17th, 2010 at 1:30 p.m. In the document, the Clerk certified that on March 16th, 2010, she sent the Notice of Trial to the defendant at his address in Georgetown, Ontario, by means of ordinary mail.

19During the course of the hearing of the Charter application on January 9th, 2012, both the defendant's representative and the prosecutor advised that they did not intend to call any witnesses to proffer viva voce evidence relative to the issues pertaining to the application. The parties indicated, however, that they wished to present legal argument making reference to common law relevant to subsection 11(b) of the Charter.

CHRONOLOGY OF EVENTS

20On February 28th, 2010, Provincial Offences Officer Kevin Hanowski personally served an Offence Notice upon the defendant charging him with an offence, which allegedly took place on the said date in the Town of Halton Hills, of speeding 111 km./hr. in a posted 70 km./hr. zone. This Offence Notice corresponded with Certificate of Offence no. 1260-3788757A, issued by Officer Hanowski. The Officer filed the said Certificate of Offence in the office of the Ontario Court of Justice, Provincial Offences Act Court, 100 Nipissing Road, Unit #2, Milton, Ontario, on March 1st, 2010.

21On March 9th, 2010, the defendant filed a Notice of Intention to Appear, being Form 7 under Regulation 950 made pursuant to the P.O.A., relative to the subject charge, in the Provincial Offences Court at 100 Nipissing Road, Unit #2, Milton, Ontario. In this document, the defendant advised, in part, as follows:

I intend to challenge the Provincial Offences Officer's evidence. I request that the officer attend the trial. … I intend to appear in court to enter a plea at the time and place set for the trial and I wish that it be held in the English language.

22On March 16th, 2010, the Clerk of the Milton P.O.A. Court issued a Notice of Trial in this matter fixing the trial of the subject charge for November 17th, 2010, in the Ontario Court of Justice located at 100 Nipissing Road, Unit #2, Milton, Ontario. This Notice was sent to the defendant by ordinary mail, at his address in Georgetown, Ontario, on March 16th, 2010.

23On November 17th, 2010 at 1:30 p.m., the defendant appeared in the Milton Provincial Offences Court, through his legal representative, Mr. Bonin, for the trial of the subject charge. As stated above, at approximately 2:00 p.m. on the said date, the defendant was arraigned on the subject charge and the defendant's representative entered a plea of not guilty to the charge on the defendant's behalf. The trial of the matter then ensued before me.

24During the course of the trial I embarked on the hearing of a preliminary motion whereby the prosecutor sought my leave to permit her witness to make reference to his investigative notes to refresh his existing memory of the relevant events. After hearing some evidence with respect to the circumstances of the preparation of the notes, I received legal submissions from both the prosecutor and the defendant's representative. I then took a recess to consider and prepare my decision in this regard, following which I rendered my oral ruling on the motion, granting leave to the witness to refer to his investigative notes for the purpose of refreshing his memory, under the doctrine of present recollection revived.

25Following the completion of my oral ruling pertaining to this preliminary motion, at 4:08 p.m., the prosecution applied for an adjournment of the continuation of the subject trial. In support of this request, the prosecutor submitted that it was too late in the day to complete the trial and that there were a number of other cases from both the 9:00 a.m. docket and the 1:30 p.m. docket which needed to be addressed prior to the closing of court on that day. In commenting on the prosecutor's request to adjourn the trial in this matter to another day, the defendant's representative simply stated as follows: "I am ready to proceed, Your Worship. That's all I have to say."

26After considering the prosecutor's request to adjourn the subject trial, I determined that in light of the time of the request and in light of the fact that the court closing time was 4:30 p.m., that it would not be appropriate to continue with the trial of the charge at that time and I therefore adjourned the trial "due to a lack of time".

27I then requested the assistance of the court room clerk/monitor to assist me in "finding" an appropriate date for the continuation of the trial in this proceeding. The earliest date offered by the clerk for the continuation of this matter was July 27th, 2011. While that date was available to both the prosecutor and the defendant's representative, I was not available on that date. The next date offered by the clerk was August 3rd, 2011. Once again while that date was available to both the prosecutor and the defendant's representative, I was not available on that date. The next date offered by the clerk was August 9th, 2011 at 9:00 a.m. I was available on that date. Both the prosecutor and the defendant's representative advised that they were available on that suggested date for the continuation of the trial of the subject charge. Accordingly, the trial of the subject charge was adjourned to August 9th, 2011 at 9:00 a.m., in the Milton Provincial Offences Court, for continuation.

28On the 22nd day of November 2010, the defendant's representative prepared a Notice of Constitutional Question, seeking an order staying the subject speeding charge against the defendant, under subsection 24(1) of the Charter, on the basis that the defendant's subsection 11(b) Charter rights had been infringed. The Notice stated that the constitutional question was to be argued in the Milton Provincial Offences Court on August 9th, 2011 at 9:00 a.m.

29The said Notice of Constitutional Question was served on both the Attorney General of Canada and the Attorney General of Ontario on November 22nd, 2010. The Notice was served on the office of the municipal prosecutor, the City of Burlington and filed in the Halton P.O.A. Court office on December 2nd, 2010.

30The defendant's representative appeared for the defendant in the Milton Provincial Offences Court on August 9th, 2011 at 9:00 a.m., for purposes of the continuation of the subject trial. The defendant's matter was called by the prosecutor at 10:06 a.m. At that time, I considered the sufficiency of the defendant's Notice of Constitutional Question and in particular whether the defendant had properly served the Notice on the office of the Attorney General of Canada in the manner described in the statutory form of the Notice, as set out in the Rules of Civil Procedure made pursuant to the C.J.A.

31In that regard, the Court embarked on a hearing to determine whether the Notice had been properly served on the Attorney General of Canada. In this regard, the Court received evidence from the defendant's representative pertaining to the said procedural issue as well as legal submissions pertaining to the said issue from both the defendant's representative and the prosecutor. After considering the evidence proffered and the submissions made, I ruled that the subject Notice of Constitutional Question had been properly served upon the Attorney General of Canada, in accordance with the procedure prescribed by section 109 of the C.J.A., and that, accordingly, the defendant's Charter application pursuant to subsections 11(b) and 24(1) of the Charter was properly before the Court.

32Upon the completion of my oral ruling respecting the sufficiency of the Notice of Constitutional Question, it was approximately 12:00 p.m. and the Court needed to adjourn for its lunch break. I, therefore, offered to hold the matter down to the 1:30 p.m. tier of cases to allow for legal argument on the Charter application and possible trial continuation. While the prosecutor was content with the suggestion made by the Court in this regard, the defendant's representative advised that he was not available to attend Court at 1:30 p.m. as he was scheduled to appear in a court in a neighbouring jurisdiction at that time. The defendant's representative then formally requested an adjournment of the trial of the subject charge, and the proceeding was then re-scheduled for January 9th, 2012 at 1:30 p.m. in the Burlington P.O.A. Court for trial continuation. At that time, the defendant's representative explicitly waived the defendant's rights under subsection 11(b) of the Charter for the period between August 10th, 2011 and January 9th, 2012, inclusive.

33On October 12th, 2011, the defendant's representative prepared a new Notice of Constitutional Question, making application for an order staying the charge against the defendant under subsection 24(1) of the Charter, referable to an alleged violation of the defendant's right to be tried of the subject charge, within a reasonable time. This Notice was properly served on both the Attorney General of Canada and the Attorney General of Ontario on October 12th, 2011. Furthermore, the Notice was personally served on the office of the municipal prosecutor and then filed with the P.O.A. Court office in Milton, Ontario, on November 16th, 2011.

34In this Notice of Constitutional Question, the defendant advised that the subject constitutional question under subsections 11(b) and 24(1) of the Charter was to be argued on January 9th, 2012 at 1:30 p.m.

35On January 9th, 2012, at 1:30 p.m., the defendant's representative attended in the Burlington Provincial Offences Court to argue the subject constitutional question. At that time, the prosecution was represented by Ms. J. Stewart. The prosecution was ready to proceed with the continuation of the trial at that time as the prosecution witness Police Constable Kevin Hanowski, was in attendance in Court.

36The hearing of the Charter application took place as scheduled between 1:46 p.m. and 5:04 p.m. on January 9th, 2012. At that time, I received the legal submissions relative to the application tendered by the defendant's representative. Following the completion of the representative's submissions, the hearing of the Charter application and the potential continuation of the trial was adjourned to January 13th, 2012 at 9:00 a.m. in the Burlington Provincial Offences Court, to be spoken to. On January 13th, 2012, I adjourned the hearing of the Charter application to January 18th, 2012 at 1:30 p.m., in the Milton Provincial Offences Court. At that same time, I targeted February 21st, 2012, as the date for the delivery of my judgment pertaining to the Charter application and for the potential completion of the trial of the matter, in the Milton Provincial Offences Court.

37On January 18th, 2012 at 1:30 p.m., the hearing of the Charter application in this matter reconvened before me in the Milton Provincial Offences Court. At that time, I received the final legal submissions from the prosecutor as well as the final reply submissions from the defendant's representative, between 1:30 p.m. and 3:16 p.m. Upon completion of the hearing of the Charter application, the subject proceeding was adjourned to February 21st, 2012 at 1:30 p.m., in the Milton Provincial Offences Court for my judgment pertaining to the application and for the potential continuation of the trial of the subject charge.

THE LAW

Canadian Charter of Rights and Freedoms

38The following portions of the Charter are relevant to the defendant's application herein:

ss. 11(b) Any person charged with an offence has the right… (b) to be tried within a reasonable time.

ss. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Relevant Common Law

39The defendant stands charged with an offence prosecuted under the procedure codified in Part I of the P.O.A. Accordingly, the following comments made by Doherty J.A. in paragraph 3 of his endorsement decision in Regina v. Omarzadah, [2004] O.J. No. 2212 (Ont. C.A.), are apposite. In denying the prosecution application for leave to appeal a decision of a provincial offences appeals court granting a stay of proceedings in circumstances where a Part I prosecution for a speeding offence took 14 months to be tried, Mr. Justice Doherty stated, in part, as follows:

The applicant is concerned that the reasons below will be taken as establishing a six-month guideline for prosecutions under Part I of the POA. The applicant is concerned that delays beyond six months will be treated as presumptively unconstitutional. The reasons below should not be read as authority for that proposition. The analysis of s. 11(b) provided in R. v. Morin, [1992] 1 S.C.R. 771 applies to POA prosecutions. To the extent that guidelines are helpful where s. 11(b) claims are advanced in prosecutions under Part I of the POA, the R. v. Morin summary conviction guidelines should govern. Even those guidelines, however, should not necessarily be strictly applied. It must be acknowledged that any 'stigma' arising out of the delay in the trial of charges like speeding is virtually non-existent. In allocating finite resources, the state is entitled to give some priority to the speedy resolution of more serious allegations.

40In his decision, written on behalf of the Supreme Court of Canada in Regina v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3 (S.C.C.), Cromwell J. summarized the methodology used to determine whether or not one's subsection 11(b) rights have been violated, in paragraph 18 therein, as follows:

The legal framework for the appeal was set out by the Court in Morin, [supra.] at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787"[t]he general approach… is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interest which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

41In his decision in Regina v. Morin, [1992] 1 S.C.R. 771 (S.C.C.), Sopinka J. writing on behalf of the majority of the Court, defined the purpose of section 11(b) of the Charter, in paragraphs 26 to 30 of his decision, as follows:

The primary purpose of s. 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this Court. I will address each of these interests and their interaction.

The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.): 'Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused…' In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.

There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway [, [1989] 1 S.C.R. 1659 (S.C.C.)], a majority of this Court recognized that the interests of the accused must be balanced by the interests of the society in law enforcement. This theme was picked up in Askov [, [1990] 2 S.C.R. 1199 (S.C.C.)], in the reasons of Cory J. who referred to 'a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law'. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.

42In his decision in R. v. Godin, supra., Cromwell J. acknowledged the societal interest which is adverse to the interests of the accused, by noting that "there is a strong societal interest in having serious charges tried on their merits".

43In describing the general approach to be taken in determining whether an individual's right to be tried within a reasonable time has been denied, Sopinka J. in Morin, supra. remarked that the reasoning does not involve "the application of a mathematical or administrative formula". He went on to state that a Court considering such an issue should engage in "a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay". In this regard, the jurist determined that the following factors be considered in analyzing the reasonableness of the length of any particular delay in bringing the trial of a charge against an accused person to its completion:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

   • a) inherent time requirements of the case,
   • b) actions of the accused,
   • c) actions of the Crown,
   • d) limits on institutional resources, and
   • e) other reasons for the delay; and

4. prejudice to the accused.

44Mr. Justice Sopinka went on to define the judicial approach relative to the consideration of an accused person's contention that his/her rights under subsection 11(b) of the Charter had been infringed, in paragraph 32 of his decision in Morin, supra., as follows:

The judicial process referred to as 'balancing' requires an examination of the length of the delay and its evaluation in light of other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion account must be taken of the interests which s. 11(b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, [1989] 1 S.C.R. 1594 (S.C.C.). The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.

45In commenting on the "role of the burden of proof" in section 11(b) applications, Mr. Justice Sopinka adopted the unanimous decision of the Supreme Court of Canada in Regina v. Smith, [1989] 2 S.C.R. 1120 (S.C.C.), in finding that in an application for a judicial determination that an accused person's subsection 11(b) rights had been violated, the "ultimate or legal burden of proof" would rest on the accused throughout.

46The Court in Smith, supra. stated, however, that "a case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it". It was noted that "although the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case". In that regard, the Court made the following comments:

…For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances. …

47In her decision in Regina v. Aujla, 2010 ONCJ 531 (Ont. C.J.), Zisman J. defined the roles of both the applicant and the Crown in subsection 11(b) applications as follows:

The onus to establish a breach of section 11(b) is on the applicant. It is the Crown's responsibility to ensure that trial proceedings are not unduly delayed.

48In Morin, supra. Sopinka J. defined each of the factors which he determined to be associated with an analysis of the reasonableness of any particular trial delay.

49In addressing the factor of the length of the delay, the said jurist stated that an inquiry into an allegation of unreasonable delay "should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness". In this regard, he went on to state as follows:

If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unless the applicant is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice. If, for example, the applicant is in custody, a shorter period of delay will raise the issue.

50In discussing the issue of waiver of time periods in Morin, supra., Sopinka J. stated that "if by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted". He went on to state that "in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights". He noted that waiver "requires advertence to the act of release rather than mere inadvertence".

51In his decision in Regina v. Lahiry, 2011 ONSC 6780 , [2011] O.J. No. 5071 (Ont. Sup. Ct.), Code J. made the following comments pertaining to the factor of the waiver of time periods:

… When counsel expressly states, on the record, that s. 11(b) is waived for the period of an adjournment, there is little difficulty applying this factor. However, a waiver can also be implied, for example, from consent to a period of delay where 'a choice has been made between available options' and 'the actions of the accused amounted to an agreement to the delay' rather than 'mere acquiescence in the inevitable'. Once a waiver has been found, that period of delay is simply removed from the s. 11(b) analysis and the overall delay is shortened. See R. v. Askov (1990), 59 C.C.C. (3d) 449 (S.C.C.) at pp. 481-2 and 494-5; R. v. Morin (1992), 71 C.C.C. (3d) 1 [(S.C.C.)] at pp. 13-15.

52In paragraphs 40 to 60 of his decision in Morin, supra., Sopinka J. addressed the factor of the "reasons for the delay", including the constituent elements of that factor, identified as "inherent time requirements""actions of the accused""actions of the Crown""limits on institutional resources" and "other reasons for delay". In his introductory remarks pertaining to the factor of the reasons for the delay, the said jurist remarked as follows:

If the application by an accused is not resolved by reason of the principles of waiver, the court will have to consider the other explanations for delay. Some delay is inevitable. Courts are not in session day and night. Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare. Over and above these inherent time requirements of a case, time may be consumed to accommodate the prosecution or defence. Neither side, however, can rely on their own delay to support their respective positions. When a case is ready for trial a judge, courtroom or essential staff may not be available and so the case cannot go on. This latter type of delay is referred to as institutional or systemic delay. …

53In analyzing the element of inherent time requirements, Mr. Justice Sopinka stated that "all offences have certain inherent time requirements which inevitably lead to delay". In that regard, the jurist noted that the parties in a trial need time to prepare, indicating that "all other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins". The jurist noted that the inherent requirements of complex cases "will serve to excuse longer periods of delay than for cases which are less complex". He went on to state that "account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case".

54The jurist submitted that "as well as the complexity of a case there are inherent requirements which are common to almost all cases". He acknowledged that these requirements could be described as "intake requirements". He noted that these requirements "consist of activities such as retention of counsel, bail hearings, police and administrative paperwork, disclosure etc." and that while all of these activities may not be necessary in a particular case"each activity takes some amount of time". He reasoned that "as the number and complexity of these activities increase, so does the amount of delay that is reasonable", and that "the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay".

55Sopinka J. argued that the length of time necessary for the performance of intake activities for various categories of offences would be influenced by "local practices and conditions and should reflect that fact". He opined that the "intake period" in a particular region would tend to be the same for most offences, suggesting that the period would likely fall "within a range of a certain number of weeks or months".

56In his decision in Regina ex rel. City of Toronto v. Andrade, 2011 ONCJ 470 , [2011] O.J. No. 4245 (Ont. C.J.), Libman J. undertook an extensive review of the issue of the appropriate length of an "intake period" in the context of Part I P.O.A. prosecutions in the City of Toronto. After considering the evidence adduced on appeal as to the issue of the "intake period" and in particular the practices and procedures employed by the City of Toronto in processing certificates of offence and notices of intention to appear and in scheduling trial dates, the said jurist reached the following conclusions respecting the issue of the determination of a reasonable "intake period" for a minor H.T.A. offence:

I am respectfully of the view, in assessing the merits of the positions put forward by both the appellant and the respondent as to a reasonable intake period, that each fails to fully take into account the legitimate concerns of the other, that is, the high volume of trial requests processed by the municipality in scheduling trials, and the defendant's right to have a trial promptly scheduled with some consideration as to his/her individual interest and availability in the date and time selected for the proceedings.

That said, I see no reason why a reasonable intake period for a traffic ticket, as a general rule, should exceed a period of between 30-45 days. An intake period in the lesser range of 30 days will be appropriate where the defendant acts promptly within the 15 day window to respond to his/her ticket and files the notice of intention to appear in court for trial, and the officer, in turn, files the certificate of offence or offence notice expeditiously in the court office, thereby allowing court administration to have all the necessary documentation within days of the issuance of the ticket. An intake period in the outer range of 45 days will be appropriate where the defendant does not act until the latter part of the 15 day window to respond to his/her ticket and file the notice of intention to appear in court for trial or the officer does not file with dispatch the certificate of offence or offence notice in the Court office, thereby causing court administration to wait a lengthier period before having all the necessary documentation to schedule a trial date.

In either case, an intake period or inherent time requirement range of 30 to 45 days should result in provincial offences trials for minor offences being scheduled within approximately two months of the offence date. I note that this period is consistent with cases in the Toronto Region such as Omarzadah, [supra.] (trial scheduled 45 days from the offence date) and Hussain [R. v. Hussain, [2005] O.J. No. 158 (Ont. C.J.)] (trial scheduled in less than two months from offence date).

An intake period of this duration promotes the scheduling of trials in a manner that will enhance the likelihood of the overall period of delay to the actual trial date being a reasonable one, rather than one that is not. It also provides certainty as to the scope of reasonable intake time, and eliminates the arbitrariness of simply calculating the period from the filing of the notice of intention to appear until the date the trial notice is issued, a practice that produces a time period for intake that is uncertain and unpredictable, and may in fact range, as the cases demonstrate, from one day to more than 10 months.

Moreover, an intake period of 30 to 45 days for the most minor of provincial offences, that is those prosecuted under Part I [of the P.O.A.] as ticket infractions, is also consistent, in my opinion, with the intent of the legislation, a very important aspect of which is ready and efficient access to the administration of justice. …

57In addressing the element of the actions of the accused in Morin, supra, Sopinka J. commenced his analysis by stating that "this aspect of the reasons for the delay should not be read as putting the 'blame' on the accused for certain portions of the delay". The jurist stated that included in this element are "all actions taken by the accused which are voluntarily undertaken". He noted that actions such as change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver and attacks on search warrants would fall into this category. He concluded his comments by stating that he "did not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable".

58In his decision in Regina v. N.N.M., [2006] O.J. No. 1802 (Ont. C.A.), Juriansz J.A. briefly addressed the issue of the effect of the delay in the trial proceedings occasioned by an application under subsection 11(b) of the Charter, made by an accused at the outset of trial. In that regard, Mr. Justice Juriansz made the following comments in paragraphs 64, 65, 66 and 67 of his said decision:

I summarize what happened as follows. The state offered the respondent [the accused] a trial date in early June 2004, some twenty-six months after he was charged. Instead, he chose to set a trial date at the end of November 2004, some thirty-two months after he was charged. Then, he brought a s. 11(b) application that further delayed the trial and argued that the delay to the anticipated completion of the trial would be approximately thirty-seven months after the charges were laid.

The respondent, of course, was entitled to bring the s. 11(b) application. However, the adjournment it caused is attributable to the defence. It is not a question of fault or blame but rather recognition of the reason why the trial was adjourned. As Arbour J.A. said in R. v. Harrison, [1991] O.J. No. 881 (C.A.) in relation to a defence application to quash a committal to trial:

The respondent was entitled to move to quash his committals for trial, even if these motions required a postponement of the original trial date. However, he must then accept the reasonable delays that occur as a consequence of this additional step in the pre-trial process.

Of the period in excess of eleven months between May 31, 2004 and the anticipated end of trial on April 9, 2005, I would allocate nine months to the defence. Based on the Crown's concession, I would allocate the two remaining months to inherent time required to deal with the s. 11(b) application, await the court's decision, and to hold the trial.

Since neither the inherent time nor the defence delay count against the Crown, it is apparent that the s. 11(b) clock stopped running when the accused refused a trial date in early June 2004.

59In addressing the element of the actions of the Crown in Morin, supra., Sopinka J. noted that "as with the conduct of the accused, this factor does not serve to assign blame". He stated that in respect of this element of the factor of the reasons for the delay, the actions under consideration include "adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc.".

60In citing an example of such an action, Mr. Justice Sopinka made reference to his decision in Regina v. Smith, supra., where adjournments were sought by the Crown in order to have a particular investigating officer attend the trial. The jurist advised that in the decision he concluded that while there was nothing wrong with the Crown seeking such adjournments, the delays associated therewith could not be relied upon by the Crown to explain away delay that was otherwise unreasonable.

61In discussing the factor in the subsection 11(b) Charter analysis, titled "reasons for delay", in his decision in Regina v. Lahiry, supra., Mr. Justice Code sated as follows:

The third factor, reasons for delay, can be the most important and also the most difficult of the four factors in some cases. It does not involve findings of fault, as there can be good or necessary reasons for delay. This factor simply requires an objective analysis of each period of delay in order to determine its cause. The five traditional causes are: the inherent time requirements of the case; any actions of the defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes, such as judicial delays. Careful analysis of the transcripts of each date where the proceedings were delayed is critically important to this factor. Having objectively determined the cause of each period of delay, based on the transcripts and any other relevant evidence, this factor then assigns a weight to that period. Some delays are said to 'weigh against the Crown', some delays are said to 'weigh against the defence' and some delays are said to be 'neutral'. Needless to say, delays caused by the accused's own actions 'will justify' an otherwise unreasonable period of delay because the accused invariably seeks some benefit from such delays, such as additional time to prepare, to retain counsel, to bring some collateral proceedings, or to try to resolve the case. On the other hand, delays caused by the Crown or by inadequate resources 'cannot be relied upon … to explain away delay that is otherwise unreasonable'. Finally, delay due to the inherent requirements of the case 'is neutral and does not count against the Crown or the accused'. See R. v. Askov, supra. at pp. 477-481 and 483; R. v Morin, supra., at pp. 16-23; R. v. MacDougall, (1998), 128 C.C.C. (3d) 483 (S.C.C.) at p. 500.

62In another part of his decision in Lahiry, supra., at paragraph 67 therein, Code J. made the following comments as how the delay occasioned by a rescheduling of a trial date should be characterized:

There is now a substantial body of case law dealing with this issue of re-scheduling a trial that has not commenced or that has not been completed on the scheduled trial date. These authorities hold that the case must be given priority in the system and that delays resulting from re-scheduling the trial date will generally be treated as institutional or as part of the inherent time requirements, or as a combination of both, depending on the circumstances. …

63Furthermore, in his decision in Regina v. Allen, [1996] O.J. No. 3175 (Ont. C.A.), Doherty J.A. found that the inherent time requirements of a case could include necessary adjournments to find additional court time for the completion of a case. In that regard, the jurist stated, in part, as follows:

I turn next to the length of the delay which resulted when the case was adjourned. Justice Ferguson held that the entire six months could be attributed to a chronic scarcity of judicial resources. When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case. R. v. Morin, [(1992), 71 C.C.C. (3d) 1 (S.C.C.)] at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial estimates prove inaccurate: R. v. Hawkins (1991), 6 O.R. (3d) 724 at 728 (C.A.), aff'd, (1992), , 11 O.R. (3d) 64 (S.C.C.); R. v. Philp (1983), 80 C.C.C. (3d) 167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. …

64In considering the element of the limits on institutional resources in Morin supra., Sopinka J. began his analysis by making the following comments:

Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter. It was the major source of delay in Askov [supra.]. As I have stated, this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11(b) was either conceived or in which it operates. We live in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11(b), account must be taken of this fact of life. …

65In analyzing the issue of how the courts are to reconcile the demand that trials are to be held within a reasonable period of time "in the imperfect world of scarce resources", Mr. Justice Sopinka stated, in part, as follows:

… While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11(b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. This period of time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. …

The purpose of the suggested period was not therefore that it was to be treated as a limitation period and inflexible. The purpose in expressing a guideline is two-fold. First as I have already indicated, it is to recognize that there is a limit to the delay that can be tolerated on account of resource limitations. Second, it is to avoid each application pursuant to s. 11(b) being turned into a trial of the budgetary policy of the government as it related to the administration of justice. The flavour of such a proceeding can be approached by a perusal of the voluminous record before the Court in this case.

A number of considerations enter into the adoption of a guideline and its application by the trial courts. A guideline is not intended to be applied on a purely mechanical fashion. It must lend itself and yield to other factors. This premise enters into its formulation. The Court must acknowledge that a guideline is not the result of any precise legal or scientific formula. It is the result of the exercise of a judicial discretion based on experience and taking into account the evidence of the limitations on resources, the strain imposed on them, statistics from other comparable jurisdictions and the opinions of other courts and judges, as well as any expert opinion. …

66In commenting on the application of an administrative guideline relative to the issue of the length of a constitutionally tolerable period of institutional delay, Sopinka J. wrote as follows:

The application of a guideline will also be influenced by the presence or absence of prejudice. If the accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact.

In this case we are dealing with the Provincial Court. The suggested period of institutional delay ranges from 6 to10 months. The respondent suggests that 8 to 10 months of purely systemic delay would not be unreasonable in the Provincial Court. It admits, however, that it is aiming at institutional delay of no more than 6 to 8 months in Provincial Court. Arbour J.A. in Bennett, supra. [Regina v. Bennett, [1991] O.J. No. 884 (Ont. C.A.)] suggests 'a delay of 81/2 to 9 months in getting a case to trial in the Provincial Court, although not a model of brevity, is not outside the range of reasonableness'.

In Askov, [supra.] Cory J., after reviewing comparative statistics suggested that a period in the range of 6 to 8 months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay.

67In addressing the final element described as "other reasons for delay" in Morin, supra., Sopinka J. identified a circumstance where the actions of a trial judge could be the cause of delay. In considering this scenario, the jurist was reminded of the circumstances in the case of Regina v. Rahey, [1987] 1 S.C.R. 588 (S.C.C.), wherein the trial judge initiated adjournments of the trial proceeding on nineteen separate occasions over a period of eleven months, after the accused had moved for a directed verdict. The jurist noted that while this form of delay was "not institutional in the strict sense" it could not "be relied upon by the Crown to justify the period under consideration".

68In concluding his comments relative to this element of the reasons for the delay, Mr. Justice Sopinka stated that "other delays that have not been mentioned may weigh against the accused, but in most cases delays will weigh against the Crown for the same reason as was discussed in Rahey, supra.".

69Trial delay due to the illness of a Justice seized of a case might be properly classified under the category of "other reasons for delay". In her decision in the case of Regina v MacDougall, [1998] 3 S.C.R. 45 (S.C.C.) at paragraph 61, McLachlin, J. (as she then was) made the following comments relative to the said issue:

Delay related to the illness of a judge seized of the case may be considered to be delay inherent in the case (not counted against the Crown), delay attributable to the Crown (counted against the Crown), or delay due to a shortage of institutional resources (counted against the Crown if the delay is unreasonable). Delay related to judicial illness which takes place in the period before it is reasonable for the Crown to apply to have the judge removed is inherent delay. Delay which occurs after the point when it is reasonable for the Crown to apply to have the judge removed is Crown delay. Delay in replacing a judge which transpires after the point when it is reasonable to have the judge removed due to lack of judicial resources is institutional or systemic delay, counting against the Crown if the lack of resources is unreasonable having regard to the particular pressures on the court system at issue.

70In paragraphs 61 to 64 of his decision in Morin, supra., Mr. Justice Sopinka made the following comments pertaining to the factor to be considered on assessing the reasonableness of any trial delay; that being the factor of prejudice to the accused:

Section 11(b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a completion. We have decided in several judgments, including the unanimous judgment in Smith, supra., that the right protected by s. 11(b) is not restricted to those who demonstrate that they desire a speedy resolution to their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. In the American concept of this principle, expounded in Barker v. Wingo, [407 U.S. 514 (1972)] the inference is that no prejudice has been suffered by the accused unless he or she asserts the right. While the observation of Dubin C.J.O. in Bennett [supra.] that many, perhaps most, accused are not anxious to have an early trial may no doubt be accurate, s. 11(b) was designed to protect the individual, whose rights are not to be determined on the basis of the desires or practices of the majority. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.

This Court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial (see Askov, supra, at pp. 1225, 1227, 1229). While it was not necessary for the accused to assert her right to be tried within a reasonable time, strong views have been expressed that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of the accused. …

As noted by Cory J. in Askov, supra, 'the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused' (p. 1222). This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. This position is consistent with decisions of this Court in regard to other Charter provisions. For example, this Court has held that an accused must be reasonably diligent in contacting counsel under Charter s. 10(b) (R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Smith, [1989] 2 S.C.R. 368). If this requirement is not enforced, the right to counsel could be used to frustrate police investigation and in certain cases prevent essential evidence from being obtained. Nonetheless, in taking into account inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay.

Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. 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' to use the words adopted by Lamer J. in Mills, supra, [Mills v. The Queen, [1986] 1 S.C.R. 863 (S.C.C.)] at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence.

Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated. The application of any guideline will be influenced by this factor.

71In Regina v. Godin, supra., the Supreme Court of Canada reversed the decision of the majority of the Ontario Court of Appeal panel which set aside the stay of the criminal charges as ordered by the trial judge, based upon unreasonable delay.

72In his reaching this decision on behalf of the unanimous Court, Cromwell J. made the following comments relative to the factor of prejudice to the accused:

The Court of Appeal disagreed with the trial judge's analysis of prejudice and found that any prejudice to the accused's interest in a fair trial was too speculative to be considered. Partly on this basis, the Court of Appeal found that the delay was not unreasonable. I respectfully disagree. In light of the length of the delay, of the Crown's failure to explain the multiple delays adequately, and of the prejudice to the accused's liberty and security interests – if not also to his interest in a fair trial – the delay in this case was unreasonable.

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise to raise a defence. See Morin, [supra.], at pp. 801-3.

The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, 'prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn'. Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

The majority of the Court of Appeal acknowledged that these charges had been hanging over the appellant's head for a long time. It was reasonable, in my view, to infer as the trial judge did that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice. The majority of the Court of Appeal appears to have given no weight to this consideration. The majority of the Court of Appeal also disagreed with the trial judge's finding relating to prejudice flowing from restrictive bail conditions. The appellant had been on judicial interim release for more than two years. It is true that his bail conditions were relaxed as the delay lengthened, but the trial judge did not err in the circumstances of this case by taking this consideration into account as one aspect relevant to his overall assessment of whether the long delay was unreasonable.

The majority of the Court of Appeal rejected as speculative the appellant's contention that his ability to make full answer and defence had been prejudiced. There was evidence, however, that there was a risk of prejudice to his defence because of the delay. In my respectful view, the majority of the Court of Appeal erred by failing to accord any weight to this risk of prejudice.

The nature of the risk to the appellant's ability to make full answer and defence was well set out by Glithero R.S.J., dissenting in the Court of Appeal, at paras. 69-74. He noted that the case was likely to turn on credibility and, in particular, on cross-examination of the complainant and her boyfriend in light of DNA test results and prior statements. The dissenting judge concluded that the extra passage of time made it more likely that the ability of the appellant to cross examine effectively had been diminished.

It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.

73In the concluding paragraphs of the said decision, Cromwell J. noted that "the length of the delay and the evidence supported the trial judge's inference that some prejudice to the appellant resulted from the delay". He then made reference to the following passage from the concurring reasons of McLachlin J. (as she then was) in Morin, supra., at page 810:

…When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

74In his decision, in Lahiry, supra., Code J. summarized the analysis to be performed in considering the issue of prejudice to an accused occasioned by trial delay, as follows:

The fourth factor is prejudice to those interests of the accused that s. 11(b) seeks to protect, namely, liberty, security of the person, and fair trial. Prejudice to one or more of these interests can be inferred, without extrinsic evidence, from 'a very long and unreasonable delay', in other words, from delay that is 'substantially longer than can be justified on any acceptable basis'. In a case where the period of unjustified delay is 'closer to the line', the accused may lead evidence of actual prejudice to one or more of the protected interests, in order to show 'that there has been unusual prejudice by reason of special circumstances'. See: R. v. Askov, supra at pp. 474 and 482-4; R. v. Morin, supra at [pp.] 23-4; R. v. Smith, supra at p. 111.

75After commenting on the issue of prejudice as set out above, Mr. Justice Code went on to provide direction as how a Court should apply its assessment to each of the four factors enunciated in Morin, supra, which he described as being (i) "the overall length of delay from the laying of charges until the trial concludes"; (ii) "waiver of any individual time periods"; (iii) "the reasons for the various periods of delay"; and (iv) "prejudice to the particular interests of the accused protected by s. 11(b)". In that regard, he stated as follows:

At the end of assessing these four factors, the court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown. The court should also arrive at some assessment as to the strength or weakness of the claim to prejudice. It is only unreasonable periods of delay, causing prejudice, which s. 11(b) protects against. As noted above, these factors must then be balanced against the societal interest in a trial on the merits.

76In his ruling on a subsection 11(b) application, in R. v. Fortuin, [2004] O.J. No. 4965 (Ont. C.J.), MacDonnell J. made the following statements at paragraph 13 of his decision relative to the application of the factor of prejudice to the accused:

The final factor to be considered is the question of prejudice. It is well recognized that when there is an excessive delay, prejudice to some degree is to be inferred. In my view where the delay is in excess of the guidelines that have been set out by the Supreme Court of Canada and by other appellate courts then the inference of some degree of prejudice is triggered.

77In his provincial offences appeal decision in Regina v. Farokhshadfar, [2001] O.J. No. 6015 (Ont. C.J.), Libman J. overturned the decision of Justice of the Peace Ng in denying the defendant's application for a stay of proceedings relative to an alleged violation of his rights under subsection 11(b) of the Charter, in respect of a prosecution under Part I of the P.O.A. In the trial level decision, Justice of the Peace Ng determined that even though the period of trial delay in this proceeding, being 14 months, was "on the long side", there was "not sufficient prejudice" to the defendant to justify the granting of a stay of the charge.

78In overturning the decision of the trial Justice of the Peace and entering a verdict of an acquittal on appeal, Mr. Justice Libman made the following remarks in paragraph 8 of his decision:

The very short time lines that govern under the Provincial Offences Act make it clear that speedy justice is the hallmark of proceedings under this Act. And the period of delay here resulted, in my opinion, in violation of the defendant's Charter of Rights, whether or not the Justice of the Peace was satisfied that prejudice was apparent or not. …

79Mr. Justice Libman's comments in Farokhshadfar, supra., seem to suggest that the existence of prejudice to the defendant resulting from unreasonable trial delay, is not a necessary factor, when one is assessing whether a defendant's subsection 11(b) rights have been infringed in the context of an excessive period of delay in bringing a Part I P.O.A. charge to trial.

80The jurist's decision in Farokhshadfar is similar to his determination in Regina ex. rel. City of Toronto v. Andrade, supra., wherein he upheld the decisions of the trial Justices of the Peace in ordering stays of proceedings under subsections 11(b) and 24(1) of the Charter, relative to charges prosecuted under the procedure set forth in Part I of the POA of "obstruct plate" and "unreasonable noise" under the H.T.A., against the defendant Mr. Andrade, and of "speeding" under the H.T.A., against the defendant Mr. Hariraj. In Andrade, Mr. Justice Libman concluded that the rights of the said defendant's under subsection 11(b) had been violated, relative to periods of institutional delay of 9 months in respect of Mr. Andrade, and 10 months in respect of Mr. Hariraj, even though there was no evidence before the court of prejudice to either defendant, occasioned by the institutional delay.

81In paragraphs 90 to 94 of his decision in Andrade, supra., Mr. Justice Libman justified his said conclusion as follows:

Weighing Competing Interests

The final step in the s. 11(b) analysis is to weigh the competing interests between the state and the accused. As McLachlin J. (as she was then) stated at para. 87 in Morin, 'The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis, the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.'

The Highway Traffic Act forms an important part of the public welfare legislative fabric in this province by which motorists and other users of the roadway are governed. Indeed, the rules of the road are set out for the protection of society as a whole. Not surprisingly, this statute gives rise to a very substantial number of cases before the Ontario Court of Justice. There is thus a societal interest in the effective and vigorous prosecution of highway traffic offences, particularly where harm or the potential for harm is present.

On the other hand, there is nothing particularly complex about the charges against these two defendants. Highway traffic infractions are not impervious to Charter s. 11(b) scrutiny. The defendants exercised their respective options to have trials, and provided timely notice of their intention to rely on the right to be tried without unreasonable delay. The processing and scheduling of their trial dates was based on an unreasonable administrative procedure, emphasizing the charging practices of officers who issued the tickets, and their availability for trial only, as opposed to any consideration of the interests of the defendants; there has also been significant institutional delay which exceeds the administrative guideline period. Despite there being no evidence of prejudice to the defendants, as will not infrequently be the case in Part I provincial offences proceedings, this must be balanced by the public interest in a fair, efficient and timely process for bringing such matters to trial.

It is therefore my respectful opinion, having regard to the totality of the circumstances, that the interest of the defendants and society in a prompt trial outweighs the societal interest in bringing the accused persons to trial.

Conclusion

Courts, as Horkins J. observed in Donaldson [Regina v. Donaldson, 2010 ONCJ 3 (Ont. C.J.)] at para. 53, have a 'constitutional mandate' to stay charges where an accused's protected rights under s. 11(b) are violated. Having balanced the competing interests to the best of my ability, I conclude, as did Justices of the Peace Wichman and Begley, that the defendant's s. 11(b) Charter rights have been violated, and that the stays of proceedings imposed at trial due to unreasonable delay were warranted.

82In the case of Regina v. Rahey, supra., the majority of the Supreme Court of Canada determined that a stay of proceedings is the minimum remedy for an infringement of s. 11(b), because, in that circumstance, the court has lost jurisdiction to proceed. In that regard, Lamer J. (as he then was) made the following comments in paragraph 51 of the decision:

It is, in other words, open to the courts to take preventative measures, based on their inherent power to control their process, prior to an actual violation of s. 11(b). Where, however, on balancing the various factors, the court decides that the accused's right to be tried within a reasonable time has already been contravened, a stay of proceedings will be the appropriate remedy. It is not necessarily the only remedy, for additional remedies may be added, such as, possibly, damages, if it be proved that there was malice on the part of the Crown and resulting prejudice.

ANALYSIS

83In attempting to reach a decision pertaining to the defendant's subsections 11(b) and 24(1) Charter application herein, I must remind myself that it is not appropriate to resolve the issues raised by the application by means of a "burden of proof" approach. As stated by Sopinka J. in Morin, supra., while it is acknowledged that in such subsection 11(b) applications, the applicant (accused) "has the ultimate or legal burden throughout", the preferred approach to the judicial determination of such applications is through a "balancing" of the "interests which the [subsection] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay".

84In this regard, the said jurist identified four factors, including their constituent elements, which a Court should consider in analyzing the reasonableness of the purported delay in bringing the trial of a charge to completion. Many jurists considering applications under subsections 11(b) and 24(1) of the Charter, subsequent to the release of the decision in Morin, supra., have described the consideration of these four factors as the "legal framework" for the analysis of such applications.

85I will now apply each of the four factors relative to the judicial determination of the reasonableness of the length of delay in the completion of the trial of an offence, as identified in Morin, supra., to the facts of the case at bar.

The Legal Framework

(i) The Length of the Delay

86I have determined the overall length of the delay in this proceeding to be 23 months and 20 days. It is comprised of the period between March 1st, 2010; the day following the subject offence date, when the certificate of offence was filed with the Milton Provincial Offences Court, and February 21st, 2012, being the anticipated completion date of the trial of the proceeding.

87In my view, the overall delay in this proceeding is of sufficient length to raise an issue as to its reasonableness. The length of the delay is certainly exceptional and it warrants an inquiry into the reasons for the delay.

(ii) Waiver of Time Periods

88As stated above, on August 9th, 2011, the defendant's representative explicitly waived his client's rights under subsection 11(b) of the Charter, in respect of the subject charge, for the period between August 10th, 2011 and January 9th, 2012. The waived period of time amounts to 4 months and 29 days.

89I have subtracted this period of time from the overall delay in the process of analyzing the period of trial delay which might be considered to be unreasonable.

(iii) The Reasons for the Delay

(A) Inherent Time Requirements

90The issues to be resolved relative to this element are:

1. whether or not there are any "intake requirements" associated with the subject careless driving offence, prosecuted under the procedure codified in Part I of the P.O.A. and, if so;

2. what would be a reasonable length of an "intake period" for the subject offence?

91In considering these issues, one must place significant weight on the principles enunciated in Morin, supra., that "all offences have certain inherent time requirements which inevitably lead to delay", and that some of these requirements are common to "almost all cases". The Court noted that these requirements could be referred to as "intake requirements", and that they would consist of "activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure etc."

92While I acknowledge that the offence for which the defendant is charged is a minor, absolute liability offence under the H.T.A., which is being prosecuted by means of the procedure codified in Part I of the P.O.A., there are nevertheless certain "intake" activities associated with the prosecution of the offence. These activities are limited to police and administration paperwork and the preparation of disclosure for the defendant. It is, therefore, reasonable to afford the prosecution a neutral period of time to complete these activities. This period may be described as an "intake period".

93In considering the issue of the length of an intake period for the subject offence, I have taken into account the fact that the defendant proceeded expeditiously in filing his Notice of Intention to Appear with the P.O.A. Court ten days following the date of the offence, on March 9th, 2010. He, therefore, applied for a trial within the fifteen day window to respond to his P.O.A. Offence Notice, afforded to him under Part I of the P.O.A. Furthermore, I note that the provincial offences officer who served the Offence Notice upon the defendant on February 28th, 2010, filed the corresponding Certificate of Offence with the Court on March 1st, 2010.

94In light of the defendant's prompt response to the Offence Notice, the Clerk of the P.O.A. Court was able to notify the defendant of his trial date (November 17th, 2010), by sending the Notice of Trial to him, by ordinary mail, on March 16th, 2010, seven days after the date that the defendant filed his Notice of Intention to Appear with the Court.

95In determining the appropriate length of the intake period in this matter, I am persuaded by the reasoning of Libman J. in Regina ex. rel. City of Toronto v. Andrade, supra., where he stated that he saw "no reason why a reasonable intake period for a traffic ticket, as a general rule, should exceed a period of between 30 to 45 days". The jurist went on to say that "an intake period in the lesser range of 30 days will be appropriate where the defendant acts promptly within the 15 day window to respond to his/her ticket and files the notice of intention to appear in court for trial, and the officer, in turn, files the certificate of offence or offence notice expeditiously in the court office, thereby allowing court administration to have all the necessary documentation within days of the issuance of the ticket".

96After considering all of the relevant factors in the determination of the appropriate length of the intake period in this proceeding, I am of the view that the period of one month, between March 10th, 2010 and April 10th, 2010, would constitute a reasonable intake period. In reaching this conclusion, I have taken into consideration the prompt actions of the defendant in responding to the Offence Notice, the fact that the Certificate of Offence was filed with the P.O.A. Court the day following the offence date and the nature of the charge. I am satisfied that given these factors all of the necessary pre-trial activities to be completed by both the prosecution and the defendant, including issues pertaining to the retention of the defendant's legal representative, police paperwork and the preparation of disclosure as well as court administrative activities pertaining to the scheduling of a trial date for the subject charge could be completed within a 30 day period subsequent to the filing of the Notice of Intention to Appear by the defendant. Accordingly, I find the 30 day intake period to be an inherent time period required for the subject proceeding. The period of time will be treated neutrally such that it will not weigh against either the prosecution or the defendant.

(B) Actions of the Accused

97As stated by Sopinka J. in Morin, supra., this element is relevant to those actions which are "voluntarily undertaken" by the accused and "which may have caused delay". The jurist went on to identify a number of procedural or strategic motions or applications which might be pursued by an accused prior to trial and which could either cause or contribute to trial delay. He noted that it would be appropriate to take such actions into account in the process of assessing the reasonableness of the length of any particular trial delay.

98In the case at bar, the defendant applied for a stay of proceedings under subsections 11(b) and 24(1) of the Charter on January 9th, 2012, being the third trial date in this proceeding. This application was in the nature of a pre-trial motion, voluntarily undertaken, whereby the defendant sought an appropriate and just remedy for an alleged infringement of one of his legal rights, relative to the quasi-criminal offence against him, as guaranteed by the Charter. However, the commencement of the subject Charter application at the outset of the third trial date in this matter was a significant contributing factor in the delay in the completion of the subject trial.

99It must be remembered that the prosecution was ready to proceed with the evidentiary phase of the trial continuation on January 9th, 2012, when the defendant's intervening application served to postpone the conduct of the trial of the charge on its merits. It is therefore appropriate that the actions of the defendant in pursuing the Charter remedy, form part of the Court's analysis in adjudicating his Charter application herein.

100In assessing the significance of the actions of the defendant in this regard as one of the causes of the delay in the completion of the trial in this matter, I have found the comments made by Juriansz J.A. in his decision in Regina v. N.N.M., supra. on the subject issue, to be quite persuasive. I am of the view that I am bound by the reasoning expressed by the said jurist in the said decision pertaining to the impact of the commencement of a subsection 11(b) application prior to or during the course of a trial, on the issue of the reasonableness of any trial delay occasioned by the hearing of and the determination of the application.

101As noted above, in N.N.M., supra., Mr. Justice Juriansz opined that while the accused was "entitled" to bring a subsection 11(b) application, the adjournment of the trial proceeding, which was caused by the time required to argue and consider the application, was "attributable to the defence". In support of this position in respect of this issue, he cited the dicta of Arbour J.A. (as she then was) in Regina v. Harrison, supra., where she stated that while the accused/respondent "was entitled to move to quash his committals for trial", resulting in a postponement of the original trial date"he must then accept the reasonable delays that occur as a consequence of this additional step in the pre-trial process". Mr. Justice Juriansz concluded that the period of delay occasioned by the pursuit of the subsection 11(b) application, including the time required for the Court to dispose of the application, should be categorized as delay related to the actions of the accused and therefore attributable to the defence.

102I am of the view that I am bound by the reasoning enunciated by the Ontario Court of Appeal in N.N.M., supra. Accordingly, I find that the delay to the continuation of the evidentiary phase of the charge against the defendant herein on January 9th, 2012, precipitated by the intervention of the defendant's Charter application on that date, should be attributed to the defendant. I am of the view that the trial delay between January 10th, 2012 and February 21st, 2012, being the date when I am scheduled to render my judgment pertaining to the subject Charter application, as well as the anticipated trial completion date, being a period of 1 month and 11 days, should weigh against the defendant.

103Furthermore, I am also of the view that the time after the filing of the subject Certificate of Offence on March 1st, 2010, until the date when the defendant filed his Notice of Intention to Appear thereby requesting a trial in the subject proceeding, on March 9th, 2010, a period of 9 days, should be categorized as delay occasioned by the actions of the defendant. Accordingly, the total amount of trial delay attributable to actions of the accused, which therefore weighs against the defendant for purposes of this subsection 11(b) Charter analysis, is a period of 1 month and 20 days.

(C) Actions of the Crown

104As stated by Sopinka J. in Morin, supra., this element of the factor of "the reasons for the delay" is concerned with actions of the prosecution which may cause a delay in the completion of a trial of an offence.

105In this regard, I have considered the argument made by the defendant's representative that the adjournment of the trial proceedings of November 17th, 2010 at approximately 4:08 p.m., in order to permit the prosecution to complete other outstanding matters scheduled on the court's docket from both the 9:00 a.m. and 1:30 p.m. tier of cases that day, to be an action of the prosecutor, which should weigh against the prosecution in this s. 11(b) analysis. I do not, however, accept that argument.

106In my view, the request made by the prosecutor at approximately 4:08 p.m. to adjourn the trial of the subject charge which had commenced earlier that afternoon at approximately 2:00 p.m., was both a logical and reasonable request.

107At the time that I rendered my ruling pertaining to the issue of the use of the notes by the police officer witness, the trial had already proceeded for a period of approximately two hours. I had not, at that point in time, received any testimony from the police officer pertaining to the subject offence other than a small amount of evidence pertaining to the preparation of his investigative notes relevant to the circumstances of the offence. The evidentiary phase of the trial proceeding had barely commenced at the time of the completion of my ruling pertaining to the prosecution's preliminary motion seeking the leave of the Court to permit the police officer to refer to his notes during the course of his testimony. At the time of the prosecution's request that the trial of the matter be adjourned, I had also determined that there was insufficient time remaining during the Court's presiding schedule to accommodate the continuation of the trial to its completion on the said date. In reviewing the transcripts of the subject date, I note that I stated that the sittings of the Court would conclude at 4:30 p.m. and that I did not feel that there was sufficient time left during the Court day to complete both the trial and the remaining matters on the docket.

108Upon reviewing the transcript of the proceedings of November 17th, 2010, I note that at approximately 4:10 p.m., I adjourned the continuation of the trial of the subject proceeding "due to a lack of time". Accordingly, I am of the view that the period of trial delay flowing from the adjournment of the trial on November 17th, 2010 may be properly categorized as institutional or systemic delay.

(D) Limits on Institutional Resources

109As stated by Sopinka J. in Morin, supra."institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter". The jurist defined a period of institutional delay as "the period that starts to run when the parties are ready for trial but the system cannot accommodate them".

110In considering the issue of an administrative guideline relative to the point in time when the Court will no longer tolerate delay based on a plea of inadequate court and /or judicial resources, Sopinka J. suggested that "a period of institutional delay of between 8 to 10 months" as a guideline for all criminal or provincial offences which are tried in the Provincial Courts. The jurist emphasized that the guideline suggested was not to be "treated as a fixed limitation period", indicating that the guideline was "not intended to be applied in a purely mechanical fashion" and that "it must lend itself and yield to other factors".

111Sopinka J. noted that the application of a guideline will be "influenced by the presence or absence of prejudice". In this regard, he observed that the period of acceptable institutional delay might be shortened in circumstances where the accused is in custody while waiting for the completion of his/her trial, or in circumstances where the accused, while not in custody, is subject to restrictive bail conditions or "otherwise experiences substantial prejudice" during the course of any delay in the completion of his/her trial.

112In the alternative, Mr. Justice Sopinka submitted that "in a case where there is no prejudice or the prejudice is slight, the guideline may be applied to reflect this fact".

113In carefully considering the chronology of the events in this proceeding, leading up to the anticipated completion of the trial on February 21st, 2012, I am of the view that the total period of trial delay which may be attributed to the element of institutional delay is 15 months and 16 days. The responsibility for this type of delay rests on the prosecution.

114For reasons which I have already expounded upon or which I will explain below either under this sub-heading - "Limits on Institutional Resources" or under the sub-heading below titled "Other Reasons for Delay", I have apportioned the overall trial delay in this proceeding as follows:

1. March 1st, 2010 to March 9th, 2010 – Trial delay attributable to actions of the accused/defendant. This 9-day period of time weighs against the defendant.

2. March 10th, 2010 to April 10th, 2010 – I have designated this 1-month period of time as an "intake period". During this time, the court administration completed the paper work necessary to schedule the initial trial date in this matter of November 17th, 2010 and then provided notice of the said trial date by ordinary mail. In addition in my view, this 1-month period would provide both the prosecution and the defendant sufficient time to complete all inherent requirements pertaining to the case such that by April 10th, 2010, they would be ready to conduct the subject trial. Accordingly, this one month intake period will be treated as neutral time in the context of the subsection 11(b) calculus.

3. April 11th, 2010 to November 17th, 2010 – a period of 7 months and 7 days. In my view, this period of time squarely falls into the category of institutional delay for which the prosecution is responsible. As stated above, in this proceeding, both the prosecution and the defendant would have been deemed to be ready to conduct the trial in this matter on April 10th, 2010. The delay in accommodating the trial of this matter between that date and November 17th, 2010 is solely attributable to the lack of court administrative or judicial resources.

4. November 18th, 2010 to July 27th, 2011 – a period of 8 months and 9 days. As stated above, the trial of the subject proceeding commenced on November 17th, 2010, during the course of the 1:30 p.m. tier of cases. The trial was not completed on that date and at 4:10 p.m. it was adjourned due to lack of time to complete the matter. The earliest date offered by the court administration for the continuation of the trial in the Milton Provincial Offences Court was July 27th, 2011. The suggested date was available to the prosecution and the defendant as well as the court administration however, I was not available on the said date. The Court administration then offered August 3rd, 2011 as a suggested trial continuation date. That date was available to both the prosecution and the defendant however once again I was not available on that date. The court administration then advised that the next available date was August 9th, 2011 at 9:00 a.m. That date was available to both the parties and I, accordingly, the proceeding was then adjourned to that date in the Milton Provincial Offences court for trial continuation.

   In my view the period of time between November 18th, 2010 and July 27th, 2011 is properly characterized as institutional delay. The court administration was not able to accommodate the continuation of the trial proceeding following the adjournment of the November 17th, 2010 trial for a period of time of 8 months and 9 days. Unfortunately, I, as the seized judicial officer presiding over this matter, was unavailable to conduct the trial on July 27th, 2011 and once again on August 3rd, 2011. The next date available to both the court and the parties was August 9th, 2011 and a slot on the 9:00 a.m. trial docket of that date was reserved for the continuation of the trial. This period of trial delay, between November 18th, 2010 and July 27th, 2011, weighs against the prosecution.

5. July 28th, 2011 to August 9th, 2011 – a period of 13 days. In my view this period of time properly is classified under the general category of "other reasons for delay". While the court administration and the parties were available to conduct the trial continuation in this matter on the earliest date available to the court following the November 17th, 2010 adjournment, that of July 27th, 2010, I was not available to preside over the trial continuation until August 9th, 2011. As the delay between July 28th, 2011 and August 9th, 2011 was caused by my unavailability on July 27th, 2011, the delay is not, in my view, institutional, but rather is a "trial- judge" type of delay, for which the prosecution should not be held responsible. Accordingly, this 13-day period of delay will be treated in a neutral fashion.

6. August 10th, 2011 to January 9th, 2012 – a period of 4 months and 29 days. As stated above this period of time was explicitly waived by the defendant's representative and therefore does not form part of the potentially unreasonable period of trial delay.

7. January 10th, 2012 to January 13th, 2012 – a period of 4 days. The continuation of the evidentiary phase of the trial of the subject charge did not commence on January 9th, 2012. On that date at 1:30 p.m., I commenced the hearing of the defendant's Charter application herein. The hearing of the application was not completed on that day and the Court adjourned the subject proceeding to January 13th, 2012 to be spoken to only for purposes of arranging an early trial continuation. In my view this period of time is attributable to actions of the defendant, in light of the fact that the continuation of the trial of the subject charge on its merits on January 9th, 2012 was supplanted by the hearing of the defendant's subsection 11(b) application. This period of delay weighs against the defendant.

8. January 14th, 2012 to January 18th, 2012 – a period of 5 days. On January 13th, 2012, the continuation of the hearing of the defendant's Charter application was adjourned to January 18th, 2012 at 1:30 p.m. and a target date for the potential continuation of the trial of the subject charge was set for February 21st, 2012, at 1:30 p.m. For the reasons stated above this period of trial delay is attributable to the actions of the accused/defendant in commencing his Charter application on January 9th, 2012, and therefore weighs against the defendant.

9. January 19th, 2012 to February 21st, 2012 – a period of 1 month and 2 days. The hearing of the defendant's Charter application was completed on January 18th, 2012. The Charter application was then adjourned to February 21st, 2102 at 1:30 p.m. for my judgment pertaining to the application and for the potential continuation and completion of the trial on that date. Once again as stated above, this period of trial delay is attributable to the actions of the accused/defendant in commencing his Charter application on January 9th, 2012, and therefore weighs against the defendant.

115In summary, the overall period of delay in this proceeding is 23 months and 20 days. This period of time is comprised of trial delay attributable to actions of the defendant, for which the defendant is responsible of 1 month and 20 days; trial delay waived by the defendant of 4 months and 29 days; trial delay categorized as neutral time of 1 month and 13 days and trial delay categorized as institutional delay for which the prosecution is responsible of 15 months and 16 days.

116The total amount of trial delay in this proceeding, which I have found to be attributable to institutional or systemic factors, being a period of 15 months and 16 days is a period of time well in excess of the guidelines for constitutionally tolerable institutional delay (a period of between 8 and 10 months) as established by the majority of the Supreme Court of Canada in Morin, supra. There are obviously no issues of pre-trial incarceration or restrictive bail conditions relative to the subject speeding charge. There is no basis, therefore, for the said guideline for a tolerable period of trial delay to be shortened to address any concerns relative to an alleged impairment to the defendant's right to liberty.

(E) Other Reasons for Delay

117As stated above, I have placed the trial delay in this proceeding relative to the period between July 28th, 2011 and August 9th, 2011, in this category, being other reasons for delay. The trial continuation was unable to proceed in July 27th, 2011, as suggested by the court administration, as I was unavailable to preside over the trial at that time. The earliest date available to the court administration that was also available to the parties and I, was August 9th, 2011, and the matter was spoken to on that date.

118The reason for the delay over this 13-day period of time was related to the unavailability of the seized trial justice of the peace. As stated by Sopinka J. in Morin, supra. this type of delay "is not institutional in the strict sense". In my view the scenario causing this 13-day period of trial delay is similar to a scenario when a trial judge is ill for a short period of time which in turn causes trial delay. As stated by McLachlin J. in Regina v. MacDougall, supra., trial delay related to judicial illness may be classified as neutral inherent delay or as either delay resulting from the action of the Crown, for which the Crown is responsible or institutional or systemic delay for which the Crown may be responsible. In my view the short 13-day period of delay occasioned by my unavailability between July 27th and August 9th, 2011, is, in these circumstances, properly classified as inherent delay which is weighed neutrally.

(iv) Prejudice to the Accused

119In this section, I must determine whether the defendant has suffered prejudice to any of the three individual rights which subsection 11(b) of the Charter seeks to protect, as a result of the institutional or systemic delay in the completion of the trial in this proceeding. In briefly commenting on the factor of "prejudice to the accused", in the context of the legal framework to be applied in determining the reasonableness of the length of trial delay, Laskin, J.A., in Regina v. Qureshi, et.al., [2004] O.J. No. 4711 (Ont. C.A.), stated as follows:

Two kinds of prejudice are relevant here. First the court may infer prejudice from the delay itself and is more likely to do so the longer the delay. On the other hand, an accused's action or inaction that shows a desire to avoid a trial on the merits may negate any inference of prejudice from the delay itself. Second, the accused or the Crown may lead evidence to show either prejudice or an absence of prejudice.

120During the hearing of the subject Charter application, the defendant did not lead any evidence to attempt to establish that he actually suffered prejudice to any one or more of the rights that subsection 11(b) aims to protect, as a result of the institutional delay in the completion of the trial in this proceeding. Those rights are as follows: (1) the right to security of the person "by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings", (2) the right to liberty"by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions" and (3) the right to a fair trial "by attempting to ensure that proceedings take place while evidence is available and fresh".

121Similarly, the Crown declined an opportunity to lead evidence to dispel any notion that the defendant might have suffered prejudice to the identified individual rights, as a result of the identified period of institutional delay.

122As stated by Sopinka J, in Morin, supra., I have an obligation to consider all of the circumstances in considering an inquiry into the length of any given trial delay to determine whether an accused person has suffered prejudice to any of the three interests identified above. Furthermore, the said jurist noted that "in an individual case, prejudice may be inferred from the length of the delay" and "the longer the delay the more likely that such inference will be drawn".

123In the case at bar, the period of trial delay which has been categorized as institutional delay is a period of 15 months and 16 days. This period exceeds the guidelines for acceptable periods of institutional trial delay by a differential of between 5 ½ and 7½ months.

124The excessive period of institutional delay has not affected the defendant's right to liberty in any way.

125In light of the fact that the subject charge is one of speeding under the H.T.A., which is being prosecuted under the provisions of Part I of the P.O.A., it is difficult to imagine how the delay in the trial of the charge could have impaired the defendant's right to security of the person. In this regard, I am reminded of the dicta of Mr. Justice Doherty in Regina v. Omarzadah, supra., where he made the following statements pertaining to the degree of "stigma" associated with speeding charges prosecuted under Part I of the P.O.A.:

…It must be acknowledged that any "stigma" arising out of the delay in the trial of charges like speeding is virtually non-existent. In allocating finite resources, the state is entitled to give some priority to the speedy resolution of more serious allegations.

126I agree with the comments of Mr. Justice Doherty in this regard. If the defendant were convicted of the subject speeding offence at trial, he would be liable to a fixed fine of $280.00 plus costs and victim fine surcharge. He would not face the possibility of being placed on probation or being incarcerated. Furthermore, a conviction for a minor traffic offence such as speeding would not have the same long-term consequences as a conviction for a criminal offence which could form part of one's criminal record and thereby have a potentially significant effect on one's employment and/or mobility opportunities.

127Furthermore, even if one felt that a conviction for speeding would carry with it a significant blemish on his/her reputation, it is not reasonable that trial delay in itself with respect to this minor traffic offence, would have either caused or exacerbated any symptoms of anxiety or concern which the defendant may have suffered upon being charged with the subject offence or enhanced the stigma that the defendant may have perceived as being associated with a charge of speeding.

128The period of institutional delay in this proceeding is excessive, however, I am not able to infer from the length of the trial delay alone that the defendant's right to security of the person, by "seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings", in this case quasi-criminal proceedings, has been prejudiced or impaired.

129On the other hand it is logical to infer that the defendant has suffered a risk of prejudice to his right to a fair trial and his right to make full answer and defence relative to the subject charge. It is trite to say that as time passes, memories fade. Accordingly, the greater amount of time which passes from the time of the alleged offence, the more significant the risk that any witness' ability to testify precisely as to the circumstances of an event will be impaired.

130While it is acknowledged that in this case the prosecution would likely only be tendering evidence through the testimony of Police Constable Kevin Hanowski, and that that officer would likely be able to make reference to his investigative notes to refresh his memory, one must not lose sight of the fact that the officer's memory of the event is his primary testimony and that his notes would likely only assist him in triggering his memory of matters of which he would have a recollection independent of his notes. As time passes, the officer's independent memory of the relevant events would likely deteriorate, which in turn would impair the defendant's ability to cross-examine the officer in h is effort to attempt to raise a reasonable doubt as to his guilt.

131When I consider the substantial length of the institutional delay in this proceeding relative to the administrative guidelines for that type of delay, in the context of both the fact that the defendant has made little contribution to the delay and the nature of the subject offence in respect of which a reasonable member of the public might expect "speedy justice", I am able to draw a reasonable inference that a risk of prejudice to the defendant's right to make full answer and defence has been established. On the other hand, I am of the view that the degree of prejudice suffered by the defendant to his right to a fair trial herein may only be described as "slight".

132Accordingly, in these circumstances where the defendant has not suffered any prejudice to this right to security of the person or his right to liberty and has only experienced a slight degree of prejudice to his right to a fair trial, a trial delay in the upper range of the Morin administrative guidelines for institutional delay, (in the range of 10 months) might be considered to be constitutionally tolerable. However, in the circumstances of this case where the institutional delay significantly exceeds the said administrative guidelines, the delay is not justifiable.

133The defendant has established on a balance of probabilities that his right to a fair trial in respect of the speeding charge has been prejudiced to a slight degree. I must now engage in a balancing of the interests of the accused in seeking an order staying the charge as a remedy for the purported infringement of his subsection 11(b) rights, against the societal interest in seeing that those who transgress the law are brought to trial to be dealt with according to law.

Balancing the Interests of the Defendant and the Interests of Society

134The defendant is charged with a minor traffic offence, which is prosecuted under the informal procedure codified in Part I of the P.O.A. In its decision in Regina v. Jamieson (1981), 64 C.C.C. (2d) 550 (Ont. C.A.), the Ontario Court of Appeal established the proposition that the P.O.A. was intended to establish a speedy, efficient and convenient method of dealing with offences under Acts of the Legislature and under Regulations or by-laws made under the authority of an Act of the Legislature.

135This statement of principle is consistent with the views of Libman J. in Regina v. Farokhshadfar, supra., where he noted that "the very short times lines that govern under the Provincial Offences Act make it clear that speedy justice is the hallmark of proceedings under this Act". Similarly in his decision in Regina ex.rel. City of Toronto v. Andrade, supra., Mr. Justice Libman described the P.O.A. court in Ontario as "the peoples' court", where "most persons in this province will experience the justice system in action". He noted that infractions under Part I of the P.O.A. "consist of matters for which the defendant may receive, at most, a fine, and the accompanying stigma of conviction, if any, is minor…". Furthermore in the same decision he noted that "the short time lines under Part I of the Provincial Offences Act serve to place a premium on speedy justice…".

136These various statements of principle emphasize the philosophy that minor H.T.A. offences prosecuted under Part I of the P.O.A., be prosecuted in a prompt and efficient manner in order to effectively regulate the flow of vehicular traffic on public highways, in the interests of public safety. However, in my view, the societal interest in ensuring that minor offences such as speeding be tried on their merits, tends to diminish in circumstances where, due to an inordinate amount of trial delay, inconsistent with the underlying philosophy of Part I of the P.O.A., a defendant's right to make full and answer and defence in respect of the charge, has been prejudiced.

137The offence of speeding when it is prosecuted under the procedure established in Part I of the P.O.A. is not a serious offence. The societal interest in law enforcement in respect of the charge of speeding against the defendant would, in my view, be marginal.

138I find that in light of the philosophy of Part I of the P.O.A. emphasizing speedy justice, that the interests of the defendant in seeking a stay of the subject charge as a remedy for the infringement of his subsection 11(b) Charter rights, outweighs the interests of society in having the charge tried on its merits. I maintain this conclusion even though I have found that in respect of the defendant's case, the degree of prejudice to his right to a fair trial in respect of the subject speeding charge is "slight".

139Accordingly, I find, on a balance of probabilities, that the defendants' right to be tried of the subject speeding charge within a reasonable time in accordance with subsection 11(b) of the Charter has been breached and that he is entitled to a remedy for the said breach, under the provisions of subsection 24(1) of the Charter.

THE DECISION

140In adjudicating the defendant's subsections 11(b) and 24(1) Charter application, I have engaged in a judicial balancing of the interests which subsection 11(b) of the Charter is designed to protect against factors which have either inevitably led to trial delay or have otherwise been the cause of the delay.

141After assessing and balancing these factors, I have determined that of the 23 months and 20 days of overall trial delay in this proceeding from March 1st, 2010 to February 21st, 2012, 15 months and 16 days of that period are attributable to unacceptable institutional delay, for which the prosecution is responsible.

142Furthermore, I have determined by reasonable inference, that based upon the excessive and unreasonable length of the institutional trial delay, the defendant has suffered prejudice to or impairment of his right to a fair trial in respect of the subject proceeding.

143Finally, I have engaged in a balancing of the interests of the defendant in seeking a stay of the subject charge against the interests of society in ensuring that criminal or quasi-criminal offences are tried on their merits. Upon engaging in this judicial balancing exercise, I have found that the defendant's right to be tried on the subject speeding offence within a reasonable time and his right to be granted a remedy of a stay of proceedings, if that right is denied to him, outweighs the societal interest in seeing that all persons "who transgress the law are brought to trial and dealt with according to law".

144Accordingly, I am satisfied, on a balance of probabilities, that the defendant's right to be tried of the subject offence within a reasonable time, under subsection 11(b) of the Charter, has been infringed. The appropriate and just remedy for this Charter violation under the authority of subsection 24(1) of the Charter, is a stay of proceedings.

145The charge of speeding – 111 km./hr. in a posted 70 km./hr. zone, contrary to section 128 of the H.T.A. as set out in Certificate of Offence no. 1260 - 3778757A herein, is endorsed as being stayed pursuant to subsection 24(1) of the Charter.

Released: February 21st, 2012

Signed: "Justice of the Peace Kenneth W. Dechert"