Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Jozef Trocki
Before: Justice Jill Copeland
Heard on: November 14, 2014
Reasons for Ruling on s. 11(b) Charter application released on: December 18, 2014
Counsel:
- Angela MacArthur, counsel for the Crown
- Brian Brody, for the defendant Jozef Trocki
COPELAND J.:
Introduction
1Jozef Trocki is charged with one count of refusing to comply with a demand made by a peace officer under s. 254(2) of the Criminal Code, R.S.C. 1985, c. C.-46, to provide a sample of his breath for analysis by means of an approved screening device. Mr. Trocki has brought an application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms asserting that his right to trial within a reasonable time has been infringed, and seeking a stay of proceedings pursuant to s. 24(1). The Crown opposes the application.
2I find that the delay bringing this case to trial is unreasonable, based on an analysis of the factors outlined in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. As outlined below, after considering the reasons for the delay in each time period, I find that the institutional delay and delay attributed to the Crown is at the high end of the Morin guidelines. In such a case, the presence or absence of actual prejudice to the defendant as a result of the delay is a significant factor. Based on the evidence before me, I find that Mr. Trocki suffered actual prejudice due to the delay in the form of both emotional and physical symptoms. In the result, balancing Mr. Trocki's individual interest and the societal interest in a trial on the merits, I find that the delay is unreasonable. This is not a complex case. The evidence of actual prejudice to Mr. Trocki due to the delay is significant, and on balance renders the delay unreasonable.
Timeline
3The key dates that form the factual background to the application are set out below. Further details of what occurred on each date are expanded on as necessary in the analysis.
November 13, 2013 Date of alleged offence and arrest
November 22, 2013 Information sworn
November 25, 2013 First appearance. Crown counsel indicates that she provided Mr. Trocki with the synopsis, but that the file came in late and disclosure is not yet prepared. Crown counsel indicates that disclosure will take about one week to prepare.
December 2, 2013 Second appearance. No disclosure is provided. Crown counsel indicates that the officers' notes are on their way, and suggests it will take about two weeks to complete disclosure. Crown elects to proceed summarily. Although it was not stated on the record, counsel agreed in argument before me that Mr. Trocki was provided with the charge screening form on this date.
December 16, 2013 Third appearance. No disclosure is provided. Crown counsel indicates that the officers' notes were requested on December 2, but the Crown does not have them yet. Crown counsel suggests a two week adjournment.
January 13, 2014 Fourth appearance. Duty counsel notes on the record that disclosure has not yet been provided, and that Mr. Trocki intends to retain counsel once he receives disclosure. Crown counsel indicates that they are still waiting on the notes of two officers. Crown counsel indicates that the notes had previously been requested, and that the Crown is going to "escalate the request." Crown counsel suggests putting the matter over for three weeks. Duty counsel notes that this is his fourth appearance. Crown counsel says she is asking for three weeks because, "I don't want to make it a useless fifth appearance."
February 3, 2014 Fifth appearance. Disclosure still not provided. Crown counsel notes that the Crown brief incorrectly states that disclosure was provided on December 2, 2013, but in fact only the charge screening form was provided on that date. Crown counsel indicates that disclosure has been ordered, and suggests that three weeks are needed to provide disclosure. Duty counsel says that Mr. Trocki has asked him to tell the court this is his fifth appearance. Although this does not appear on the record of the set date, Crown counsel who argued the 11(b) motion advised me that the two sets of officers' notes that were ultimately disclosed on February 24, 2014 were provided to the Crown's office on January 20, 2014, but had not been vetted in time for the February 3, 2014 court appearance.
February 24, 2014 Sixth appearance. Crown counsel provides two sets of officers' notes as disclosure. Crown counsel describes this as "some additional disclosure" (which is incorrect as no disclosure had been provided previously, only the synopsis and charge screening form). Duty counsel indicates that Mr. Trocki says he did not receive initial disclosure. Crown corrects his earlier statement and indicates that a charge screening form and synopsis had been provided previously, and he was now providing officers' notes. The Court inquires whether Mr. Trocki has made an effort to obtain counsel. Mr. Trocki replies: "I don't have the documents," referring to disclosure. Crown counsel indicates that the Crown's office will follow-up to ensure that Mr. Trocki "gets what he doesn't seem to have at this point." Crown counsel also notes that it does not appear to be an extensive brief. Crown counsel asks that the matter go over for four weeks. It was common ground during the argument of the s. 11(b) motion that Crown counsel's comments on February 24, 2014 should be understood as meaning that the Crown was not able to confirm if the officers' notes provided to Mr. Trocki that day constituted complete disclosure.
March 24, 2014 Seventh appearance. Crown confirms disclosure is complete (no additional disclosure was provided on March 24). Crown counsel puts on the record that Mr. Trocki wishes four weeks to retain private counsel.
April 28, 2014 Eighth appearance. Retained counsel appears on behalf of Mr. Trocki. Trial date is set for December 18, 2014 for one full day. Defence counsel puts on record that there were several earlier appearances, and disclosure took several months to receive. He notes that Mr. Trocki did not hire counsel earlier because he was waiting for disclosure. He indicates that he will order the set date transcripts in relation to Mr. Trocki's s. 11(b) rights. And he indicates that the case involves a refuse charge, there will be no Charter motions (i.e., apart from 11(b)), and that he has availability for trial as early as May 1, 2014, and dates in every month and week between then and December 18, 2014.
4Mr. Trocki appeared on his own in court, with the assistance of duty counsel and a Polish interpreter, for all of the appearances prior to April 28, 2014. On April 28, 2014, retained counsel appeared on Mr. Trocki's behalf.
Analysis
5The analysis of a claim of unreasonable delay requires consideration of the following factors:
- the length of the delay;
- waiver of time periods;
- the reasons for the delay, including:
- (i) the inherent time requirements of the case;
- (ii) the actions of the accused;
- (iii) the actions of the Crown; and
- (iv) limits on institutional resources; and,
- prejudice to the accused (Morin; R. v. Lahiry, 2011 ONSC 6780).
6The court must then balance the individual and state interests that s. 11(b) of the Charter is designed to protect, against the factual background of the four Morin factors outlined above. The onus is on the applicant to show on a balance of probabilities that his right to trial within a reasonable time has been infringed.
7It was not contested that the total period of delay in this case, 4 days short of 13 months, is sufficiently long to require further inquiry. Nor does Crown counsel argue that there are any periods of waiver. Thus, this application turns on the analysis of the reasons for delay over the time period, the assessment of prejudice, and then a balancing of the individual and state interests, taking into account the reasons for the delay and any prejudice found.
8Based on the argument and record before me, the following specific issues are the focus of disagreement between counsel for Mr. Trocki and Crown counsel:
In relation to the reasons for delay:
- (i) the characterization and assessment of the period required for intake, in particular as it relates to the time required to provide disclosure;
- (ii) the time for Mr. Trocki to retain counsel, which occurred after disclosure had been provided;
- (iii) the time required for the parties to be ready for trial; and
Whether there was actual prejudice attributable to the delay.
1. Reasons for the Delay
(i) Intake/Disclosure
9The defence took the position that 6 or 7 weeks should be attributed to intake – 2 weeks for disclosure, and 4 or 5 weeks for the time for Mr. Trocki to retain counsel. The effect of the defence argument was to split the initial intake period, so that a "standard" intake period of 6 weeks to two months would also encompass the later time taken by Mr. Trocki to retain counsel.
10Crown counsel argued that the entire time from November 22, 2013 to April 28, 2014 should be treated as intake. In particular, Crown counsel argued that it was reasonable to take until February 24, 2014 to provide disclosure in this case (just over three months), and that Mr. Trocki was responsible for the time when Crown counsel did not know if disclosure was complete (February 24 to March 24, 2014). Crown counsel took the position that both the Crown and the defendant have a responsibility to ensure that disclosure is complete. Crown counsel further argued that the time Mr. Trocki took to retain counsel (March 24 to April 28, 2014) was either neutral intake or defence delay.
11Case law holds that a reasonable time for intake in a straightforward impaired driving or refusal of a breath sample case is in the range of two months (R. v. Lahiry at paras. 19-24). However, there can be some variation upward or downward depending on the relative complexity of the case (see cases cited in Lahiry at para. 19; R. v. Chi Kong Cheung, 2014 ONCJ 516 at para. 6). I accept that the neutral intake period includes not only providing disclosure, but also time for the Crown to review the disclosure materials and in appropriate cases redact, for the defendant to retain counsel, and other matters such as pre-trial meetings.
12It was agreed in the course of the s. 11(b) argument before me that the entire disclosure in this case (apart from the synopsis and charge screening form), consisted of the notes of two police officers of a total of 14 pages. This included 2 pages of a 5 page standard form that did not apply to the particular case. Thus, only 12 of the 14 pages of disclosure contained material of substance relevant to the charge. Because the charge is a refusal to provide a sample for an approved screening device at the roadside, there is no breath room video. Thus, the entire disclosure would have been available, subject to the need for review by the Crown's office, within hours of the alleged offence, as soon as the officers had made their notes.
13Further, in terms of proceeding to trial, this case is not complex. There is no Charter motion filed on the trial proper. The matter was set for a full day because of some additional time required because an interpreter was required for trial. But the substance of the case is not complex.
14Based on the authorities referred to above and the factual circumstances of this case, I find that 6 weeks is a reasonable period for intake, including for the Crown to provide disclosure in this case.
15However, it took much longer than 6 weeks for the Crown to provide disclosure in this case. On reviewing the transcripts of the various set date appearances, it is fair to characterize the approach to disclosure taken by the Crown and police as passive. In making this statement, I do not wish to criticize any individual Crown counsel. It took over two months for the two sets of officers' notes to be provided to the Crown's office by police. From that point it took the Crown's office five weeks to review 14 pages of notes and provide them to Mr. Trocki, and still another month after that before the Crown's office confirmed that disclosure was complete.
16Mr. Trocki had seven set date appearances before the Crown confirmed that disclosure was complete. There is no real explanation or justification provided as to why it took four months to provide disclosure and confirm that it was complete. This is a straightforward case, and it should not have taken as long as it did to provide basic disclosure (R. v. Farry, 2010 ONSC 2704 at paras. 11-12; R. v. Seeveratnam, [2010] O.J. No. 2815 at para. 37 (OCJ)).
17It is clear that the Crown was aware of the delay in providing disclosure. The file repeatedly passed through the hands of various Crown counsel at the many set date appearances between November 25, 2013 and February 24, 2014. Despite this, disclosure was still not provided until 3 months after the information was laid (February 24, 2014), and even when it was provided, Crown counsel was unable to say if the disclosure was complete until one month later on March 24, 2014. Although several of the Crown counsel at the set dates indicated that requests had been made by the Crown to the police for the officers' notes, no-one in the Crown's office or the police took ownership of the issue to ensure that disclosure was provided in a timely way.[1]
18As noted above, Crown counsel and defence disagree on how to characterize the time period between February 24, 2014 and March 24, 2014. In retrospect, we know that disclosure was complete on February 24, 2014, when the notes of the two officers were provided. But on that date, Crown counsel was unable to advise Mr. Trocki or the court if disclosure was complete. Defence takes the position that this period is Crown delay, as it is outside a reasonable period of intake. Crown counsel takes the position that it is neutral intake, or in the alternative is defence delay (placing an onus on the defence to ensure disclosure is complete).
19The case law is clear that it is not always reasonable for the defence to wait for every piece of disclosure it seeks before taking a next step in a proceeding such as a judicial pre-trial or setting a trial date (R. v. Farry, 2010 ONSC 2704 at paras. 11-12; R. v. Kovacs-Tatar, 2004 CanLII 42923 at para. 47 (ONCA)). But this case does not involve a situation where the defendant had the main disclosure brief, and was waiting for some minor additional piece of disclosure. In this case, the only documents Mr. Trocki was provided before February 24, 2014 were the synopsis (on November 25, 2013), and the charge screening form (on December 2, 2013). He was then provided with the two sets of officers' notes on February 24, 2014. But Crown counsel who appeared at the set date was unable to advise if disclosure was complete. As a result, on February 24, 2014, Crown counsel asked that the matter be put over a further four weeks to March 24, 2014, at which point Crown counsel was able to confirm that disclosure was complete.
20In this case, where the missing disclosure was the notes of the two investigating officers – the heart of the case – Mr. Trocki was entitled to insist that the Crown provide those notes and confirm that disclosure was complete before taking a further step in the case (Farry at paras. 11-12). The Crown's argument that Mr. Trocki had an obligation to verify if disclosure was complete would have more force in a case where an initial package of disclosure was provided at one time to the defendant. In such a case, although the defence might have additional disclosure requests, there would be reason to believe, absent further inquiry, that disclosure was complete. But that is not so on the record in this case.
21In these circumstances, I find that the Crown had not complied with its disclosure obligation until it advised Mr. Trocki that disclosure was complete on March 24, 2014. In light of my finding that 6 weeks was a reasonable period of time for intake, including to provide disclosure, in this matter, I characterize the delay from February 24, 2014 to March 24, 2014 as Crown delay.
(ii) Time for Mr. Trocki to Retain Counsel
22Argument was also made regarding how to characterize the five weeks between March 24, 2014 and April 28, 2014, during which time Mr. Trocki retained counsel. Counsel for Mr. Trocki argued that the intake period should still be 6 or 7 weeks total, but should include the 5 weeks for Mr. Trocki to retain counsel (i.e., 2 weeks immediately after the charge for the Crown to provide disclosure, and 4 or 5 weeks later for Mr. Trocki to retain counsel). Crown counsel spent some time in cross-examination of Mr. Trocki asking questions about why he did not retain counsel earlier. Crown counsel took the position in submissions that the time from March 24 to April 28, 2014 was defence delay.
23I accept as a fact that Mr. Trocki waited to retain counsel because he was waiting until he had disclosure. His evidence is supported by several of the set date transcripts. I do not accept the defence argument of splitting the intake period but still making it 6 weeks to 2 months total. Normally, retaining counsel is considered part of intake, and runs in tandem with the Crown providing disclosure. There is nothing wrong with Mr. Trocki's decision to wait until he had disclosure to retain counsel. But he cannot then truncate initial intake time, to avoid the time caused by his choice to wait to retain counsel being added to intake period in addition to the 6 weeks that I find is reasonable for neutral intake for a case of this nature.
24However, I also do not accept the Crown's argument that Mr. Trocki's failure to retain counsel earlier mitigates the Crown's failure to provide disclosure in a timely fashion. Mr. Trocki was not obliged to hire counsel earlier to force the Crown to move faster in providing disclosure. The Crown cannot rely on Mr. Trocki's decision to wait to retain counsel to relieve itself of its obligation to provide disclosure in a timely manner.
25I find that the time required for Mr. Trocki to retain counsel (March 24 to April 28, 2014) is properly characterized as neutral intake. The case law supports that time for a defendant to retain counsel is treated as part of neutral intake, absent some unusual circumstance like a change of counsel (Lahiry, at paras. 19-24). Because of Mr. Trocki's decision to wait until he had disclosure to retain counsel, the time he took to retain counsel is additional intake time. I do not characterize Mr. Trocki's time to retain counsel as defence delay, as I accept that he made a good faith decision to wait to retain counsel until he had disclosure, relying on advice from duty counsel.
(iii) Time for Counsel to Be Ready for Trial
26Counsel for Mr. Trocki took the position that 3 days was sufficient time for counsel to be ready for trial (i.e., his first available date for trial). Crown counsel took the position that 30 days should be attributed to time to be ready for trial; although she acknowledged during the course of argument that two weeks would be sufficient time to arrange for the two officers to attend pursuant to subpoena for trial.
27The case law establishes that the calculation of institutional delay between the date the trial date is set, and the trial date, should not include that entire time period, as some time is required for counsel to prepare for trial (Lahiry at paras. 25-37). Like intake, this is also neutral time. It takes into account that counsel will need to set aside time to prepare for a case, including finding time in their schedule to do that preparation. In many cases related to impaired driving, preparation time may not be lengthy (Lahiry at para. 31). But this is a fact-specific inquiry.
28In this case I find that two weeks is an appropriate time for counsel to be prepared for trial. As noted above, the case was not complex. It could be prepared by experienced counsel in a brief time. Crown counsel would need to summons the police witnesses. Two weeks is a reasonable period of time to do that. In cases where there is a Charter motion in the trial proper, often 30 days is used as a guideline for the time required for trial preparation, based on the notice requirement for a Charter application (Criminal Rules of the Ontario Court of Justice, rule 3.1). However, as noted above, in this case there was no Charter motion (aside from the 11(b) motion, which based on the record before me did not affect the trial scheduling). On the facts before me, I conclude that the parties would reasonably be ready for trial two weeks after they said they were ready to set the trial date on April 28, 2014 (Chi Kong Cheung at para. 7). Thus, the time from May 12, 2014 (2 weeks after the trial date was set on April 28, 2014) is institutional delay. This leaves 7 months and 6 days of institutional delay between May 12, 2014 and the trial date of December 18, 2014.
(iv) Conclusion Regarding Reasons for Delay
29Based on the above analysis, I characterize the time periods as follows:
November 22, 2013 to January 3, 2014 – a reasonable period for intake given the lack of complexity of the case – attributed to neutral intake/inherent requirements of the case (6 weeks);
January 3, 2014 to March 24, 2014 – attributed to Crown delay, due to late provision of disclosure (11 weeks and 3 days);
March 24, 2014 to April 28, 2014 – time for Mr. Trocki to retain counsel – attributed to neutral intake/inherent time requirements of case (5 weeks);
April 28, 2014 to May 12, 2014 – time for parties to be ready for trial – attributed to inherent time requirements of case (2 weeks); and
May 12, 2014 to December 18, 2014 – attributed to institutional delay (7 months and 6 days).
30The total time period from the date the Information was sworn to the scheduled trial date was 13 months, less 4 days. Deducting the time that was reasonably required for intake (6 weeks), the time required for Mr. Trocki to retain counsel (5 weeks – also held to be intake), and 2 weeks which was reasonably required for the parties to be ready for trial, the total period of delay which is Crown delay or institutional delay is 10 months, less a day or two.
2. Prejudice
31In this case the defence asserts that there was actual prejudice. The evidence of prejudice is discussed below. Crown counsel takes the position that any prejudice to Mr. Trocki was due to the fact of the charge, and not due specifically to the delay. She also takes the position that his health issues may simply be due to his age.
32Mr. Trocki gave evidence regarding prejudice by affidavit as follows. He is 69 years of age. He has no criminal record. He came to Canada in 1993 and is now a Canadian citizen. He is married and has two adult daughters and four grandchildren. He is retired, after working as a supervisor at a door factory for 18 years. He did not retain a lawyer initially because he was told by duty counsel to get the paperwork (disclosure) first, so that the lawyer could review it when he hired him or her. He was upset after being charged, and wanted to get the paperwork to move the case along as quickly as possible. After he retained counsel and received legal advice, he found out that if he had pleaded guilty within the first 90 days, the ignition interlock program would have been available to him (I discuss this issue further below). After he retained counsel, the lawyer attended court once, on April 28, 2014, met with Crown counsel, and set a trial date for December 18, 2014. When his lawyer told him that the trial would be in December, 2014, Mr. Trocki felt anxious and concerned about having to wait so long.
33Mr. Trocki gave evidence that he has been distraught about the charges since the beginning, but his depression and anxiety increased dramatically from July 2014. From the time that the trial date was set (April 28, 2014), his anxiety and depression grew, and since July 2014 it has been unbearable. He has experienced many sleepless nights, and episodes of severe anxiety and depression. He has also experienced high blood pressure and chest palpitations related to stress and anxiety while waiting for his case to finish. Up until the summer of 2014, he tried to manage his emotional and physical difficulties with exercise, church and natural remedies. However, at that point they became too overwhelming for him to deal with on his own.
34He saw his family doctor in August 2014. The doctor prescribed anti-anxiety and anti-depression medication and sleeping medication. His doctor also referred him to a cardiologist. This evidence was confirmed by a letter from Mr. Trocki's family doctor (Crown counsel did not object to the doctor's evidence being tendered in this form). The family doctor indicated that Mr. Trocki had developed a major depression since August 2014, and attributed the depression to his legal case. She indicates that he had become very anxious, was barely sleeping at night, and was having heart palpitations and chest pain. He cries often, and had very high blood pressure in her office on September 11, 2014. She prescribed Cipralex and Lorazepam. She continued to follow him in October and November 2014. In October his blood pressure was somewhat lowered (but still high), and she increased his dosage of Cipralex.
35Mr. Trocki stated in his affidavit that he felt that his entire life had been put on hold, and he has had difficulty concentrating, and that his emotional state has affected his relationship with his children and grandchildren.
36Crown counsel cross-examined Mr. Trocki regarding his physical and emotional symptoms. She did not challenge the fact that he was suffering the symptoms described above. Most of the cross-examination was spent on issues related to his decision not to retain counsel until he had disclosure, discussed above. In argument, Crown counsel took the position that Mr. Trocki's emotional and physical symptoms were caused by the fact of the charges or by his age, but not specifically by the delay.
37Based on Mr. Trocki's affidavit, and the evidence he gave in cross-examination, I find that Mr. Trocki has suffered actual prejudice. Although to a limited extent, his stress, anxiety and physical issues appear to arise from the fact of being charged, I find that they have been significantly exacerbated by the delay. I base this finding on the worsening of his symptoms, both emotional and physical, during the summer of 2014 and since that time. Based on Mr. Trocki's evidence, I conclude that his emotional and physical symptoms have been aggravated by the length of time that it has taken for the case to proceed, and also by Mr. Trocki's ruminating on the (not unreasonable) notion that the case could have proceeded more quickly.
38In light of the timing of the onset of his symptoms in relation to the trial delays, and the evidence from Mr. Trocki and the family doctor, I find that his symptoms are caused by the delay, and not due to age. There is no evidence before me to suggest that Mr. Trocki's emotional symptoms (anxiety, depression, sleeplessness) are age-related. Regarding the physical symptoms (high blood pressure and heart palpitations), there is also no evidence before me that they are due to his age. I accept that there may be some greater susceptibility to symptoms like high blood pressure and heart palpitations in an older person (although there is no direct evidence of this on the record before me). But in light of the timing of the onset of these symptoms in Mr. Trocki and the significant worsening of the symptoms in the summer of 2014, I find that they are due to the delay in the case proceeding, in the sense that the delay is a significant contributing factor in his developing the physical symptoms.
39I note that one aspect of prejudice which was raised by Mr. Trocki in his affidavit was effectively abandoned by counsel during the course of argument. In his affidavit, one aspect of prejudice relied on by Mr. Trocki was that because disclosure was provided outside of 90 days after the charge, he lost the ability to go into "stream A" of the provincial ignition interlock program. To be eligible for "stream A," Mr. Trocki would have had to plead guilty. However, during cross-examination by Crown counsel, Mr. Trocki was asked what prevented him from pleading guilty after the 90 days and after he had retained counsel. He responded that he had not pleaded guilty because he had not done anything wrong. He said that he had tried to blow into the machine and made all the efforts he could to do so when the police asked him to.
40I am in agreement with defence counsel's concession that this argument was no longer available on the facts once Mr. Trocki testified that he had blown in the machine and tried to blow as best he could. Since his evidence is clearly that he denies the mens rea of the offence with which he is charged, this is not a case where a guilty plea to the offence was realistically available. For this reason, I do not rely on the argument about denial of access to "stream A" in finding that Mr. Trocki suffered actual prejudice.
Balancing Competing Values
41This case is close to the line. The guidelines developed in the case law suggest that a range of institutional delay of 8 to 10 months will, in general, not be unreasonable. The 8 to 10 months referred to in Morin and its progeny are only guidelines. A shorter delay may be found to be unreasonable, or a longer delay to be reasonable, depending on the presence or absence of prejudice, and the balancing of all of the circumstances (Morin; Lahiry). There is some authority which speaks to the lower end of the guidelines of 8 or 9 months as appropriate in Peel Region (R. v. Rego, 2005 CanLII 40718 (ONCA); R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814 at 827-28; R. v. Meisner, [2003] O.J. No. 1948 at para. 74 (SC), affirmed 2004 CanLII 30221 (ONCA), [2004] O.J. No. 3812 (ONCA)). I do not read these cases as changing the guidelines set in Morin; rather, they are a recognition that the 11(b) analysis is a case-by-case, fact-specific exercise. In cases which are less complex, particularly where there is evidence of actual prejudice, delays at the lower end of the Morin guidelines may be unreasonable and infringe s. 11(b) of the Charter.
42In this case I find that the delay is unreasonable. I reach this conclusion primarily for three reasons.
43First, this is not a complex case. Indeed, on the spectrum of impaired driving related offences, it is difficult to imagine a simpler case. The case involved the events only at the roadside, since it is a charge of refusing to provide a sample for an approved screening device. The only disclosure is 14 pages of notes of the two investigating officers. There is no Charter motion on the trial-proper. This is a case which is neither complex, nor time-consuming, to prepare or to present at trial. For this reason it is the type of case where it is appropriate to look to the lower end of the Morin guidelines.
44Second, there is evidence of actual prejudice. I have outlined the evidence of actual prejudice to Mr. Trocki above. The case law is clear that in cases which are close to the line, actual prejudice will be an important factor in the analysis (Farry para. 9; Meisner at para. 74; R. v. Campagnaro, [2005] O.J. No. 4880 at para. 4 (ONCA)). From the evidence outlined above, I find that Mr. Trocki suffered significant emotional and physical symptoms as a result of the delay in bringing this matter to trial.
45Third, in balancing Mr. Trocki's interest in a trial within a reasonable time, including the finding that he suffered actual prejudice, against the societal interest in a trial on the merits, I accept that drinking and driving offences, including refusing to provide a breath sample, are serious offences. The case law recognizes that there is an important societal interest in bringing these cases to trial (Lahiry at paras. 86-89).
46But, the societal interest in prosecuting a case also impacts the Crown's obligation to bring a matter to trial in a timely way. It is difficult to give significant weight to the societal interest in a trial on the merits when the Crown has not acted on that interest by doing what it can to bring the case to trial in a timely manner (R. v. Chrostowski, 2006 CanLII 10211 (ONSC), [2006] O.J. No. 1306 at para. 42 (ONSC)).
47As noted above, in this case there was significant unjustified delay in providing disclosure to Mr. Trocki in this very straightforward case. Put simply, the Crown cannot on one hand take the position that the case is so important that the public interest requires it be tried on the merits, and at the same time, by the Crown's own actions, treat the case as not important enough to move it along in a timely manner.
48Balancing these factors together, I find that the delay in bringing Mr. Trocki to trial is unreasonable and infringes s. 11(b) of the Charter. The appropriate remedy is to stay the proceedings pursuant to s. 24(1) of the Charter.
49I wish to thank both counsel for their helpful submissions.
Released: December 18, 2014
Justice Jill Copeland
1Crown counsel at the set date on January 13, 2014 made a reference to "escalating" the disclosure request; however, there was no evidence before me as to what, if anything, was done to escalate the request.