Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Codey Boss
Judicial Officer and Counsel
Before: Justice F. Javed
Heard on: October 22, November 13, 2015, January 14, 2016
Reasons for Judgment released on: February 4, 2016
Counsel:
- K. Kennedy, counsel for the Crown
- E. Chan, counsel for the defendant Codey Boss
Judgment
F. JAVED J.:
I. Introduction
1On June 4, 2014, the Applicant, Codey Boss was charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit and impaired operation of a motor vehicle contrary to section 253(1)(b) and section 253(1)(a) of the Criminal Code.
2His trial commenced before me on October 22, 2015. The live issue before the court was identification. The Crown called two civilians and two police witnesses. On January 14, 2016, the trial completed with the parties making submissions on the merits but also another issue which had arisen in the interim. Mr. Boss alleges that his constitutional right to have a trial within a reasonable period of time as guaranteed by section 11(b) of the Charter of Rights and Freedoms (Charter) has been infringed. He seeks a remedy of a stay of proceedings under section 24(1) of the Charter. In any event, he submits, the Crown hasn't proven identification to the requisite standard.
3The total delay in this matter is approximately 18.7 months. Much of the delay was occasioned by two Crown adjournments due to the illness of witnesses. The parties disagree as to the appropriate calculation for institutional delay. I have arrived at the conclusion that the appropriate amount of institutional delay is 11.5 months, although could be as high as 12.5 months. For reasons that I will expand on below, this has resulted in a breach of Mr. Boss's section 11(b) rights. There is evidence of actual prejudice. Accordingly, a stay of proceedings under section 24(1) of the Charter as a minimum remedy, is warranted.
II. Chronology
4Given the dispute about the calculation of the unexplained delay, I propose to set out the relevant events in chronological format to inform the discussion that will follow.
| Date | Event |
|---|---|
| June 14, 2014 | Offence date |
| June 15, 2014 | Applicant released on a promise to appear |
| June 24, 2014 | Applicant retains law firm of Aitken Robertson |
| June 30, 2014 | Information sworn |
| July 4, 2014 | First appearance. Disclosure received. Matter adjourned to July 24, 2014. |
| July 24, 2014 | Second appearance. Crown pre-trial held. Trial date of one day scheduled for April 14, 2015. |
| August 18, 2014 | Counsel's first available date to conduct the trial |
| April 14, 2015 | First trial date. Crown adjournment due to officer illness. Adjournment to October 22, 2015 for trial. |
| April 27, 2015 | First date offered by Mr. Chan to proceed with trial but not available to the court. |
| June 8, 2015 | First date offered by the court to proceed with the trial but not available to Mr. Chan |
| October 22, 2015 | Second trial date. Adjourned to November 13, 2015 for continuation of trial. |
| November 13, 2015 | Crown adjournment due to illness of witness in the middle of evidence. |
| January 14, 2016 | Continuation and completion of trial. Total delay: 563 days or 18.7 months (from date when information sworn) |
III. Analysis
5In R. v. Morin, [1992] 1 S.C.R. 771, the Supreme Court of Canada developed the analytical framework to consider on a section 11(b) application. They are (1) the length of the delay, (2) waiver of time periods, (3) the reasons for the delay and (4) prejudice. There is no issue that the overall delay in this case is of sufficient length to warrant inquiry and it is not suggested that there has been any waiver of time periods. The determination of this application therefore depends on the reasons for the delay and whether and to what extent there has been prejudice.
(1) Reasons for the Delay
6In Morin, supra, the Supreme Court identified a list of relevant variables to consider when assessing the reasons for the delay. They include: (a) the inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources and (e) any other reasons for the delay.
7The parties agree that the period between June 14, 2014, when the Applicant was charged and July 24, 2014, when he set the first trial date, is properly characterized as part of the inherent time requirements of the case and therefore neutral time for the purposes of section 11(b). The parties differ on when the parties would have been ready to realistically commence the trial. Mr. Chan submits that Mr. Aitken from his law firm clearly stated his availability as early as August 18, 2014. Ms. Kennedy submits that at least a period of one month is required to allow both parties to prepare. I agree with Ms. Kennedy however not much will turn on this, as the difference is one week. In accordance with the dicta in R. v. Lahiry (2011), 2011 ONSC 6780 , 109 O.R. (3d) 187 (S.C.J.) and R. v. Tran (2012), 2012 ONCA 18 , 288 C.C.C. (3d) 177 (Ont. C.A.), some additional time should be added to the inherent time requirements. I am satisfied that Mr. Chan's law firm would have been in a position to conduct the trial within a month of setting the date. There was no Charter application filed and the case was straightforward. Thus, the period between July 24, 2014 and August 24, 2014, a period of approximately one month, is also neutral.
8The parties also agree that the time between when the parties were ready for trial and the scheduled trial date of April 14, 2015, a period of approximately 7.8 months is institutional delay. Further, there is no dispute that the time when the trial date started on October 22, 2015 to the continuation date of November 13, 2015, a period of 22 days is also institutional delay. Considering both periods, this would bring the institutional delay to approximately 8.5 months.
(a) Positions of the Parties on Attribution of Delay
9The parties disagree on the attribution of delay between the periods of the first and second trial dates - April 14, 2015 to October 22, 2015, a period of 6.3 months and the period occasioned by the second Crown adjournment being November 13, 2015 to January 14, 2016, a further period of 2 months.
10Ms. Kennedy submits that this additional period of approximately 8.3 months should be neutral in its calculation as it was occasioned by illness of witnesses and the unavailability of Mr. Chan. She argues that total period of institutional delay is 8 months 11 days and can be adequately explained. Further, this period is within the Morin guidelines and thus not unreasonable.
11Mr. Chan submits that only some of the above 8.3 months should be neutral in its consideration and instead the overall delay attributed to the Crown and institutional factors is 14 months, 17 days. In submissions, this amount was tempered somewhat, bringing it closer to 12 months.
(b) Illness of Witnesses
12The attribution of the disputed 8.3 months requires a closer examination of the circumstances underlying the two Crown adjournments and to some extent, Mr. Chan's availability. One issue will inform the other especially if the period between the first and second trial date was reasonable.
13Jurisprudence in Ontario has established that unavailability of a witness due to illness is ordinarily characterized as neutral delay. Courts have stated that illness is often unexpected and thus the delay caused by it is simply forms part of the inherent time requirements of a case. See R. v. MacDougall, [1988] S.C.J. No. 74 (S.C.C.); R. v. Gallant, [1998] S.C.J. No. 73 (S.C.C.); R. v. Hoffner, [2005] O.J. No. 3814 (Ont. C.A.); R. v. A.J.W. 2009 ONCA 661 , [2009] O.J. No. 3814 (Ont. C.A.).
14However, Rosenberg J.A. in W.(A.J.) qualified the above principle with the following at paragraph 35:
As Hill J. said in R. v. Hoffner, [2005] O.J. No. 3862, at para. 41: "Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process. In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral." Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral. If the time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay. (emphasis added)
I begin by assessing the reasonableness of the period between the two trial dates. This requires an examination of the reasons for the delay and what effect, if any, institutional factors had on this period.
(c) Limits on Institutional Resources
(i) The first Crown adjournment
15When a scheduled trial does not commence or must be rescheduled, the authorities hold that the case must be given priority in the system and that the delays resulting from rescheduling the trial date will generally be treated as institutional or as part of the inherent time requirements or a combination of both depending on the circumstances of the case. See R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3, W.(A.J.), supra; R. v. Brace 2010 ONCA 689 , [2010] O.J. No. 4474, 261 (C.A.), at paras. 14-16. As noted above, the reasonableness of the period between the trial dates must be assessed to determine how this delay is to be treated.
16The Crown sought an adjournment of the trial as an officer was ill and required an emergency procedure. Mr. Chan was notified of this two days before the scheduled trial. The trial did not commence and a new trial date was scheduled. The delay between the first and second trial date (April 14, 2015 – October 22, 2015) was 191 days or 6.3 months. In my view, this comes perilously close if not exceeding, what should be characterized as a "reasonable" amount of time for a second trial date. I say this because the initial period between the setting of the trial and the trial date was already hovering at 8 months. I'm inclined to view this 6.3 months as unreasonable because the record before me establishes that Mr. Chan was ready to proceed with a full day trial as early as April 27, 2015, some two weeks after the first trial date was adjourned and there is no explanation as to why the trial didn't commence.
17There was no evidence lead before me that the officer who was ill would not have been available in two weeks. Leaving this aside, the record is unclear as to why the trial did not commence at all on April 14, 2015 with the evidence of other witnesses. This wasn't a case where the matter was brought forward for an adjournment motion, which would have relieved the witnesses from attending on the trial date. The adjournment was on the trial date. This may have been because the Crown itself discovered late that the officer was unavailable but it doesn't explain why the Crown (not Ms. Kennedy) wasn't ready to proceed. I can reasonably infer that all Crown witnesses would have been subpoenaed. This was not a one witness case but rather hinged on the evidence of two civilian witnesses who ultimately did testify on October 22, 2015 – and testified before the police witnesses. On April 14 2015, the record reveals that Mr. Chan was ready to proceed. For some reason, the Crown wasn't and the record establishes that nothing was done to neutralize the delay that would be inevitable with an adjournment by starting the trial with other witnesses who were available. This is not to say that in all cases, the Crown must neutralize this delay but on this record, this was unexplained. There may be cases where the order of witnesses is important to the presentation of the evidence but this didn't appear to be such a case. Incidentally, if the trial had started with other witnesses in April 2015, it wouldn't have finished and a brief adjournment would have been required to complete the evidence of the ill officer. However, I very much doubt that the continuation date would have pushed this case into section 11(b) territory. In the circumstances, I find that despite the illness, the period of 6.3 months was unreasonable. I must therefore assess how much of it should be institutional. This leads me to the related issue involving the schedule of defence counsel.
(ii) The schedule of defence counsel
18In Godin, supra, Cromwell J. writing for the Court stated that unavailability of defence counsel in situations such as the case before it, should not be characterized as waiver or defence delay. He stated:
Scheduling requires reasonable availability and reasonable cooperation; it does not, for section 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry - efforts which were ignored - suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable."
19Ms. Kennedy acknowledges the soundness of the Godin principles but instead emphasizes the dicta of Code J. in Lahiry and the Ontario Court of Appeal in W.(A.J.) in submitting that the periods of time during which Mr. Chan was unavailable should be counted as neutral time.
20Godin was cited by the Court of Appeal in W.(A.J.) and simply means that whether the unavailability of defence counsel will count as neutral delay will depend on the circumstances of the individual case. As noted above, the trial didn't commence due to the Crown requesting an adjournment as an officer was ill. The date selected by the parties with the assistance of the trial coordinator was October 22, 2015, some 6.3 months later. The first available date offered to Mr. Chan was June 8, 2015 but he was not available. He was also not available on: June 25, 26, August 17, September 14, 16 and October 19, 2015. The parties agreed that the matter was going to take a full day. The court was thus available to accommodate Mr. Boss's matter on June 8, 2015 but Mr. Chan wasn't. However, this ignores the fact that Mr. Chan was available for trial on many dates before June 8, 2015. They were: April 27, May 6, 7, 20, 21, 26, 27, June 4 and 5, 2015. He was also available on several dates between June 8 and October 22, 2015.
21In my view, to characterize this entire period of 6.3 months as neutral delay because Mr. Chan was not available is incorrect for two reasons. First, it ignores his availability as mentioned above. Ms. Kennedy did not resist the position that Mr. Chan would have been ready for trial in two weeks after the first adjournment. The time period for delay due to the limitation of institutional resources starts to run when the parties are ready for trial but cannot be accommodated by the system. Some of this 6.3 months should count as institutional as the court wasn't ready to accommodate the Applicant's trial while Mr. Chan was. While there's no precise formula for doing so, a cautious approach would be to consider the period from April 14, 2015 to June 8, 2015, the earliest available time to the court, as institutional. This would amount to 55 days or approximately 2 months. Mr. Chan submits half of the 6.3 months or 3 months should be institutional but I decline to do so as one can expect some delay in rescheduling a trial. I will treat the balance of 136 days or approximately 4.3 months as neutral or inherent delay.
22Given that the initial reason for the delay was itself unreasonable, the burden is on the state to show that the system was available to accommodate the trial. See Morin at p.788; W.(A.J.) at para 34 per Rosenberg J.A. In my view, the same approach is warranted in this case. A period of 55 days, considering the first available date when the court was ready to accomodate the trial is entirely reasonable as institutional delay.
23Second, on October 22, 2015, Mr. Boss's matter was scheduled to start in courtroom 404 commencing at 9:30 a.m. marked for a full day. The affidavit of Crown counsel, David Slessor, filed by Ms. Kennedy reveals that the matter was traversed into courtroom 403 as the two courtrooms had been combined. Importantly, this was known to the Crown as of September 2, 2015. On that date, the trial coordinator made a decision to combine both courtrooms on October 22, 2015 in order to make a judge available to preside over an unrelated matter where the defendant was in custody. The in custody matter was set on August 10, 2015 and was scheduled for three days including October 22, 2015. The matter had been prioritized by the Crown (not Ms. Kennedy). The effect of this is that Mr. Boss's matter was placed on a docket with three other matters, one of which was on its third trial date.
24Mr. Boss's matter was eventually traversed into my courtroom where Mr. Chan was tending to another matter. He does not dispute that he was occupied until 10:45 a.m. receiving judgment. When a decision was made to traverse Mr. Boss's matter into my court, the trial started at noon, ending at 4:00 p.m. The examination in chief of a civilian witness, Cheryl Balson had been completed.
25The effect of this is that had Mr. Boss's matter stayed in courtroom 403, it is highly unlikely it would have been reached in any event resulting in further delay but thankfully for him that didn't happen. The fact that Mr. Chan was not available until 10:45 a.m. is of no moment because a court was not available to start his trial regardless.
26I do not attribute the delay in starting the trial late to the actions of the Crown, as scheduling criminal trials is often challenging and dependent on many variables. Giving an in custody matter priority is an entirely appropriate decision by the Crown. While I cannot completely fault the Crown for this, I also can't fault the actions of the Applicant or Mr. Chan. As noted above, the burden is on the state to show the system could accommodate his trial on October 22, 2015 and that burden wasn't met in this case. I've taken a cautious approach in calculating the institutional delay and apportioned only 55 days (April 14 – June 8, 2015) as such. This brings the institutional delay to a total of 10.5 months.
(iii) The second Crown adjournment
27A further delay was occasioned by a Crown adjournment on November 13, 2015, when Ms. Balson couldn't attend for her cross-examination as she too, was ill. The Crown learned of this on the continuation date and not before. This resulted in another adjournment to January 14, 2016, a period of 61 days or 2 months. Ms. Kennedy submits that this too should be neutral in its attribution. Mr. Chan submits only some of it should be neutral. I agree with Mr. Chan.
28Again, the issue is whether this period itself is unreasonable. In the circumstances of this case, I find that it too is unreasonable. When a case does not finish and a continuation date must be obtained to complete the trial there is binding appellate authority that emergency measures must be undertaken to salvage cases at risk. See R. v. M.(R.) (2003), 178 O.A.C. 243 (Ont.C.A) per MacPherson J.A. This was a case at risk as by this time, the overall delay was hovering at 15 months – well beyond the institutional guidelines.
29While the adjournment was caused again by illness, I cannot ignore the effect of it on the trial process and thus the interests protected by section 11(b) of the Charter. Ms. Balson had testified in chief and was yet to be cross-examined when she became unavailable. There is no evidence before me about any emergency measures taken to canvass any earlier dates before January 14, 2016 when clearly the need to complete her evidence was pressing. Mr. Chan did not contribute to any unreasonable delay – even when Ms. Balson became unavailable. On November 13, 2015, when he learned that she was not available, he neutralized any prejudice (and delay) by not seeking an adjournment of the trial to complete her evidence. Instead he took the very reasonable position of agreeing to start with another witness and returning to the cross-examination of Ms. Balson when she was available. In a case which hinged on the identification evidence of civilian witnesses, this approach could arguably have prejudiced his client. Instead, the trial forged ahead.
30I cannot attribute this further delay to the actions of the Crown but there was an institutional consequence. When the parties attended at the trial coordinator to obtain a half-day to continue the trial, they were advised that the court was not available between November 16, 2015 and January 7, 2016. The first available date offered to the parties was January 7, 2016, which was unavailable to the Crown. Not much turns on this one-week period as it's negligible in the overall calculation. The court was not ready to accommodate Mr. Boss until January 7, 2016 – a period of 55 days. I harken back to the comments of the Court of Appeal in W.(A.J.), supra, that the evidentiary burden is on the state to show that the system was able to accommodate his trial if the initial reason for the delay was institutional. Here, Ms. Kennedy quite appropriately conceded that the period from October 22 to November 13, 2015 was institutional. On November 13, 2015 when Ms. Balson didn't attend, the proverbial section 11(b) clock was ticking. In my view, some, if not all, of this 55 day period must be considered institutional especially because this was a continuation of a second trial date where a witness was to be cross-examined. In the unique circumstances of this case, the delay of 55 days was unreasonable and I would treat at least half of it, or one month, as institutional delay.
(iv) Conclusion on attribution of delay
31When this period factors into the calculus, I find that the total institutional delay is closer to 11.5 months. This is a cautious calculation and likely could be closer to 12.5 months. In Morin, supra, it was held that the appropriate guideline for institutional delay at this level of court was 8 to 10 months. The application of these guidelines will be influenced by the absence or presence of actual prejudice; that is, additional prejudice beyond that inherent in any delay. See R. v. Tran, 2012 ONCA 18. Thus, even without considering the 2 month delay occasioned by the unavailability of Ms. Balson, the period of 10.5 months alone warrants close scrutiny.
(2) Prejudice
32In assessing this factor, there is a difference between prejudice arising from merely being charged with a criminal offence and prejudice occasioned by the delay. See R. v. Quereshi, [2004] O.J. No. 4711 (C.A.); R. v. Kovacs-Tatar, [2004] O.J. No. 4756 at para 32. The right to security of the person guaranteed under section 11(b) of the Charter seeks to minimize "the anxiety, concern and stigma of exposure to criminal proceedings" (see Morin, supra at para. 28). In R. v. Silveira, [1998] O.J. No. 1622 Hill J. explained at p. 53 that '[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial'. He accepted, however, that the delay to trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines.
33In R. v. McDevitt, 2011 ONCJ 773 , [2011] O.J. No. 5948, Justice MacLean from this jurisdiction, undertook an exhaustive review of the law of prejudice and commented that proof of significant actual prejudice will inevitably lead to stricter adherence to the [Morin] guidelines. I agree. See also R. v. K.G., 2009 ONCA 131 (Ont.C.A.); R. v. Nadarajah, 2009 ONCA 118 (Ont. C.A.)
34Mr. Boss swore an affidavit asserting prejudice and was cross-examined by Ms. Kennedy. He is 25 years old and has no criminal record. In September 2014, some three months after being charged, he enrolled in a three-year computer programming course at Durham College. In April 2015, he started working as a dishwasher at a pub earning $11.00 per hour and volunteering at the same time as an office administrator at Durham College. This turned into paid employment at the rate of $12.00 per hour in November 2015.
35He testified that as a result of the criminal charges he is stressed about losing his driver's license and incurring a criminal record. He added that he had to skip his classes on two occasions to attend for his trial dates. In April 2015, he was taking two classes. One class had a lecture and lab format and he missed the lecture format to attend for his trial which didn't proceed as scheduled. He was able to make up the lab class but the missed lecture impacted his grades as he got a poor grade on his lab work. It was his lowest grade for that class. Despite this, he passed all classes. In October 2015, when he attended court a second time for his new trial date, he missed an exam review as his mid-term examinations were scheduled for November. He didn't have to miss any exams.
36He explained that his long-term common law partner, Kimberly Moreau, was interviewed by the police and subpoenaed by the Crown as a witness. I learned in submissions that she was the registered owner of the car allegedly driven by Mr. Boss. She attended court with him on all three occasions. In October 2014, some three months after Mr. Boss was charged, the couple got married. On her third attendance in court, (November 13, 2015), she was told by the Crown that she was no longer required as a Crown witness. I infer from this that she was still under subpoena on April 14, 2015 and October 22, 2015. He added that her being subpoenaed has added stress to their relationship and since September 2015, she has been seeing a psychologist for one on one counseling. The couple had to take out a consolidated loan to pay his legal fees which included paying for the additional dates and the section 11(b) motion.
37Ms. Kennedy submits that the evidence of prejudice relating to his education, stress and financial burden emanates from being charged with the offences and not the delay. It is insufficient to warrant a breach of his rights. With respect, I disagree, especially as it relates to the evidence of stress. Increased stress and additional legal fees are well recognized as being associated with delays resulting from a trial not being reached. See R. v. McMunn (2008), 2008 ONCA 520 , 233 C.C.C. (3d) 454 (Ont. C.A.); McDevitt, supra. I am prepared to place some additional weight to the factor of increased fees as this case was not complex. Unlike many other drinking and driving cases, this case did not involve a Charter application. The issue was straightforward: identification of the driver. Despite this, the couple had to take out a loan to fund the delayed proceedings. The additional expense of the section 11(b) motion was completely unforeseen.
38I cannot accept the position that any evidence of additional stress to Mr. Boss emanates from the charge itself. Ms. Kennedy, in a careful submission argued the fact that Mr. Boss's spouse was involved doesn't mean too much as her involvement stemmed from Mr. Boss being charged and not the delay. I agree, but only in part. The involvement of Kimberly Boss is unusual. It is somewhat ironic that the couple had to take out a loan to help fund Mr. Boss's defence while at the same time being compelled to testify against him at his trial. While it's unclear when she was subpoenaed to testify, she carried this burden with her until November 13, 2015 – two months before she started counseling and some 17 months after Mr. Boss was charged. In addition to taking three days off as vacation to attend court – as a Crown witness, it is unclear why it took so long to advise her that she wasn't needed as a witness.
39I would tend to agree with Ms. Kennedy that any stress would have been inherent if in fact Mrs. Boss was an integral part of the prosecution but that's not the case. Here, she ultimately did not testify despite being subpoenaed. It's noteworthy that at the time when Mr. Boss was charged, her legal status as a common law partner meant that she was competent and compellable for the prosecution, but that changed when they got married some three months later. There is no evidence that this was deliberately done for an improper purpose. Given the history of the matter, it's only reasonable to infer that shortly after the trial date was set, she would have been subpoenaed but in the interim, her availability – legally speaking – as a witness changed. As a spouse (no longer common law), she would not be competent or compellable for the prosecution but this too changed on July 23, 2015 when the spousal incompetency rule in section 4 of the Canada Evidence Act was repealed by Parliament. I was advised that neither the police nor the Crown knew of their marital status. Mr. Chan doesn't take issue with this and nor do I. The point is that for some period of time, when she was arguably not legally competent to testify, she was still under subpoena. The spousal incompetency rule had been firmly established in law before it was repealed in 2015 and spouses could only testify against their spouses in very limited circumstances (where the charge involved the spouse, or the spouse's liberty or health of the person). See R. v. Nguyen, 2015 ONCA 278 , [2015] O.J. No. 2098 (Ont. C.A.) None of the circumstances were present in this case. One of the policy reasons behind the rule included forcing a spouse to testify against one's spouse would disrupt marital harmony. Here, it's unfortunate that their marital status (and Mrs. Boss's need to testify) was not canvassed earlier.
40It is even more unfortunate that the circumstances resulted in Mrs. Boss seeking psychological counseling. While the record reveals that the criminal charges may not have been the only reason for the marital discord, the timing of her counseling is important. She started counseling in September 2015, some 15 months after her husband was charged. Had her husband's trial completed in April 2015 or shortly thereafter, perhaps things would have turned out differently but one will never know. I can reasonably infer that the delayed proceedings were a source of the discord if not the main source. If she was seeing a psychologist before the charges were laid, the circumstances may very well be different but that's not the case. I accept Mr. Boss's evidence that she was not seeing a psychologist before he was charged and "most" of the arguments they had "had to do with this case". He was privy to her "homework" assigned by her psychologist, which related to their various issues.
41In K.G. supra, the Ontario Court of Appeal in characterizing the prejudice that flowed to an elderly accused facing allegations of historical sexual offences stated the following:
[39] Clearly there is evidence that the fact of these charges has caused stress to the respondent and has been a source of friction between him and his wife, a fact true of anyone facing serious criminal charges. Institutional delay does not cause this stress, it can only at best prolong or exacerbate it.
Here, the circumstances are different as the confluence of factors meant that any prejudice that flowed from being charged with a drinking and driving offence not only impacted Mr. Boss but also his wife. The delay in this case actually caused the stress as opposed to prolonging it. In any case, the weight of criminal charges will impact family members in different ways but the prejudice analysis must focus on the Applicant. To be clear, I am not concluding that in all cases where there is evidence of stress to family members, it will always impute stress to an Applicant. Each case must be assessed on its own. Given the very unique circumstances of this case, it would be artificial to conclude that any prejudice derived from stress only accrued to Mrs. Boss and not her husband.
42In Godin, supra, the Supreme Court commented that the entire period of the delay, that is the time period from the charge to the completion of the trial, is properly considered in assessing inferred prejudice. While the period of 18.7 months may lead to this conclusion as well, here there is evidence of actual prejudice as described above. Moreover, it does not appear that Mr. Boss could have done anything to mitigate this prejudice. I find that both he and his spouse were prejudiced by the delayed proceedings above and beyond what could be reasonably expected.
(3) Balancing
43This case was exceptional and took many unfortunate twists and turns in arriving at the finish line. While I cannot fault the Crown for the many twists, I simply cannot turn a blind eye to the 11.5 months of institutional delay. I am mindful of the seriousness of drinking and driving offences (Lahiry, supra at para. 89) but when I carefully balance Mr. Boss's interest in having a trial within a reasonable time with the societal interest in having a trial on the merits, I conclude that Mr. Boss's section 11(b) rights have been infringed. This was not a complex case and Mr. Boss did everything he could to get his matter heard in a timely way. While the period of 11.5 months doesn't miss the mark by much and in other circumstances may not result in a remedy, the evidence of actual prejudice in this case clearly tips the scales in his favor. In R. v. Rahey, [1987] 1 S.C.R. 588, Lamer J. writing for the Supreme Court held that the minimum remedy for a violation of section 11(b) is a stay of proceedings. Despite being a "drastic remedy", on balance, in light of all the factors in this case, it is warranted.
III. Conclusion
44The application under section 11(b) of the Charter is granted. The proceedings are stayed pursuant to section 24(1) of the Charter.
45Given that my conclusion on the constitutional infringement is dispositive of the case, I need not consider the arguments raised by the parties on the substantive issues. I would like to thank both counsel for their helpful material and focused submissions.
Released: February 4, 2016
Signed: "Justice F. Javed"