Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
Ryan Dummett
Before: Justice P. Harris
Ruling on Section 11(b) Application
Reasons for Judgment released on: May 17, 2013
Counsel:
- Ms. Sona Sood, Assistant Crown Attorney
- Mr. Norm Stanford, for the Defendant Ryan Dummett
HARRIS, P. J.:
BACKGROUND
1Ryan Dummett was charged that on March 8, 2012, he did fail or refuse to provide a breath sample (screening device) contrary to s. 254(5) of the Criminal Code. He has applied for a stay of proceedings pursuant to s. 11(b) and s. 24(1) of the Charter on the grounds of unreasonable trial delay and this application was heard on May 8, 2013, in advance of the trial date of June 11, 2013. Applications under s. 11(b) are now heard in advance of the trial date pursuant to an administrative policy in the Ontario Court designed to salvage trial time for other cases should the application succeed. I will treat this Application as if it were brought on the actual trial date of June 11, 2013.
2The trial date was originally set for August 2, 2013, but was brought forward to May 8, 2013 when that date became available. As a result of this rescheduling only 2 weeks prior to May 8th, both counsel agreed to place both the s. 11(b) motion and the trial on the docket to be heard the same day (May 8th), but as events transpired that proved to be an overly optimistic endeavour.
3When it became clear that a judgment on the s. 11(b) application could not be rendered on May 8th, following a full review of the application evidence and submissions, the trial date was set for June 11th. I see no reason to depart from our Court's usual practice of pre-scheduling the s. 11(b) motion and calculating trial delay to the actual trial date of June 11, 2013, particularly when a two-stage process should have been adopted in the first place when the matter was brought forward.
FACTS
4The facts for the purpose of this s. 11(b) application can be briefly stated: the defendant, Ryan Dummett was stopped in a R.I.D.E. Program spot check and when the attending officer formed the opinion that the defendant had alcohol in his body while operating a motor vehicle, he made a demand for an approved screening device breath sample. It is alleged that the defendant failed or refused to provide a suitable sample for testing purposes. It is agreed by counsel that the entire transaction between the officer and the defendant, during which time the alleged failure or refusal occurred, was recorded on an in-car video camera and that recording was downloaded to a DVD for disclosure purposes. It is also agreed that at the Ontario Court at Old City Hall there is an administrative directive requiring a Crown pre-trial before setting a date for a one-day trial. The Crown Attorney's office requires that requests for Crown pre-trials be made in writing.
CASE HISTORY
5Following the arrest on this charge, March 8, 2012, [information was sworn March 21, 2012] the defendant's first court appearance was April 23. On April 23 the defendant was represented by an agent for defence counsel, Mr. Stanford; disclosure was provided by Crown counsel Mr. DiMusio and the matter was adjourned to May 14 to allow counsel to review the disclosure with the defendant. On May 14, 2012 the agent for defence counsel indicated that the in-car DVD had been requested and Crown counsel stated that "we asked for it on the 30th of April. It probably should have been here but it is not yet." The case was then adjourned to May 28 in order to receive this disclosure. On May 28, 2012 an agent for defense counsel again requested the in-car DVD disclosure. Crown counsel stated that there was "no DVD available today." The defence indicated "we are anxious to obtain the DVD. Do you know when?.. Crown counsel Mr. DiMusio said "no, I don't" and then requested that the case go over three weeks for that purpose. The case was remanded to June 18, 2012.
6On June 18, 2012 the agent for defence counsel again attended and indicated "counsel is still waiting to receive outstanding disclosure…an in-car DVD. Crown counsel said it should be provided on this date." The agent then asked: "so do you have an update?" Crown counsel Mr. DiMusio stated: "Nope." The agent for the defence said: "No?" Mr. DiMusio stated: "No update. It looks like it was ordered... It looks like on April 30." Agent for the defence says: we have received confirmation from the Crown that it was going to be provided; we're just kind of waiting to receive this. So we are anxious and eager to obtain this. So I'm in my friend's hands as to putting that this matter over." Mr. DiMusio replies: "All right. I would suggest two weeks." The court comments: "Hopefully this further disclosure will be available for that time." The case is then remanded to July 9, 2012.
7On July 9, 2012 the agent for defence counsel appeared in court and stated "Counsel is still waiting on some outstanding disclosure to be provided by my friend. An in-car DVD which is listed as an exhibit in the initial disclosure. Last appearance, the Crown requested this matter be remanded to today's date for the purposes of providing disclosure." Crown counsel Ms. Kozak then stated: "Yes and we did request the video again. We had our Detective Sgt. do the same. We have not had any response yet it appears". Agent for defence counsel comments: "Your worship, I can advise that counsel's been waiting quite some time for this to be provided. Once again we are in my friend's hands with respect to an adjournment. Perhaps two weeks would be... Ms. Kozak indicates: "I would suggest three... Given the delays we have incurred so far... July 30 and I will re-request the DVD again today." The Court then states: "All right. It will be noted then as Crown delay." Ms. Kozak answers: "Yes." The Court then states: "Returning on July 30 to receive additional disclosure. And Madam Crown, I'm not sure who has carriage of this in your office but perhaps a phone call...?" Ms. Kozak then says: "It's going to be sent back to their attention Your Worship, again." The Court then says: "Even to the unit commander. Thank you."
8On July 30, 2012, the agent for defence counsel appeared for the defendant. Crown counsel, Ms. Kozak noted: "I have some DVD disclosure. An in-car DVD." The agent for defense counsel replied that: "we had anticipated that we would be receiving further disclosure today so our office requested a [Crown] pre-trial last Friday, the 27th of July. So I'm going to request the matter be put over to 20th of August for the purpose of reviewing disclosure and conducting a Crown pre-trial in the interim." Ms. Kozak then responded: "That's agreeable." The case was then remanded to August 20, 2012. On August 20, 2012, the agent for defence counsel stated the "a Crown pre-trial was requested last Friday with my friend's office. We're still waiting for the Crown to get back to us to schedule a Crown pre-trial. Does my friend have any suggestion in respect to an adjournment?" Crown counsel DiMusio responds: "Perhaps two weeks. I see the pre-trial court request form is in the brief. So that will get to the appropriate Crown and that Crown will contact Mr. Stanford, [defence counsel]. The case was then adjourned to September 10. On September 10 the agent for defence counsel stated on the record: "We're still awaiting the Crown to set up a Crown pre-trial. We requested one on July 27 and again on August 17." Crown counsel Mr. DiMusio suggests the agent attend the Crown's office to meet with an assigned Crown and try to schedule that with her. The case is then adjourned to October 1. On October 1 Crown counsel announces that "the pre-trial has now been held and the trial is set for August 2, 2013." Defence counsel indicated that "this was the earliest date offered;" defence counsel stated on the record that his earliest available date for trial was October 9th, 2012.
9On April 22, 2013, the case was brought forward from the trial date of August 2nd, 2013, to take advantage of a date that had become available on May 8th, 2013. On April 23rd, the August trial date was vacated and the delay application and the trial were set for the same date, May 8th, 2013.
10On May 8th, there was insufficient time to both complete the s. 11(b) hearing, and start the trial and accordingly, the earliest trial date was obtained from the trial coordinator (June 11, 2013) to commence the trial, should it be required.
11I propose to conduct an attribution analysis of the specific periods that constitute the total delay in accordance with R. v. Schertzer 2011 ONSC 3046.
ANALYSIS
12Whether delay has been reasonable is assessed by considering 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 (inherent time requirements, accused's actions, Crown's actions, limits on institutional resources), the prejudice to the accused and finally by balancing the interests that s. 11(b) seeks to protect: R. v. Godin, 2009 SCC 26, para 18. Accordingly, the issues under consideration will be dealt with in the above-noted order.
LENGTH OF THE DELAY
13As noted above, the total delay to trial is approximately 15 months ― from March 21, 2012 when the Information was sworn to the trial date June 11th, 2013. The overall period of delay is calculated from the date the Information was sworn, March 21, 2012 until the scheduled trial date. (See: R. v. Kalanj, (1989) 48 C.C.C. (3d) 459 (S.C.C.). A delay of this magnitude calls for an inquiry.
WAIVER OF TIME PERIODS
14There were no express waivers by the defence of any time period based on the analysis that follows. After the initial intake period, the defence position on the adjournments for preliminary activities in this case took the form of: (1) acquiescence in delay to await crucial disclosure; and (2) acquiescence in delay to await a Crown response to the written requests for a Crown pre-trial. According to s. 11(b) jurisprudence, the delay for counsel availability and preparation is more properly attributed to the inherent intake functions of a case and classified as neutral for s. 11(b) purposes.
REASONS FOR THE DELAY
(a) Inherent time requirements of the case and neutral periods
15There are two inherent time calculations required in this case: (i) the neutral intake period; (ii) the delay required for counsel availability and case preparation once the date for trial is set.
16The central issue in this case is the characterization of the approximately 6 months, 10 days of delay from the date the information was sworn (March 21, 2012) to October 1st, 2013 when all the preliminary activities had taken place and the case was ready to be set for trial. The defence takes the position that after the neutral intake period that consists of the period March 21 to May 14, the balance of the delay (4.5 months) is entirely attributable to the Crown for failing to provide a crucial piece of disclosure (the DVD) before July 30th and failing to respond to defence requests to conduct a pre-trial prior to September 25th. The Crown's submits that the period of March 21 to May 28 should be considered neutral intake. Further, the Crown argues that the period May 28th to July 30 constitutes a defence waiver of delay for failure to set a trial date after receiving substantial disclosure. The Crown accepts the responsibility for the delay in holding a pre-trial between July 27 and September 25. The Crown's position is that of the 6 months 10 days to October 1st, the first 2 months and 7 days should be considered neutral intake, the following 2 months to July 27 is (disclosure) delay waived by the defence and the two month period from July 27 to September 25 is the Crown's responsibility for failing to conduct a pre-trial.
17As noted in the case history above, there were several distinct preliminary functions that created delay in the early stages of this case: (1) the period of time required for preliminary intake functions such as retaining counsel and obtaining disclosure ― the issue being: what is the appropriate neutral intake period to be allotted?; (2) the period of time required to obtain the in-car DVD video of the alleged failure or refusal to provide a breath sample ― the issue being: was the defence was permitted to delay the setting of the trial date pending receipt of this disclosure?; (3) the period of time required to arrange a Crown pre-trial prior to setting a date for trial ― the issue being: did the Crown cause delay by being unavailable for a pre-trial meeting?; (4) the period of time required for counsel to "become ready" to try the case ― the issue being: what is the appropriate attribution of delay in respect to counsel availability and trial preparation?
18It is important to identify the relevant binding case authorities that set the theoretical framework for the determination of the four issues noted above.
(I) The Neutral Intake Period
19According to Campbell J in R. v. Mahmood 2012 ONSC 6290:
The Court of Appeal for Ontario has concluded that a reasonable neutral period of time for such "intake" matters in Ontario can vary between two months and eleven months in duration, depending upon the nature of the case and the degree and nature of the "intake" functions that must be completed. See, for example: R. v. Morin, [two months]; R. v. Sharma, [three months]; R. v. Kovacs-Tatar, (2004), 192 C.C.C. (3d) 91 (Ont.C.A.) at para. 46-47 [four months]; R. v. Seegmiller, (2004), 191 C.C.C. (3d) 347 (Ont.C.A.) at para. 14 [five months]; R. v. Steele, 2012 ONCA 383, at para. 16-17 [five months]; R. v. J.G.B. reflex, (1993), 85 C.C.C. (3d) 112 (Ont.C.A.) at pp. 115-116; Affirmed: reflex, (1993), 85 C.C.C. (3d) 112 (S.C.C.) at p. 117 [seven months]; R. v. G.(C.R.), at para. 7 [over seven months]; R. v. Ribic, at para 119-124 [over seven months]; R. v. Khan (2011), 2011 ONCA 173, 270 C.C.C (3d) 1 (Ont.C.A.) [seven and a half months]; R. v. Qureshi, at para. 27, 32, 37 [eight months]; R. v. Cranston, at para. 41-46, 52-53 [nine months]; R. v. Schertzer, at para. 71-72 [eleven months].
20On the basis of this very helpful summary, one could conclude that R. v. Morin (1972), 71 C.C.C. (3d) 1 (S.C.C.) is the template for a reasonable neutral period for all intake functions for "drinking and driving offences" and that time frame is two months. In terms of the nature and complexity of the case, one could readily conclude that a "refuse roadside breath test" charge in respect to which there was no impaired operation charge, would be the most straightforward and uncomplicated example of these type of charges ─ the only disclosure required being the police will-say and the in-car DVD recording of the interaction between the defendant and the officer. As Sopinka J. observed in Morin: "Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay." This being the case, I will assume for these purposes that a reasonable neutral period for all intake functions would be the period encompassing two remands from March 21 to May 14, a time frame of 1 month 3 weeks during which all of the usual intake activities had been completed, the only outstanding issue being the missing in-car DVD. Accordingly, I conclude that a reasonable neutral period for the intake functions in this case is the period from March 21st to May 14, 2012.
(II) Delay Caused by Tardiness in Providing the DVD Disclosure
21The first question to be resolved is whether the defendant was entitled to forego the setting of a trial date while awaiting the receipt of the in-car DVD that recorded the alleged refusal to provide a breath sample. It is important to note that the case authorities on this issue do not require that counsel set the trial date immediately following the neutral intake period. In three recent decisions, the Ontario Court of Appeal has emphasized the point that disclosure need not be complete before dates are set for trial or preliminary hearing. See R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (O.C.A.), R. v. M.(N.N.) (2006), 209 C.C.C. (3d) 436 (O.C.A.), R. v. Schertzer 2009 ONCA 742. In R. v. M.(N.N.) Jurianz J.A. held that: (at para. 37)
"Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial."
22In R. v. Lahiry 2011 ONSC 6780, Code J. in interpreting these leading decisions on the subject, observed that: (at para. 114)
It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages. This is simply common sense.
23There are at least two binding authorities that conclude that police video recordings represent crucial disclosure in these types of proceedings. If a picture is worth a thousand words, a moving picture has to be worth so much more in terms of critical decisions about whether the matter will resolve or proceed to trial. In a case where an in-car DVD of an alleged failure or refusal to provide a sample is readily available and the only other record of what transpired is an after-the-fact notation in a police notebook, it would be tantamount to professional negligence to make major decisions such as whether to proceed to trial prior to receipt and review of this crucial video recording.
24The binding authorities are quite pointed in their references to late DVD disclosure. In R. v. Farry, [2010] O.J. No. 1977 (S.C.J.), Trotter J. offered the following commentary:
[11] Before addressing the issue of the appropriate order, I wish to point out that I do share the motion judge's view about the delay involved in the disclosure of the DVD. This type of delay, which is caused by the police, is a common occurrence in the Ontario Court of Justice. In our digital world, in which data is so easily shared, there is no good reason why a copy cannot be produced in a very short period of time. In this case, it should have been available by the first appearance date (which was over a month following the arrest). Meaningless appearances are routinely made in the Ontario Court of Justice while everyone waits for the police to make copies of what transpired in the breathalyzer room. These needless appearances clog the already busy courtrooms in this province. This is unacceptable.
[12] While I recognize that it is not always appropriate to wait for every last piece of disclosure to be made before setting a trial date, a recording of what takes place in the breathalyzer room can be of great value, to both the Crown and the defence. When this type of evidence is available for viewing, informed decisions may be made about whether the case will proceed to a trial on the merits, or whether it might be resolved by way of a plea or withdrawal. It is important that this evidence be available at the earliest opportunity.
[13] Therefore, while I have decided that the motion judge's reasons were insufficient, he was right to isolate this aspect of the case for consideration. In my view, delay caused for these reasons should be afforded greater weight in the s. 11(b) calculus: see Regina v. Brown, [2005] O.J. No. 2395 (C.J.), at para. 52.
25Additionally, Wilson J. in delivering the following reasons in a summary conviction appeal (R. v. Godfrey [2005] O.J. No. 2597 (Ont.S.C.)) accepted the trial judges reasons in regard to delayed police video disclosure:
5 The learned trial judge reasons are short and are as follows:
This case raises what appears to be a recurrent problem in this jurisdiction and other jurisdictions; namely, that uncomplicated cases, and counsel are agreed that this is an uncomplicated case, video disclosure is not routinely provided at or very near to the accused's first appearance in court following a charge being laid. Indeed, it appears in this jurisdiction that the Crown insists on receiving a written request for video disclosure before a videotape is made available and disclosed. I do not understand why.
I reiterate this is an uncomplicated case and there seems to be no good reason why the form of the disclosure should make the slightest difference. This disclosure should have been provided on or near December 28th, 2001, the accused's first date for appearance in court, and if not on December 28th, 2001, very close to it. If that disclosure had been provided properly, then I am prepared to make the inference that counsel would have been in a position to set a trial date on February 21st when he was retained.
That being the case, this matter has taken far too long to get to the first trial date. The accused's Section 11(b) rights have been irreparably interfered with and, therefore, in my judgment, a stay of proceeding should issue. I want to reiterate on the record this is an apparently uncomplicated case. There may be cases where, for very good reason, video disclosure is not available on or near the accused's first appearance in court, but this does not appear to be one of those cases and those cases should be the exception rather than the norm.
6 The charges against the accused are stayed.
26As well, there is a significant body of case law on the same point from the Ontario Court of Justice. In R. v. Maxwell [2006] O.J. No. 4604 (Ont.C.J.), Lipson J. held:
21 It seems to me that if this issue was ever controversial, the time has long passed when it should continue to be so. There will be exceptionally few cases where the booking-breath room DVD does not constitute essential disclosure. In most contested drinking and driving cases, either Crown or defence plays the DVD during the trial. Defence counsel and their clients require timely disclosure of the DVD in order to make informed choices as to how best to proceed. What is shown on the DVD can have a crucial influence on the choice of plea or trial strategy. What is displayed on the DVD is always relevant to a myriad of Charter and non-Charter issues. Another important aspect to be considered is that of trial management. One of the primary functions of the judicial pre-trial is to properly assess the time requirements of any given case. The pre-trial judge and counsel factor the playing of the DVD into this estimate. Defence and Crown need to review the DVD in order to participate meaningfully in a judicial pre-trial. (See also [R. v. White 2003 O.J. No. 2554 (Ont.C.J.); R. v. Proo 2011 ONCJ 379, [2011] O.J. No. 3343 (Ont.C.J.); R. v. Meier, [1998] O.J. No. 3498 (Ont.C.J.); R. v. Rhambarose [2009] O.J. No. 6356 (Ont.C.J.) ― all to the same effect).
27Finally, I note that in R. v. Wemer (2002) 56 W.C.B. (2d) 109 (O.C.J.) I made the following comments in a case that was once again unreasonably delayed by disclosure of a video recording in a drinking and driving case. The delay was approximately 4 months for the sole purpose of copying and delivering the video recording:
It is clear to me that what is transpiring in this jurisdiction is that the police seem to be attempting to save money by not producing the videotape, at an early moment, in the hope that somebody might enter a guilty plea, and therefore, not have to provide it. I don't frankly know what expense is involved with producing the videotape, but it seems to me that the police can't have it both ways. They can't attempt to save money and at the same time argue they're not responsible for delay when it takes some extensive period of time, in this jurisdiction, to obtain a videotape of the events in the police station ... [this] is significant evidence for both the Crown and defence ... It is key evidence and, in my view, should be provided at the earliest opportunity ... when delay is caused by the lack of the provision of a videotape, then that's a responsibility that inures to the Crown and has been a problem in this jurisdiction for many years ...
28I conclude that this perennial problem of delayed DVD disclosure in drinking and driving cases has now become a systemic feature of Ontario Court litigation and in the instant case is crucial evidence that in principle should be provided before a trial date is set and accordingly, represents delay that should be attributed to the Crown. The issue seems to have become unaccountably impervious to remediation.
(III) Delay Caused by the Crown Failure to Conduct a Pre-trial
29While the recent authorities with respect to the delay caused by the need to hold a judicial pre-trial have concluded that this type of delay is part of the inherent time requirements of the case and carries neutral weight in the s. 11(b) analysis. (See R. v. Tran 2012 ONCA 18), any delay caused by the failure of the Crown to arrange its schedule to hold a pre-trial with the defence can only be the responsibility of the Crown. In fact the Crown accepts this characterization but asserts that its responsibility only extends to the date of the pre-trial, September 25th. However, the defence could not have known when the Crown would be available for a pre-trial when they agreed to a remand on September 10th for this purpose and in my view the responsibility of the Crown should extend to the next court attendance scheduled in the matter, October 1st, 2012. Clearly the Crown did not attempt to mitigate the delay by asking to have the case brought forward to September 25th, on consent. I would therefore attribute the delay from July 30 to October 1, 2012 to the Crown.
(IV) Counsel Readiness for Trial
30Finally, it is notable that recent case authorities do not accept that the period between the date the trial is set and the trial date is entirely institutional delay. As Simmons J.A. in R. v. Tran 2012 ONCA 18 observed:
[32] Second, parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. See Morin, at pp. 791-2, 794-5, 805-806. See also Lahiry, at paras. 25-37, citing Morin, R. v. Sharma, [1992] 1 S.C.R. 814, R. v. M.(N.N.), (2006), 209 C.C.C. (3d) 436 (C.A.), R. v. Schertzer 2009 ONCA 742, 255 O.A.C, R. v. Meisner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.), and R. v. Khan, 2011 ONCA 173, 2011 ONCA 173, 277 O.A.C. 165.
31The question under consideration is: what is the appropriate attribution of delay in respect to counsel availability and trial preparation? Defence counsel indicated on the record when the trial date was set that his first available date for trial was October 9th, 2012. Additionally, the fact is both counsel prepared for trial in two weeks from April 23 to May 8th, 2013 and by reason of that demonstration, it would be reasonable to allocate a two week period for trial preparation. Additionally, a two week period should be quite adequate to permit the Crown to subpoena and prepare witnesses and review applicable authorities prior to the trial date. Consequently, I will attribute 9 days in October, 2012 and two weeks prior to trial as neutrally weighted delay to be deducted from institutional delay following the date the case was set for trial.
ALLOCATION OF DELAY TO TRIAL DATE
32The above case authorities inform the proper characterization of delay periods. On the basis of this jurisprudence I have settled on the following allocations:
March 21, 2012 to April 23 to May 14, 2012 ― inherent neutral delay to retain counsel and review disclosure;
May 14 to May 28, 2012 ― Crown delay; failure to produce essential disclosure;
May 28 to June 18, 2012 ─ Crown delay; failure to produce essential disclosure;
June 18 to July 9, 2012 ─ Crown delay; failure to produce essential disclosure;
July 9 to July 30, 2012 ─ Crown delay; failure to produce essential disclosure;
July 30 to August 17, 2012 ─ Crown delay; failure to arrange a meeting for Crown pre-trial;
August 17 to September 10, 2012 ─ Crown delay; failure to arrange a meeting for Crown pre-trial;
September 10 to October 1, 2012 ─ Crown delay; failure to arrange a meeting for Crown pre-trial;
October 1 to October 9, 2012 ─ neutral delay; defence counsel not yet ready and available for trial;
October 9, 2012 to June 11, 2013 ─ Institutional delay; calculation is 8 months less two week period of neutral delay allocated to trial preparation [7.5 months institutional delay].
33On the basis of the above allocations of specific delay periods, the delay for which the Crown is responsible, including the institutional period of delay, is 12 months comprised of a 4.5 month period from May 14th, 2012 to October 1st, 2012 as well as the institutional delay of 7.5 months (See above attribution chart, above).
(b) Actions of the accused
34There was no waiver of trial delay on the part of the accused. The trial readiness delay as noted above is recorded as neutral in the calculation of overall delay in accordance with R. v. Tran, supra.
(c) Actions of the Crown
35As noted above, there have been are two periods of delay allocated to the Crown as a result of crucial disclosure delay and the failure to arrange a pre-trial meeting with defence counsel after two requests. This delay period in my view is properly calculated as 4.5 months.
(d) Limits on Institutional Resources
36The limits on institutional resources are well known in the Ontario Court of Justice, where even today, some twenty-two years after the first Supreme Court of Canada decision on s.11(b) of the Charter (R. v. Askov, [1990] 2 S.C.R. 1199) trial dates are routinely being set on dates in the future which are within and often at the upper end of the guidelines as outlined in that decision ─ and are potentially in constitutional jeopardy should the cases require any further delay. The systemic delay in this case is the period from October 9th, 2012 to the trial date June 11, 2013 less a reasonable period of two weeks for trial preparation. [7.5 months]. This is a period that is just under the Askov/Morin guidelines and by itself, while not ideal, would represent a constitutionally acceptable period of trial delay. Unfortunately, the actions of the Crown exacerbated the level of systemic trial delay in this case considerably.
(e) Other reasons for the delay
37All delay in this case has been covered in my analysis under other headings. Counsel has not argued for the attribution of delay to any other factor in this case.
38The total delay attributable to the Crown directly or pursuant to its responsibility for systemic or institutional delay is 12 months.
PREJUDICE
39The Defendant provided evidence on this issue in the form of an affidavit that was not cross-examined and as a result I accept his evidence that he experienced a more intensified degree of stress and anxiety as the trial delay became more protracted including the distraction this ongoing case has caused to him personally resulting in his work productivity suffering. In the end result, I am satisfied that the defendant has suffered a modest degree of actual prejudice to his security interests as a result of trial delay in terms of increasing stress, anxiety and negative work productivity impacts. In addition, the financial costs of a considerable number of court appearances attended by counsel, represents an additional prejudicial impact. As well, a relatively modest degree of inherent prejudice can be inferred in respect to this Applicant as a result of the general stigma, and the vexations and vicissitudes of 12 months of Crown and systemic delay in having these pending criminal accusations concluded. I do note though, that there has been no assertion of prejudice to his liberty and fair trial interests and the appropriate characterization of prejudice in this case, in terms of actual and inferred prejudice, is "modest."
BALANCING
40The final consideration involves a balancing of the problems that the delay has caused the Applicant and society's interests in having charges concluded on the merits. In accordance with R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.)"the decision as to whether s. 11(b) has been infringed is not to be made on the basis of a mathematical or administrative formula but rather by 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." It is well accepted that society's interests in a trial on the merits increases as the seriousness of the charges increases. It must be acknowledged that the charges before the court are relatively serious as all criminal charges are, but even more so in respect to the widely recognized carnage on our streets and highways caused by substance-abusing drivers. The exercise of balancing competing interests is described by McLachlan J. in concurring reasons in R. v. Morin, supra:
The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in 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.
41As noted above, the total delay directly attributable to the Crown or pursuant to its overall responsibility for systemic delay is 12 months. This trial delay is considerably above the Ascov/Morin guidelines of eight to ten months by two months. I have determined that the actual and inherent prejudice to be inferred with respect to the Applicant should be characterized as modest. It follows that the amount of delay that is "tolerable" in this case must be closer to the upper end of the range given the modest level of actual and inferred prejudice to the Applicant particularly having regard to the fact that there were no real trial delay impacts on his liberty or fair trial interests (see R. v. G.(C.R.), [2005] O.J. No. 3764 (C.A.). Consequently, this means that trial delay somewhat closer to 10 months would be "tolerable" in this case. Twelve months delay, however, is well outside constitutionally acceptable levels, even considering the modest degree of actual and inferred prejudice.
42Much has been said in s. 11(b) jurisprudence about the very strong societal interest in trying serious drinking and driving charges involving so much public harm, on the merits. Nevertheless, it is now well recognized that in cases where the Crown is responsible for a significant proportion of the trial delay, this cause of delay weighs more heavily against the State in the balancing exercise. (See R. v. McNeilly [2005] O.J. No. 1438 (Ont. S.C.); R. v. Brown [2005] O.J. No. 2395 (Ont. C.J.); This is of even greater significance given the decade-long litany of systemic failures in producing timely video recordings, an appalling circumstance for which the Crown has no answers. It seems that the police video recording service has become perversely oblivious to trial delay concerns and judicial pronouncements on this subject and almost beyond the reach of any supervisory authority (See '[contact the] unit commander" comment by the Justice of Peace, above). In balancing all the considerations, the amount of the delay, the reasons for the delay, the prejudice to the defendant arising from the delay, I am satisfied on a balance of probabilities that the defendant has established that his interests and society's interest in a prompt trial outweighs the interests of society in a trial on the merits in this case for the above-noted reasons.
43Accordingly, I have concluded that the defendant's section 11(b) rights have been breached and the charge of fail or refuse roadside breath test will therefore be stayed.
P. Harris J.
May 17, 2013.