Court File and Parties

Court File No.: Halton - Burlington 1260-3761505A

Date: 2012-09-17

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Tsui-Ping Tali Wong

Application Under Subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms

Before: Justice of the Peace Kenneth W. Dechert

Heard on: January 9th, 2012, January 27th, 2012 and May 4th, 2012

Reasons for Judgment released on: September 17th, 2012

Provincial Offences Court – Burlington, Ontario and Milton, Ontario

Counsel:

I. Lagden — for the prosecution

K. McLean — representative for the defendant Tsui-Ping Tali Wong

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

Statutes, Regulations and Rules Cited

• Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, ss. 11(b) and ss. 24(1)
• Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, s. 109
• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to May 17th, 2010, s. 130
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to May 17th, 2010, Part I

Cases Cited

• Barker v. Wingo, 407 U.S. 514 (1972)
• Mills v. The Queen, [1986] 1 S.C.R. 863 (S.C.C.)
• Regina v. Allen, [1996] O.J. No. 3175 (Ont. C.A.)
• Regina ex. rel. City of Toronto v. Andrade, 2011 ONCJ 470, [2011] O.J. No. 4245 (Ont. C.J.)
• Regina v. Askov, et. al., [1990] 2 S.C.R. 1199 (S.C.C.)
• Regina v. Aujla, 2010 ONCJ 531 (Ont. C.J.)
• Regina v. Beason, (1983), 36 C.R. 73 (Ont. C.A.)
• Regina v. Bennett (1991), 64 C.C.C. (3d) 449; [1991] O.J. No. 884 (Ont. C.A.)
• Regina v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 (Ont. C.A.)
• Regina v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.)
• Regina v. Donaldson, 2010 ONCJ 3 (Ont. C.J.)
• Regina v. Farokhshadfar, [2001] O.J. No. 6015 (Ont. C.J.)
• Regina v. Fortuin, [2004] O.J. No. 4965 (Ont. C.J.)
• Regina v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.)
• Regina v. Hawkins (1991), 6 O.R. (3d) 724 (C.A.); aff'd (1992), 11 O.R. (3d) 64 (S.C.C.)
• Regina v. Hussain, [2005] O.J. No. 158 (Ont. C.J.)
• Regina v. Kalanj, [1989] 1 S.C.R. 1594 (S.C.C.)
• Regina v. Khan, 2011 ONCA 173 (Ont. C.A.)
• Regina v. Syed Khan, (unreported – January 7th, 2011 – Halton Provincial Offences Court file no. 95128045), (Ont. C.J.)
• Regina v. Kovacs-Tatar, [2004] O.J. No. 4756 (Ont. C.A.)
• Regina v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071; 2011 ONSC 6780 (Ont. S.C.)
• Regina v. M.(R.) (2003), 180 C.C.C. (3d) 49 (Ont. C.A.)
• Regina v. MacDougall (1998), 128 C.C.C. (3d) 483; [1998] 3 S.C.R. 45 (S.C.C.)
• Regina v. Morin, [1992] 1 S.C.R. 771 (S.C.C.)
• Regina v. Omarzadah, [2004] O.J. No. 2212 (Ont. C.A.)
• Regina v. Philip (1993), 80 C.C.C. (3d) 167 (Ont. C.A.)
• Regina v. Rahey, [1987] 1 S.C.R. 558 (S.C.C.)
• Regina v. Satkunanathan (2001), 152 C.C.C. (3d) 321 (Ont. C.A.)
• Regina v. Silveira, [1998] O.J. No. 1622 (Ont. Ct. (Gen. Div.))
• Regina v. Smith, [1989] 2 S.C.R. 368 (S.C.C.)
• Regina v. Smith, [1989] 2 S.C.R. 1120 (S.C.C.)
• Regina v. Tran et. al., 2012 ONCA 18 (Ont. C.A.)
• Regina v. Tremblay, [1987] 2 S.C.R. 435 (S.C.C.)
• Regina v. W.(A.J.) (2009) 2009 ONCA 661, 257 O.A.C. 11 (Ont. C.A.)

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

INTRODUCTION

[1] Under Certificate of Offence no. 3761505A, the defendant/applicant Tsui-Ping Tali Wong, hereinafter referred to as "the defendant", stands charged that she on the 17th day of May, 2010 at 7:45 a.m., at Queen Elizabeth Highway (QEW) eastbound in the Town of Oakville, did commit the offence of careless driving, contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to May 17th, 2010, hereinafter referred to as "the H.T.A." The procedure under Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to May 17th, 2010, hereinafter referred to as "the P.O.A.", is applicable to this proceeding.

[2] On the 25th day of March, 2011, the defendant entered a plea of not guilty to the subject charge and a trial of the matter ensued before me. I then became seized of the trial.

[3] As the trial was not completed on the said date, it was adjourned to August 23rd, 2011 at 1:30 p.m. The trial was further adjourned to January 3rd, 2012 at 1:30 p.m. and to January 9th, 2012 at 9:00 a.m. for continuation.

[4] On January 9th, 2012, the defendant commenced an Application under subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, hereinafter referred to as the "Charter". In that application, the defendant submitted that her right to be tried of the subject charge within a reasonable time, as guaranteed by subsection 11(b) of the Charter, had been breached. She argued that the Court should stay the subject charge pursuant to subsection 24(1) of the Charter.

[5] The parties made submissions pertaining to the subject Application on January 9th, 2012, January 27th, 2012 and May 4th, 2012, when they completed their arguments. The Application was then adjourned to September 17th, 2012, for my judgment.

[6] The prosecution was represented by Mr. I. Lagden. The defendant was represented by her legal representative, Mr. K. McLean.

THE DEFENDANT'S NOTICE OF CONSTITUTIONAL QUESTION

[7] In a Notice of Constitutional Question under section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, hereinafter referred to as the "C.J.A.", dated and filed in the Burlington Provincial Offences Court on January 5th, 2012, the defendant advised that she intended to claim a remedy under subsection 24(1) of the Charter in relation to an act or omission of the Government of Canada or Ontario. She advised that the question was to be argued on Monday, January 9th, 2012 at 9:00 a.m., at 2051 Plains Road East, Burlington, Ontario [the Burlington Provincial Offences Court].

[8] In his affidavit of service sworn on the 9th day of January, 2012, the defendant's representative testified that on January 5th, 2012 he served the subject Notice of Constitutional Question on the Ministry of the Attorney General and the Department of Justice for Canada by facsimile transmission and that on the same date he personally served the Notice on the office of the prosecutor from the City of Burlington.

[9] In the Notice, the defendant made reference to her affidavit sworn on the 9th day of January, 2012, setting forth the "material facts giving rise to the constitutional question". In the said affidavit, she testified as follows:

I Tsui Ping T. Wong of the City of Brampton, in the Province of Ontario, make oath and say as follows:

1. I am the Applicant and as such have personal knowledge of the facts deposed to herein except where such is stated to be based on information and belief, in which case I believe such to be true.

2. I am charged on a Part I Certificate of Offence, which alleges that on May 17th, 2010, I committed the offences [sic.] of Careless Driving, contrary to section 130 of the Highway Traffic Act.

3. I have been ready and willing to conduct my trial since the offence date.

4. I filed my ticket with the court within the allotted time, requesting a trial.

5. A trial date was scheduled for me by the court for March 25th, 2011.

6. The [sic.] was the first date scheduled for the trial and it was provided to me by the court.

7. On March 25th, my trial commenced, but was however not completed.

8. The prosecution has not yet completed their case.

9. I have not yet had an opportunity to make full answer and defence to the charge which is afforded to me under the provisions of The Provincial Offences Act.

10. The matter was adjourned to August 23rd, 2011 primarily due to lack of time.

11. I learned from my Paralegal that the hearing would be adjourned from the August 23rd date, as the Justice of the Peace hearing my matter had become ill and would not be in a position to continue my matter.

12. My trial was then adjourned to January 3rd, 2012.

13. This was the third date scheduled for my hearing and it was set by the court.

14. I am highly sympathetic to the fact that His Worship had become ill, however, the fact that I had to wait, nearly 20 months to make full answer and defence at my trial has had a detrimental effect on my emotional well-being for longer than I should have had to. I often worried about the eventual outcome of these proceedings, including the penal and financial consequences, and further if I am found guilty, the impact that this will have on my insurance rates and my ability to drive.

15. In addition, I cannot recall all of the details of the incident given the length of time that has passed since the incident.

16. I have not waived my right to a trial within a reasonable time.

17. I make this affidavit in support of my application for a stay of proceedings and for no improper purpose.

[10] Furthermore, in the said Notice of Constitutional Question, the defendant set forth the legal basis for the constitutional question as follows:

THE GROUNDS FOR THE APPLICATION ARE AS FOLLOWS:

1. That the Applicant's [Defendant's] right to be tried within a reasonable time, as guaranteed under section 11(b) of the Charter, has been breached.

2. That the Applicant [Defendant] has suffered prejudice as a result of the delay occasioned in the matter herein.

3. That in all of the circumstances, the most appropriate remedy is a stay of proceedings, pursuant to Section 24(1) of the Charter.

4. Such further and other grounds as the applicant may advise and this Honourable Court may permit.

5. That by virtue of the Charter breach, the defendant will not have a fair trial as guaranteed by section 11(c) of the Charter.

6. That it would not bring the administration of justice into disrepute to exclude the evidence or stay the proceedings as the application was brought forward in a timely fashion and the Crown was given due notice.

[11] As stated above, the continuation of the trial in this proceeding was adjourned from August 23rd, 2011 to January 3rd, 2012 at 1:30 p.m. While the prosecution was prepared to proceed with the continuation of the trial on that date, the defendant's representative commenced an application under subsections 11(b) and 24(1) of the Charter, by means of a document described as a "Notice of Application and Constitutional Issue". The Charter application did not proceed at that time, as the defendant had served the "Notice" on the Attorney General of Ontario, the Attorney General of Canada, and the Office of the Prosecutor from the City of Burlington by facsimile transmission in the evening hours of January 2nd, 2012, the evening prior to the application hearing date.

[12] In light of the fact that the defendant's Charter application had not been adequately served on the Attorney General of Ontario and the Attorney General of Canada, the trial and the Charter application were adjourned to January 9th, 2012 at 9:00 a.m. In this regard, the Court granted the defendant the opportunity to prepare a "Notice of Constitutional Question" in accordance with section 109 of the C.J.A. and ensure that it was properly served on both the Attorney General of Ontario and the Attorney General of Canada, by January 5th, 2012.

[13] The defendant's representative prepared a "Notice of Constitutional Question" dated January 5th, 2012, returnable on January 9th, 2012 at 9:00 a.m. He filed this document with the Provincial Offences Court in Burlington, Ontario on January 5th, 2012 and served it by means of facsimile transmission on both the Attorney General of Ontario and the Attorney General of Canada later that evening.

[14] The defendant's Charter application commenced before me on January 9th, 2012. During the course of that hearing the defendant's representative expressly waived the defendant's rights in the subject proceeding, under subsection 11(b) of the Charter, from and including January 3rd, 2012 to the time of my judgment relative to the Charter application. The defendant has, therefore, waived her right to her trial of the subject charge within a reasonable time for the period from and including January 3rd, 2012 to and including September 17th, 2012.

THE EVIDENCE

[15] At the outset of the hearing of the defendant's "Notice of Constitutional Question" on January 27th, 2012, I marked the following documents as exhibits to the application:

1. Notice of Constitutional Question, dated January 5th, 2012;
2. The affidavit of service of Kerlan McLean, sworn on the 9th day of January, 2012;
3. The applicant's [defendant's] factum in this proceeding;
4. The affidavit of the defendant, Tsui-Ping T. Wong, sworn on the 9th day of January, 2012; and
5. The transcript of the subject proceedings of August 23rd, 2011.

[16] I have taken judicial notice of the following documents which form part of the Court record in this proceeding:

1. Certificate of Offence no. 1260-3761505A, prepared by Provincial Offences Officer R. Conant, charging the defendant with careless driving contrary to the provisions of section 130 of the Highway Traffic Act, emanating from an alleged offence date of May 17th, 2010. This certificate was filed in the Provincial Offences Court in Burlington, Ontario on May 20th, 2010;

2. The "Notice of Intention to Appear" in respect of the subject proceeding, signed by the defendant on May 17th, 2010 and filed in the Provincial Offences Court in Burlington, Ontario on May 17th, 2010. In this document, the defendant makes the following statement: "I intend to appear in court to enter a plea at the time and place set for trial and I wish it to be in the English language";

3. The "Request for First Attendance" in respect of the subject proceeding, signed by the defendant on May 17th, 2010 and filed in the Provincial Offences Court in Burlington, Ontario on May 17th, 2010;

4. The "First Attendance Notice" in respect of the subject proceeding, advising the defendant that her first attendance appointment with the prosecutor had been scheduled for July 12th, 2010 at 8:30 a.m., in the Burlington Provincial Offences Court, located at 2051 Plains Road East, Burlington, Ontario;

5. The defendant's "Request for Postponement of First Attendance Appointment" dated June 11th, 2010. The defendant filed this document in the office of the Burlington Provincial Offences Court on June 11, 2010 at which time the defendant's first attendance appointment with the prosecutor of July 12th, 2010 was cancelled and re-scheduled for August 16th, 2010 at 9:30 a.m., in the Burlington Provincial Offences Court;

6. The "Notice of Trial" in this proceeding, dated September 2nd, 2010. This Notice (which was sent to the defendant by ordinary mail to the address indicated on the defendant's Notice of Intention to Appear", on September 13th, 2010) informed the defendant that the trial of the subject charge would be held in the Ontario Court of Justice, Provincial Offences Court, 2051 Plains Road East, Burlington, Ontario, court room #2 therein, on the 25th of March, 2011, at 1:30 p.m.

[17] In addition to the aforesaid documents, I have reviewed and considered the contents of the transcript of the trial proceedings of March 25th, 2011. This document has not been filed as an exhibit to this Application.

CHRONOLOGY OF EVENTS

[18] On May 17th, 2010, Provincial Offences Officer R. Conant personally served an Offence Notice on the defendant charging her with an offence of careless driving contrary to section 130 of the H.T.A, which allegedly took place on the said date. This Offence Notice corresponded with Certificate of Offence no. 1260-3761505A, issued by Officer Conant. The Officer filed the said Certificate of Offence in the P.O.A. office of the Ontario Court of Justice, 2051 Plains Road East, Burlington, Ontario, on May 20th, 2010.

[19] On May 17th, 2010, the defendant filed a Notice of Intention to Appear relative to the subject charge, in the P.O.A. office located at 2051 Plains Road East, Burlington, Ontario. In this document, the defendant advised, in part, as follows:

TAKE NOTICE THAT I, Tsui-Ping Wong, 5129 Palomar Crescent, Mississauga, Ontario, L5R-2X1 – (offence number) 3761505A – (offence date) May 17, 2010 wish to give notice of my intention to appear in court to enter a plea of not guilty at the time and place set for the trial respecting the charge set out in the Offence Notice or Parking Infraction Notice.

I intend to appear in court to enter a plea at the time and place set for the trial and I wish it be held in the English language.

[20] When the defendant prepared and signed the said Notice of Intention to Appear on May 17th, 2010, she also prepared and signed a document appearing on the reverse side of the Notice of Intention to Appear form, titled "Request for First Attendance". She filed this document, relative to the subject charge, in the P.O.A. office located at 2051 Plains Road East, Burlington, Ontario on the said date. In signing this "Request for First Attendance" form, the defendant acknowledged the following statements contained on the form:

I understand that if I cannot attend on the assigned date that I, or an agent acting on my behalf, must attend in person to request a postponement in writing. Only one postponement will be considered.

I also understand that if an appointment is not scheduled for me when I, or an agent acting on my behalf, attend the Court to request a First Attendance Meeting, a notice with the date, time and location of my First Attendance Meeting will be mailed to me within two weeks to the address provided above. If I do not receive a notice within 30 days of today's date, I understand that it is my responsibility to contact the Court to obtain that information.

[21] According to information contained in the Court file for this proceeding, the Burlington Provincial Offences Court prepared a "First Attendance Notice" relative to the subject charge and forwarded it to the defendant at the address which she provided in her "Request for First Attendance". The said "First Attendance Notice" read, in part, as follows:

To: Tsuiping T. Wong, 5129 Palomar Cres. Mississauga, Ont. L5R 2X1

This notice will confirm that a first attendance appointment has been scheduled in the English language on the 12th day of July, 2010 at 8:30 a.m. at #FA [First Attendance], 2051 Plains Road East, Burlington, On, regarding the offence of CARELESS DRIVING – HIGHWAY TRAFFIC ACT section 130.

You or a representative authorized by you to act on your behalf must appear at the above time.

At the time fixed for your appointment, a prosecutor will be available to discuss the charge(s) with you or your representative.

If you or your representative do not attend in person at the time fixed for this appointment, a Notice of Trial will be issued. If you do not attend the trial, a justice may enter a conviction against you in your absence.

[22] On June 11th, 2010, the defendant attended the Burlington Provincial Offences Court. At that time, she prepared and filed a document titled "Request for Postponement of First Attendance Appointment", relative to the subject charge. In that document the defendant requested a postponement of the first attendance appointment scheduled for July 12th, 2010 at 8:30 a.m. In making the request the defendant noted that she "will be out of town" at the time of the scheduled first attendance appointment. The form indicated that Burlington Provincial Offences Court staff member J. Murphy-Hussin acknowledged the defendant's postponement request and re-scheduled the first attendance appointment in this proceeding for August 16th, 2010 at 9:30 a.m. The "Request" form indicated that the defendant was provided with notice of the new first attendance appointment date at that time.

[23] The parties agree that neither the defendant nor a representative on her behalf, attended the Burlington Provincial Offences Court, 2051 Plains Road East, Burlington, Ontario, on August 16th, 2010 at 9:30 a.m. for the scheduled first attendance appointment. Accordingly, the administrative office of the said court took steps to issue a "Notice of Trial" in the subject proceeding to the defendant.

[24] On September 2nd, 2010, the Clerk of the Burlington Provincial Offences Court issued a Notice of Trial to the defendant. In this Notice the Clerk fixed the trial of the subject charge for March 25th, 2011, at 1:30 p.m., in court room #2 at the Ontario Court of Justice located at 2051 Plains Road East, Burlington, Ontario. The Notice stated, in part, as follows:

Your trial will be held on the date and time noted above at the Ontario Court of Justice shown. You and your witnesses should be ready for your trial at that time. If you do not appear, you will be deemed not to dispute the charge and the court may convict you in your absence without further notice.

[25] The said Notice of Trial was sent to the defendant by ordinary mail at her address in Mississauga, Ontario, as stated on the Notice of Intention to Appear in this matter, on September 13th, 2010.

[26] On the 25th day of March, 2011, the defendant appeared in the Burlington Provincial Offences Court at 2051 Plains Road East, Burlington, Ontario with her representative, for the trial of the subject charge. The trial was set to commence during the 1:30 p.m. tier of Part I P.O.A. cases, during which time a number of other unrelated matters had been scheduled for trial. Accordingly, the trial of the subject matter did not commence until sometime after 2:00 p.m. on the said date, when the defendant was arraigned and entered a plea of not guilty to the charge.

[27] During the course of the trial proceedings of March 25th, 2011, I received viva voce testimony, tendered on behalf of the prosecution, from Ms. Laureen Patrick and from Police Officer Robert Conant of the Ontario Provincial Police.

[28] Ms. Patrick was examined-in-chief by prosecutor Mr. I. Lagden and cross-examined by the defendant's representative. During her testimony, Ms. Patrick advised that on May 17th, 2010, "just before" eight a.m., she was involved in a motor vehicle collision which took place in the left eastbound lane of the Queen Elizabeth Highway near its intersection with "Burloak", in the Town of Oakville. She testified that at that time, the car which she was driving was struck from behind by a red-coloured Lexus vehicle being driven by the defendant before the Court.

[29] Following the completion of Ms. Patrick's testimony, the prosecution called Police Officer Conant to the witness stand. During examination-in-chief, Officer Conant testified that at 7:55 a.m. on May 17th, 2010, he received a radio call of a two-vehicle collision which had taken place in the left lane of the Queen Elizabeth Highway at Burloak. He stated that he attended the scene of the collision at 8:23 a.m. on the said date and began his investigation of the reported collision.

[30] The officer testified that when he arrived, he was advised that the vehicles involved in the collision had been moved off of the highway and into the "Bronte commuter parking lot" by another police officer. He advised that at the time of his arrival at this parking lot he located the drivers of the vehicles allegedly involved in the collision and entered into a discourse with these individuals relative to his investigation.

[31] Officer Conant testified that one of the individuals who he spoke with, identified herself by means of a valid Ontario driver's licence, as Tsuiping Tali Wong. At that point in time during the officer's testimony-in-chief, the defendant's representative advised the Court that identification was not an issue in this case.

[32] The officer went on to testify that after speaking with the other party allegedly involved in the reported collision, he asked the defendant, Ms. Wong, to sit in the back seat of his police cruiser so that he could obtain a statement from her pertaining to the circumstances of the purported motor vehicle collision. The officer advised that the defendant complied with his request and he then took steps to obtain a statement from her.

[33] At that time, the prosecutor requested that the Court embark on a voir dire to determine whether the prosecution could establish, beyond a reasonable doubt, that the defendant's alleged statement was made voluntarily.

[34] Police Officer Conant was then sworn to give evidence on the voir dire. He testified in chief, in cross-examination and by way of re-examination as to the circumstances surrounding the statement or statements made by the defendant to him at the relevant time. Upon the completion of Officer Conant's testimony during the voir dire, the prosecution advised that it had no further evidence to call on the voir dire. The defendant's representative then informed the Court that he wished to call the defendant to testify on the voir dire.

[35] At 3:26 p.m., prior to receiving the testimony of the defendant on the voir dire, I recessed Court for a period of fifteen minutes.

[36] Upon reconvening the Court following the afternoon recess, I received the defendant's testimony on the voir dire. The defendant testified by way of examination-in-chief, cross-examination and re-examination, pertaining to the circumstances surrounding the statement that she made to Police Officer Conant at the relevant time. Following the completion of the defendant's testimony on the voir dire, the defendant's representative advised the Court that he did not have any further evidence to call on behalf of the defendant on the voir dire. The evidentiary phase of the voir dire concluded when the prosecutor indicated that he did not have any reply evidence to proffer on the proceeding. The parties completed this portion of the voir dire shortly after 4:00 p.m.

[37] During the course of his examination-in-chief of the defendant, the defendant's representative asked the defendant if, prior to taking the statement from her, Police Officer Conant told her that she could speak to a lawyer. The defendant responded that the officer never made that offer to her.

[38] The defendant's evidence in this regard prompted the following further question and answer exchange between the representative and the defendant:

Q: So you're saying that if, if the police officer had told you that you have the right to speak to a lawyer – he never told you that you had the right to speak to a lawyer, did he?

A: No.

Q: Yeah, but he – if he had told you that you had the right to speak to a lawyer, what would you have done?

A: I would have called my lawyer.

[39] Prior to receiving the final submissions of the parties relative to the admissibility of the defendant's alleged statement at the relevant time, I made inquiries of the defendant's representative as to whether, in light of his client's testimony-in-chief, he was intending to apply to the Court to exclude any statements made by the defendant to Police Officer Conant, based upon an alleged violation of the defendant's rights under subsection 10(b) of the Charter (the right of a person "on arrest or detention to retain and instruct counsel without delay and to be informed of that right"). In answering this question, the defendant's representative sought an adjournment of the voir dire proceeding and the trial, so he could prepare and serve "a formal application" pertaining to the purported Charter infringement.

[40] It is acknowledged that in seeking an adjournment of the trial including the voir dire at this time, the defendant's representative remarked on several occasions that since it was late in the day, it was unlikely that the trial would be completed that day and that it would therefore be appropriate to adjourn the proceeding and re-schedule the trial. Furthermore, it is noted that the prosecutor did not disagree with the proposition that the Court would not likely be able to finish the trial on that day, given that court proceedings were scheduled to close for the day at 4:30 p.m.

[41] During the course of my discourse with the parties pertaining to adjourning the trial to another day, I asked the defendant's representative if he was seeking an adjournment to allow him to prepare a Notice of Constitutional Question pertaining to the purported infringements of his client's Charter rights. In response to this question, the representative stated as follows:

That's absolutely what I'm asking, Your Worship. During the, the voir dire, the officer did touch on a couple of areas which were not – that are not contained in the disclosure material, and for those reasons I would ask that the court consider the, the motion for the adjournment so that I can properly prepare that application for the Charter violation order – allegation.

[42] In commenting on his concern that certain aspects of Officer Conant's testimony during the voir dire were not contained in the material disclosed to the defence, the defendant's representative made the following comments:

…I did make some comments with respect to evidence that came out from the officer that were not disclosed in the material that was given to the defence, and I can be extremely explicit and I can tell the court where my concerns lay. The officer, in his evidence during the voir dire, he says to the court that – when Mr. Lagden asked did you form an opinion as to whether or not you were going to lay a charge at this stage, or something that effect, the officer said, yes, I did. Careless driving, section 130 of the Highway Traffic Act is an offence that is an arrestable offence. If we look at section 217 sub (2) of the Highway Traffic Act, arrests without warrants. "Any police officer who on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9(1), subsection 12(1), subsection 13(1), subsection 33(3), subsection 47(5),(6),(7), or (8), section 51, 53, subsection 106 (8.2), section 130…" – which is the section we're dealing with – those are all arrestable offences and if the officer is going to be considering an arr - arrestable offence, then he should be advising the defendant or the accused of their complete rights to counsel. And that came out during my friend's questioning of the officer, and that information was not disclosed in the material that's before me. So for those reasons, I'd like to address that in, in a, in a proper application before the Court with respect to a, a Charter violation.

[43] When I asked the representative whether, based upon his comments, he was considering commencing an application alleging a violation of the defendant's rights under section 7 of the Charter, related to an issue of incomplete disclosure, the representative replied as follows:

Oh, I wouldn't go as far as saying that there was a lack of disclosure, Your, Your Worship. I'm satisfied to a degree of the material that was provided to the defence, but what certainly is a concern is what came out from the evidence in, in the voir dire amounts to what would be information that is not disclosed that, that could – that may have been addressed prior to trial, and I'm just simply asking the court to consider that, that application for the adjournment so that we can get a proper application before the court for, for the Charter application.

[44] I then asked the representative whether at this stage, he was applying for an adjournment of the trial in order for the Court to determine, as part of the voir dire, his application for Charter relief "relative to alleged violations of the defendant's Charter rights". The representative replied to this query by stating, "that's correct, Your Worship".

[45] In response to my query of the defendant's representative for submissions as to whether the defendant would be required to serve and file a Notice of Constitutional Question in respect of a potential subsection 10(b) Charter violation, the defendant's representative commented as follows:

Well, one of the reasons why I suggested the, the adjournment, Your, Your Worship, is because as I have said I have a sense that we were not going to complete this matter today anyhow, and putting it over would give the defence that opportunity to prepare that, that application, and I am aware that there have been cases in the past where, where matters just simply pop up at the time of trial, the application can be made on the spot, but I have a, I have a preference in this case, given that, as I said already, that we're not going to finish today, why not just put it over, prepare a proper application before the court and serve the, the, the prosecutor's office, give them an opportunity to respond to it and then carry on from there.

[46] At this point in time, I sought submissions from the prosecutor relative to the defendant's application for adjournment of the trial at that time, being 4:23 p.m. In that regard, the prosecutor stated as follows:

Any comments I make on the issues, quite honestly, would be submissions on the issue of the voir dire. So if Mr. McLean wishes the opportunity to put a motion before the court, the correct procedure would be to grant it. The practical application is it is 4:23 p.m. We have to find a reason to close the court for the day and I would suggest this is an ideal opportunity to do that.

[47] Following receipt of the prosecutor's submissions relative to the defendant's adjournment request, I made the following ruling:

Thank you. I agree with that, that practical point put forward by both counsel that it's late in the day to continue, so we're going to be adjourning the trial of this matter due to lack of time, but that will also give an opportunity to for the defence if she wishes – that is, the defendant, if she wishes to prepare and file a Notice of Constitutional Question in accordance with section 109 of the Courts of Justice Act that I'm sure both counsel are aware of. So this trial is adjourned. The voir dire is adjourned. We haven't heard – well, we're in the middle of the voir dire. We haven't heard submissions and there may be further aspects of the voir dire that has to be dealt with depending on the issue of the notice that may be prepared and served in this matter. So this trial is adjourned and we'll find a new date for trial and I – it might be fair to say, say that perhaps this could continue for another half a day. …

[48] The parties agreed that an appropriate estimate for the completion of the trial in this matter would be one-half of a day.

[49] I then asked the courtroom clerk to assist me in finding a date that the court administration could provide relative to court room availability for a one-half day block of time. In that regard, the clerk advised that the earliest date that the court administration could provide for the continuation of the trial in this proceeding was June 20th, 2011. The clerk advised that following June 20th, 2011, the next day that could be offered for a full trial tier (being one-half day) was July 18th, 2011.

[50] At that point in time, I advised that I was not available on either of the said dates. At a later point in time, during the discussions pertaining to the re-scheduled trial date, the defendant's representative advised that he was not available on either June 20th, 2011 or July 18th, 2011.

[51] The courtroom clerk advised that after July 18th, 2011, the next day she could offer for a one-half day-block of trial time was August 22nd, 2011. The prosecutor advised that prosecution witness, Police Officer Conant was not available on that date however the said date was available to the Court as well as to both the prosecutor and the defendant's representative.

[52] The clerk then suggested August 23rd, 2011, as an available date for the reservation of a one-half day block of trial time. This date was available to me as the seized justice of the peace, the prosecutor, Police Officer Conant and the defendant's representative. It was then accepted by the Court as the appropriate date for the continuation of the trial, reserved for one-half day.

[53] In formally adjourning the proceeding of March 25th, 2011 to August 23rd, 2011 for trial continuation, I made the following comments:

Well, that's I guess a day that we could adjourn this matter to without getting into further out. I mean, it's the earliest day I guess that's available for half a day of trial time, it would appear, that's – from the point of view that's available to all parties. Obviously I'm not available in June or the, the two dates – the one date in June, the one date in July, and I understand, in fairness, Mr. McLean is not available on those two days. The officer's not available on August 22nd, the day before this one, but all parties are available on August 23rd. So I think that's the earliest day we can reasonably find in this matter. Therefore this matter – Ms. Tsui-Ping Wong, if you could stand please? … Your, your, your matter is adjourned, due to lack of time, primarily, to August 23rd, 2011 at 1:30 p.m. … in number 1 court, in this building, [Burlington Provincial Offences Court] which is right next door, for trial continuation and for the continuation of the voir dire within the trial in this matter.

[54] On August 14th, 2011, I experienced an acute medical condition, which caused me to be hospitalized for a short period of time. In light of my medical issues at that time I ceased judicial duties and remained on sick leave until September 6th, 2011. I returned to my duties as a full time, presiding justice of the peace at that time.

[55] In light of my illness and my lay-off from judicial duties between August 14th, 2011 and September 6th, 2011, I was unable to preside over the continuation of the trial of the subject charge on August 23rd, 2011 at 1:30 p.m. On that date, Justice of the Peace P. Valeriano presided in Burlington Provincial Offences Court room #1 to adjourn the trial of the subject charge to a new date. At that time, the prosecution was represented by Ms. A. Senkus and the defendant was represented by an agent appointed by defendant's representative, Mr. F. Alfano.

[56] The transcript of the subject proceedings of August 23rd, 2011, which has been entered as Exhibit #5 to this proceeding, reads as follows:

Ms. Senkus: We just have the one matter this afternoon, the case of Ping Wong.

Mr. Alfano: Yes. Good afternoon, Your Worship. It's Frank Alfano for the record. I'm paralegal. I'm appearing [for] Kerlan McLean. Mr. McLean represents the defendant. I've been asked to speak to this matter for the purposes of an adjournment. It's my understanding that the trial couldn't continue this afternoon and that His Worship Dechert couldn't attend today and the matter should be adjourned.

The Court: Thank you.

Ms. Senkus: We've had some opportunity to canvass a date as I understand that this is a trial continuation of a lengthy matter.

The Court: Thank you.

Ms. Senkus: The date that we are suggesting to the Court is January 3rd, 2012, at 1:30 in this courtroom.

Mr. Alfano: That date is agreeable. I'm advised that this is the first available date for the purposes of the record, and I'll advise Mr. McLean of the continuing trial date.

The Court: Thank you, January 3rd, 2012, 1:30 this courtroom, trial continuation.

Ms. Senkus: Thank you.

The Court: Thank you.

Mr. Alfano: Thank you, Your Worship.

[57] On January 3rd, 2012, both the Court and the prosecutor were ready to proceed with the continuation of the subject trial, including the incomplete voir dire proceeding, as scheduled. While it is acknowledged that the defendant was also ready to proceed with the trial continuation at that time, her representative requested leave of the court to allow him to file his "Notice of Application and Constitutional Issue", alleging a violation of the defendant's rights under subsection 11(b) of the Charter and seeking a remedy of a stay of the subject charge under subsection 24(1) of the Charter. In that regard, the defendant's representative advised that he, through inadvertence, had failed to serve the Attorney General of Ontario, the Attorney General of Canada and the Office of the Prosecutor from the City of Burlington, with the said Notice of Charter Application, by facsimile transmission, until the evening of January 2nd, 2012.

[58] In light of the evidence of short service of the Notice, I granted the defendant's application to adjourn the hearing of the Application and the continuation of the trial of the charge, until January 9th, 2012, at 9:00 a.m. in the Burlington Provincial Offences Court. In adjourning the application, I directed that the defendant's representative prepare a "Notice of Constitutional Question" in the form prescribed by section 109 of the C.J.A., returnable on January 9th, 2012 at 9:00 a.m. and that it be served upon the requisite parties no later than January 5th, 2012.

[59] On the 9th day of January, 2012, the defendant's representative filed the defendant's Notice of Constitutional Question pertaining to her claim that her rights under subsection 11(b) of the Charter had been violated and seeking a stay of the subject charge under subsection 24(1) of the Charter. The defendant's representative began his legal argument under the Charter application on January 9th, 2012. As he did not finish his submissions at that time, the Charter application was adjourned until January 27th, 2012 at 1:30 p.m., in the Milton Provincial Offences Court.

[60] As stated earlier, prior to the completion of the proceedings on January 9th, 2012, the defendant's representative waived the defendant's rights under subsection 11(b) of the Charter, from and including January 3rd, 2012 until the time of my judgment pertaining to the subject Charter Application.

[61] The defendant's representative continued his submissions under the Application on January 27th, 2012. As he did not complete his submissions on January 27th, 2012, the proceeding was adjourned for further submissions to May 4th, 2012, at 1:30 p.m. in the Milton Provincial Offences Court.

[62] The defendant's representative completed his submissions relative to the Application on May 4th, 2012. The prosecutor then made his final legal submissions on the Charter application, following which the trial of the subject charge was adjourned to September 17th, 2012, at 1:30 p.m. in the Burlington Provincial Offences Court, for my judgment on the Charter Application and for possible trial continuation.

THE LAW

Canadian Charter of Rights and Freedoms ("Charter")

[63] The following portions of the Charter are relevant to the defendant's application herein:

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

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

Relevant Common Law

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

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

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

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

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

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

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

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

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

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

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

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

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
   • a) inherent time requirements of the case,
   • b) actions of the accused,
   • c) actions of the Crown,
   • d) limits on institutional resources, and
   • e) other reasons for the delay; and
4. prejudice to the accused.

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

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

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

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

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

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

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

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

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

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

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

[76] Mr. Justice Sopinka explained that waiver could be explicit or implicit. In defining the concept of implicit waiver, he adopted the following comments made by Cory J. in Askov, supra:

…there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee.

[77] In his concluding remarks pertaining to implicit waiver, Sopinka J. stated as follows:

…If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable.

[78] In her unreported decision in Regina v. Syed Khan, (Halton Provincial Offences Court file no. 95128045) dated January 7th, 2011, Madam Justice R. Zisman, sitting as a P.O.A. Appeal Court, ruled that a defendant charged with a Part I P.O.A. offence and who requests a first attendance appointment with the prosecutor at the same time as he/she files his Notice of Intention to Appear, implicitly waives the period between the date when the first attendance appointment was requested and the date of the actual appointment with the prosecutor.

[79] In upholding the decision of the trial justice of the peace, denying the appellant's Charter application seeking a stay of the subject H.T.A. charge under subsection 24(1) of the Charter, Zisman J. stated, in part, as follows:

…in my view, first of all Morin is very clear that the eight to twelve months is simply a guideline and not a fixed time period and everything has to be considered and balanced. And, the overall delay is concerning and that raises the issues raised in Askov and Morin. In other words, the length of delay is-even if you take off the three months, is something that one has to look at in terms of is that a reasonable delay and, in my view, it is not. It is a lengthy delay and it raised the Morin issue.

So then we have to look at whether there is a waiver to any of the time periods and, in my view, there is an implicit waiver by Mr. Khan in this case by agreeing to the first attendance. So I would deduct those three months. If I look at the reasons for the delay as required by Morin, I agree that on a speeding ticket that there are no inherent delays in terms of getting a case ready, but the actions of the defendant become relevant in terms of asking for an administrative delay. …I think the Justice of the Peace was correct. That in all of the circumstances it is not an unreasonable delay in view of the fact that part of the confusion is caused by the defendant and there is no prejudice to him, in my view.

[80] It is noted that in reaching her decision that a person who requests a first attendance appointment with a prosecutor in respect of a Part I P.O.A. charge, accepts a delay in the setting of a trial date, Madam Justice Zisman characterized the procedure as "an administrative process", noting that "nobody has to agree to it". In this regard, the jurist stated that "if you want your trial, you can just stand on your grounds to have a speedy trial", once again remarking that "you don't need to agree to this administrative process".

[81] Furthermore, during her discourse with the defendant's representative in this appeal, Zisman J. maintained that when a defendant requests a first attendance appointment at the time that he/she files the Notice of Intention to Appear, defendant is, by taking that step, "essentially agreeing to a delay, because he's bypassed the trial. He's going onto his first attendance".

[82] In analyzing the appellant's actions in the subject appeal in requesting the first attendance appointment procedure, Madam Justice Zisman made the following comments:

But he doesn't have to agree to it. That's the point that's being raised. He, he doesn't have to agree to a first attendance court. He can just ask – if he fills in the front of this form, right, that says I want a trial date and doesn't check off first attendance he's going to get a trial notice. That's the way I understand the process

So, what he's done is taken an added step. He said, no, no, no. I want to meet with the Crown. I want to see if I can resolve – or the prosecution. That's what he's done. So, he has delayed the process by asking for this administrative hearing. …

[83] During the course of receiving the parties arguments during this appeal, Madam Justice Zisman responded to the concern raised by the appellant's representative that the defendant has no control over the timing of the first attendance meeting after he/she has requested the meeting, by noting that a defendant doesn't have to accept a lengthy delay in that regard. The jurist went on to note that in that circumstance the defendant could simply cancel the first attendance, because of the unacceptable delay, thereby causing the court administration to set a trial date.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[94] In Regina v. Lahiry, supra, Code J. analyzed the factor of the reasons for the delay as follows:

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

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

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

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

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

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

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

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

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

In this case we are dealing with the Provincial Court. The suggested period of institutional delay ranges from 6 to 10 months. The respondent suggests that 8 to 10 months of purely systemic delay would not be unreasonable in the Provincial Court. It admits, however, that it is aiming at institutional delay of no more than 6 to 8 months in Provincial Court. Arbour J.A. in Bennett, supra. [Regina v. Bennett, [1991] O.J. No. 884 (Ont. C.A.)] suggests 'a delay of 8 1/2 to 9 months in getting a case to trial in the Provincial Court, although not a model of brevity, is not outside the range of reasonableness'.

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

[98] Trial delay due to the illness of a judge seized of a case falls under the general category of "the reasons for the delay". Depending on the particular circumstances of the illness, the circumstances of the subject case and the length of the judge's lay-off from his/her judicial duties, the period of trial delay in question could be characterized as a neutral period associated with the inherent time requirements of the case. Alternatively, such a period of delay could be classified as delay attributable to either the actions of the Crown or institutional/systemic factors.

[99] In her decision in Regina v. MacDougall, [1998] 3 S.C.R. 45 (S.C.C.), written on behalf of a unanimous panel of the Supreme Court of Canada, McLachlin, J. (as she then was) summarized the position of the Court relative to the issue of the characterization of trial delay occasioned by the illness of a trial judge, in para. 61 thereof, as follows:

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

[100] In commenting on how delay caused by the illness of a seized trial judge might be considered to be associated with the inherent time requirements of a particular case, in paras. 44, 45 and 46 of MacDougall, supra, Madam Justice McLachlin stated as follows:

The period of time attributable to inherent time requirements is the period of time that would normally be required to process a case, assuming the availability of adequate institutional resources. The period of time attributable to inherent time requirements is neutral and does not count against the Crown or the accused in the s. 11(b) reasonableness assessment.

The inherent time required to process a particular case must not be confused with the average time required to process a case of that type. All cases have 'inherent time requirements needed to get a case into the system and to complete that case': R. v. Allen (1996), 1 C.R. (5th) 347 (Ont. C.A.), at pp. 363-64, per Doherty J.A., aff'd, [1997] 3 S.C.R. 700; Morin, at p. 792. In other words, the inherent time requirements of a case are not limited to commonplace delays which occur in every situation, but may include delay due to extraordinary and unforeseeable events: Allen, supra.

A trial judge falling ill may be such an event. Judges being human, it is inevitable that they will occasionally fall ill. When this occurs and where it is not reasonable for the Crown to immediately apply to have the Judge replaced…, the delay due to the judge's illness may be regarded as part of the inherent time required to complete the case. At the point, however, where it is reasonable for the Crown to apply to have the judge replaced, the inherent delay due to the judge's illness changes to Crown delay.

[101] Furthermore, in paras. 50, 51 and 52 of her decision in MacDougall, McLachlin J. commented on the scenario where a court may attribute trial delay precipitated by the illness of a trial judge as delay associated with the actions of the Crown, as follows:

The Crown's duty to ensure that trial proceedings are not delayed may require the Crown to apply to have a judge removed and replaced when a judge falls ill in the course of a trial. There is no set time period after the onset of illness when the Crown must apply to have the judge removed and replaced. Whether and when the Crown should act depends on what is reasonable in the circumstances of the case.

It can safely be said that the Crown should bring an application to replace the judge when it is clear that the judge will not recover or return to judicial duties. However, where the expectation is that a judge seized of the case will recover and return, the matter is more difficult. In such a case, the Crown must balance two factors. On the one hand, the Crown must consider the fact that a judge who has heard evidence in a case is seized of the case. This means that the task of deciding all the issues on the case, including sentencing, falls to that judge and no other. The removal of a judge from an unconcluded case has the potential to interfere with the independence of the judiciary and the right of an accused to a fair trial. Absent compelling reasons, it would be improper for Crown counsel to apply to remove a judge seized of the case. To do so might create a perception that the Crown was interfering with the right of the judge to independently judge all the issues in the case. It might also create a perception of unfairness to the accused. For example, a trial judge may make comments in the course of a trial that lead the Crown to speculate that he or she is sympathetic to the accused. If the Crown were to apply to have the judge removed prior to sentence absent a compelling reason, the perception might be that the Crown did so to obtain a judge less sympathetic to the accused. Where a judge falls ill and the expectation is that he or she will return to judicial duties, the Crown must bear these considerations in mind in deciding whether it is reasonable to bring an application to have the judge removed. On the other side of the balance, the Crown must consider the accused's right to a prompt trial under s. 11(b) and the prejudice the accused may suffer as a result of the delay.

In summary, where the trial judge falls ill and is expected to return, the Crown must balance two competing factors: (1) the need to proceed with the utmost care and caution when considering the removal of a judge seized with a case in order to protect judicial independence and fairness to the accused, and (2) the need to protect the accused's s. 11(b) rights and prevent undue prejudice to the accused. The practical question is whether the apprehension of a violation of the accused's s. 11(b) rights has reached the stage where it outweighs the general rule that the judge seized of a case should conclude it. Where the apprehension of a s. 11(b) violation outweighs this general rule, the Crown has a duty to apply to remove and replace the seized judge. If the Crown fails to do so, any resulting delay will be counted against the Crown in the s. 11(b) assessment.

[102] Finally, in paras. 55 and 56 of her said judgment, Madam Justice McLachlin advised as to the circumstances whereby delay associated with the illness of a seized trial judge might be classified as delay due to a shortage of institutional resources, for which the Crown would be responsible, as follows:

Delay due to the illness of a judge may constitute systemic delay where the Crown delays bringing what would be a reasonable motion to replace the judge who has fallen ill because the Crown knows there is no other replacement judge available. The same applies to a case where the Crown applies to remove the judge and an order for replacement is made but an unreasonable delay in replacing the judge results because there is no other judge available. The same reasoning would apply to unreasonable delays in replacing the judge due to a shortage of courtrooms or other necessary institutional resources.

This raises the difficult question of what contingency arrangements the judicial system should have in place for the eventuality that a judge will fall ill and be unable to complete a case he or she has begun. The answer to this question must depend, as it does generally when considering institutional delay, on the pressures on the criminal justice system in a particular area. …

[103] In addressing the final element described as "other reasons for delay" in Morin, supra., Sopinka J. identified a circumstance where the actions of a trial judge could be the cause of delay. In considering this scenario, the jurist was reminded of the circumstances in the case of Regina v. Rahey, [1987] 1 S.C.R. 558 (S.C.C.), wherein the trial judge initiated adjournments of the trial proceeding on nineteen separate occasions over a period of eleven months, after the accused had moved for a directed verdict. The jurist noted that while this form of delay was "not institutional in the strict sense" it could not "be relied upon by the Crown to justify the period under consideration".

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[112] In their judgment in Regina v. Kovacs-Tatar, [2004] O.J. No. 4756 (Ont. C.A.), Weiler, Rosenberg JJ.A. and Pardu J. (ad hoc) found that the factor of "prejudice to the accused" as enunciated in Regina v. Morin, supra, referred to prejudice to the accused related to the delay in bringing the accused to trial and the completion of the trial, rather than prejudice to the accused flowing from the fact of being charged with an offence. In that regard, in paras. 32 and 33 of the judgment, the jurists' wrote as follows:

There is a difference between prejudice arising from merely being charged with a criminal offence and prejudice arising from delay. In dealing with the appellant's submission it is helpful to briefly review the distinction. In R. v. Rahey, [1987] 1 S.C.R. 588, Wilson J. stated at p. 624 that:

[T]he impairment or prejudice we are concerned with under s. 11(b) is the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the prejudice arising from the fact that he has been charged. The prejudice arising from the fact of being charged with a criminal offence is suffered even where the accused is tried within a reasonable time. It is, so to speak, inherent in the system itself. I agree with Lamer J., however, that that prejudice must be kept to a minimum by a speedy disposition of the charges against the accused. If this is not done, then the degree of prejudice will exceed that which is the inevitable concomitant of the system and be directly attributable to the delay under s. 11(b).

The focus of prejudice under s. 11(b) is the prejudice flowing from a situation 'prolonged' by delay rather than the mere fact of being charged with a criminal offence: Bennett, supra, at p. 478 [Regina v. Bennett, (1991), 64 C.C.C. (3d) 449 (Ont. C.A.)]. In R. v. Silveira, [1998] O.J. No. 1622 (Gen. Div.), Hill J. clarified at p. 9 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.

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

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

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

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

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

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

Weighing Competing Interests

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

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

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

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

Conclusion

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

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

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

ANALYSIS

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

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

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

The Legal Framework

(i) The Length of the Delay

[122] In this proceeding, the defendant was served with an offence notice for the subject offence on May 17th, 2010. She filed her "Notice of Intention to Appear" and "Request for First Attendance" with the Burlington Provincial Offences Court on the same date. Accordingly in determining the length of the delay in this matter, I have commenced the calculation period on May 17th, 2010, even though Police Officer Conant did not file the certificate of offence with the said P.O.A. court until May 20th, 2010.

[123] I have determined the overall length of the delay in this proceeding to be 28 months. It is comprised of the period between May 17th, 2010 (the date of the subject offence) and today's date, September 17th, 2012, being the anticipated completion date for the trial of the subject offence.

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

(ii) Waiver of Time Periods

[125] As stated above, on January 9th, 2012, the defendant's representative explicitly waived the defendant's rights under subsection 11(b) of the Charter, in respect of the subject charge, for the period from and including January 3rd, 2012 to September 17th, 2012. The waived period of time amounts to 8 months and 14 days. I have subtracted this period of time from the overall period of delay, in the course of analyzing the period of trial delay which might be considered to be unreasonable.

[126] The other period of trial delay which might properly fall into the category of a waived time period is the time between May 17th, 2010 and August 16th, 2010, which may be described as the "first attendance appointment period". The prosecutor suggests that the first attendance appointment period is comprised of a neutral "intake period" of one month, between May 17th, 2010 and June 16th, 2010 and an implicitly waived period of time of one month and 29 days, being the period between June 17th, 2010 and August 16th, 2010.

[127] In her unreported decision in Regina v. Syed Khan, supra, rendered on January 7th, 2011, Madam Justice Zisman found that an approximate three month period between the time that the defendant filed his "Request for First Attendance" form with the court until the date of the first attendance appointment, was a period for which the defendant, Mr. Khan had implicitly waived his section 11(b) Charter rights. In reaching this decision, the jurist noted that the defendant voluntarily sought an opportunity to attempt to resolve the charge against him, through a pre-trial meeting with the prosecutor. She was able to draw a reasonable inference that by accepting the first attendance appointment, the defendant was content to wait until the first attendance meeting itself and explore that opportunity prior to asking the Court to fix a trial date.

[128] While I acknowledge that I am bound by the principles set out in this decision, as they relate to first attendance appointments, I am of the view that Madam Justice Zisman's decision is distinguishable from the facts of the case at bar, when I compare the facts with the comments made by Sopinka J. in Regina v. Morin, supra, relative to the concept of implicit waiver.

[129] In the case at bar, the defendant filed her Notice of Intention to Appear and Request for First Attendance on the date of the alleged offence (May 17th, 2010). There is no evidence before the Court whereby I could reasonably infer that at the time of filing those two documents the defendant was aware of her rights under subsection 11(b) of the Charter, understood those rights and was consciously giving up her said rights by asking for a first attendance appointment relative to the subject charge.

[130] It is acknowledged that on June 11, 2010, the defendant attended in the Burlington Provincial Offences Court and requested a postponement of the initial first attendance appointment scheduled for July 12th, 2010. The actions of the defendant in seeking to re-schedule the first attendance appointment permits me to draw a reasonable inference that the defendant wanted an opportunity of meeting with a prosecutor to attempt to resolve the subject charge and that she was content to wait until the conclusion of the first attendance procedure before requesting the issuance of a Notice of Trial.

[131] On the other hand, the defendant's action in seeking to re-schedule the first attendance appointment, because she was "going to be out of town" on July 12th, 2010, is not consistent with a finding that she knew that she had a right to be tried of the charge within a reasonable time and was willing to unequivocally give up that right up until the time of the first attendance meeting.

[132] In my view the mere fact that the defendant requested a first attendance meeting with the prosecutor and subsequently requested that it be re-scheduled, does not mean that the defendant understood that she was giving up her constitutional right to be tried of the subject offence within a reasonable time, relative to the time between the filing of the request for the meeting and the date of the meeting. The period of time between May 17th, 2010 and August 16th, 2010, cannot therefore be considered to be a period of time over which the defendant has implicitly waived her subsection 11(b) Charter rights.

[133] I find, however, that in light of the reasoning enunciated by Mr. Justice Libman in Regina ex. rel. City of Toronto v. Andrade, supra, relative to the issue of the length of an intake period for a Part I P.O.A. prosecution, and in light of the defendant's prompt action in filing her Notice of Intention to Appear and Request for First Attendance on the date of the alleged offence, an intake period of one month starting on the date of the offence, would be reasonable. Furthermore, while I am of the opinion that the defendant's actions in requesting a first attendance appointment and her subsequent actions in seeking to re-schedule the appointment, fall short of actions indicative of an implicit waiver of her subsection 11(b) rights between May 17th, 2010 and August 16th, 2010, I am of the view that her actions in electing to explore an opportunity to resolve the charge through a first attendance meeting were voluntary actions undertaken by the defendant which contributed to the trial delay in this matter.

[134] While I will re-address these issues in the portion of my judgment dealing with inherent time requirements of the case and actions of the accused in either causing or contributing to the trial delay, I am of the view that the delay during the period between May 17th, 2010 and August 16th, 2010, cannot be classified as either institutional delay or delay caused by the actions of the prosecution.

(iii) The Reasons for the Delay

(A) Inherent Time Requirements

[135] The issues to be resolved relative to this element are:

1. whether or not there are any "intake requirements" associated with the subject careless driving offence;
2. what would be a reasonable length of an "intake period" for the subject offence?
3. whether a portion of the period of delay between the first trial date of March 25th, 2011 and the second trial date of August 23rd, 2011, should be attributed to the inherent time requirements of the case; and
4. whether the inability to complete the trial of the subject charge on August 23rd, 2011, due to the illness of the trial justice of the peace, who was seized of the matter and the trial delay occasioned by the adjournment of the trial on that date, may properly be attributed to the element of the inherent time requirements of the case.

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

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

[138] In considering the issue of the duration of the intake period, I have taken into consideration the fact that the defendant proceeded expeditiously in filing her Notice of Intention to Appear with the P.O.A. court following the time that she was served with the subject offence notice. The defendant filed her Notice of Intention to Appear, on the date of the subject offence, May 17th, 2010. The defendant applied for a trial within the fifteen day window to respond to her offence notice, as required by the P.O.A. The provincial offences officer who issued the certificate of offence filed the certificate in the relevant P.O.A. office on May 20th, 2010.

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

[140] After considering all of the relevant factors in the determination of the appropriate length of the intake period in this proceeding, I am of the view that the period of one month, between the 17th day of May, 2010 and the 16th day of June, 2010, would constitute a reasonable intake period. In reaching this conclusion, I have taken into consideration the prompt actions of the defendant in responding to the offence notice and the fact that the certificate of offence was filed with the P.O.A. court three days after the date of the offence.

[141] I am satisfied that given these factors all of the necessary pre-trial activities to be completed by both the prosecution and the defendant, including issues pertaining to the retention of the defendant's representative, police paperwork, the preparation of disclosure and court administrative activities could be completed within a 30 day period subsequent to the filing of the Notice of Intention to Appear by the defendant. Accordingly, I find the one-month intake period to be an inherent time period required for the subject proceeding. The period will be treated neutrally, such that it will not weigh against either the prosecution or the defendant.

[142] One of the issues identified above is whether any portion of the period of delay precipitated by the fact that the trial of the subject charge was not completed at the time of the first trial date, should be attributed to the inherent time requirements of the subject case.

[143] In considering this issue, I am persuaded that one-half of the four month and twenty-eight day-period of delay between March 25th, 2011 and August 23rd, 2011, should be allocated to the element of the inherent time requirements of the case and therefore be treated neutrally in the subsection 11(b) calculus. The other half of this time period should be considered delay caused by systemic or institutional factors.

[144] In reaching this decision, I have followed the reasoning of Simmons J.A. in the Ontario Court of Appeal case of Regina v. Tran, supra, where she adopts the dicta of the Ontario Court of Appeal in Regina v. Allen, supra, that the inherent time requirements of a case "can include adjournments necessitated by the need to find additional court time when initial estimates prove inaccurate".

[145] The trial of this matter on March 25th, 2011, proceeded with dispatch once it began, sometime after 2:00 p.m. that afternoon. Once the court embarked on a voir dire allegedly made by the defendant to the investigating police officer, it became quite apparent that the amount of court time set aside during the afternoon of March 25th, 2011 for the trial of this matter was inadequate.

[146] The trial of this matter proceeded for approximately two hours during the afternoon of March 25th, 2011, however it was eventually adjourned, primarily due to lack of time. At the time of the adjournment the prosecution had not yet completed its case and the Court had not yet received legal submissions from the parties relative to the voir dire concerning the admissibility of the alleged statement made by the defendant to Police Officer Conant.

[147] The need for further trial time became apparent, when, at approximately 4:00 p.m., the defendant's representative sought an adjournment of the trial to allow him to prepare and file a Notice of Constitutional Question pertaining to an alleged violation of his client's subsection 10(b) Charter rights. While I acknowledge that the trial would not have been completed that afternoon and that its adjournment was primarily due to a lack of court time to complete the proceeding, the advice of the defendant's representative that he intended to pursue a Charter application to seek to exclude the statement made by the defendant to the police officer, changed the complexion of the trial from one which might only take a short period of time to complete to one which was estimated to require a one-half day block of time.

[148] While I want to make it clear that I am not assigning blame to the defendant for taking steps to exercise any and all strategic and tactical measures available to her in this trial proceeding, without some indication as to the nature of such anticipated Charter applications in advance of trial, it was impossible for the prosecution to take steps to reserve sufficient court time for the trial of the proceeding on the first trial date. Moreover, the advice of the defendant's representative at the time of the adjournment of the proceedings of March 25th, 2011 that he would possibly be arguing the issue of a section 10(b) infringement at the time of the re-scheduled trial, required the Court to attempt to re-schedule the trial on a lengthy trial date, which inevitably limited the ability of the court administration to find an early trial continuation date. It is, therefore, reasonable to treat one-half of the period of trial delay between March 25th, 2011 and August 23rd, 2011 as a neutral period of delay related to the inherent time requirements of this particular case.

[149] In reaching my conclusion in this regard, I have adopted the following comments made by the Ontario Court of Appeal in paragraph 27 of its decision in Regina v. Allen, supra:

…The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[150] The subject prosecution is complex, even though it is one which has been commenced under the simplified procedure codified in Part I of the P.O.A. The evidentiary issues appear to be complicated given the intention of the prosecution to attempt to prove some of the elements of the subject offence through the introduction of a statement or statements allegedly made by the defendant and given the defendant's potential application seeking to exclude any such statements, based on a purported Charter violation.

[151] The inherent nature of this prosecution required the reservation of a much longer block of trial time than two hours. The court administration failed to set aside sufficient time for the completion of the trial on the first trial date.

[152] Once the proceeding began the Court was able to assess the time required to complete the matter. The Court was able to reserve a one-half day block of trial time, but was unable to accommodate that special request until June 20th, 2011. As the seized justice of the peace in this proceeding, I needed to be available for the re-scheduled trial date. The earliest date available to all parties, the court administration and I was August 23rd, 2011. The trial was re-scheduled for that date.

[153] In light of the foregoing, I conclude that the period of time between March 25th, 2011 and June 9th, 2011, a time span of 2 months and 14 days, is attributable to the element of inherent time requirements of the subject case, a neutral element, and therefore does not weigh against the prosecution or the defence in the subsection 11(b) calculus. The balance of the adjournment period, that being between June 10th, 2011 and August 23rd, 2011, a time span of 2 months and 14 days, is properly characterized as institutional delay and weighs against the prosecution for purposes of the subsection 11(b) analysis.

[154] In considering the issue as to how to treat the delay in the continuation of the subject trial on August 23rd, 2011, due to my brief but acute illness at that time, I have concluded that the period of delay caused by my inability to preside over the continuation of the trial on the said date, may be properly characterized as delay associated with the inherent time requirements of the case.

[155] In reaching my conclusion in this regard, I have followed the reasoning enunciated by McLachlin J. in Regina v. MacDougall, supra, where she determined that the unexpected illness of a trial judge who is seized of a case could fall into the category of trial delay due to "extraordinary and unforeseen circumstances". She went on to state that such events are included in the inherent time requirements of a case.

[156] The said jurist reasoned that if it was clear to the Crown having carriage of a case of which a trial judge is seized, that the judge was unable to recover from an illness so as to be able to resume his/her judicial duties, then the Crown would be expected to apply to the Chief Justice of the Court to have the judge replaced. If the Crown failed to take such steps within a reasonable period of time, then any trial delay occasioned by the lack of diligence of the Crown in this regard would weigh against the Crown in a subsection 11(b) Charter analysis. Similarly, as stated by Madam Justice McLachlin in MacDougall, any trial delay occasioned by the tardiness of the Crown in seeking to replace an ill trial judge "which transpires after the point when it is unreasonable for the Crown to apply to have the judge removed due to lack of judicial resources is institutional or systemic delay", will count against the Crown "if the lack of resources is unreasonable having regard to the particular pressures on the court system at issue".

[157] In my circumstances, I suffered an acute but short-term medical condition. I was off work due to my illness during the period between August 14th, 2011 and September 6th, 2011. I returned to my duties as a full time, presiding justice of the peace on September 6th, 2011.

[158] My illness might properly be described as an unexpected and unforeseeable event. It was not, therefore, reasonable to expect that the prosecutor would take steps to apply to have me replaced as the jurist seized of the trial of the proceeding. The trial delay occasioned by the circumstances of my illness on August 23rd, 2011 is properly characterized as delay associated with the inherent time requirements of the case. The period of delay from August 24th, 2011 to January 2nd, 2012, a time span of 4 months and 9 days, is, therefore, classified as a neutral period of delay, which does not weigh against either the prosecution or the defence.

(B) Actions of the Accused

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

[160] In the case at bar, at the time that the defendant filed her "Notice of Intention to Appear" on May 17th, 2010, she also filed a "Request for First Attendance". In taking this voluntary step and choosing the option of meeting with a prosecutor in an attempt to reach a resolution of the charge, it would appear that the defendant understood that in electing the first attendance appointment procedure she was acquiescing to the temporary suspension of the issuance of a Notice of Trial until after the time of the first attendance appointment.

[161] Furthermore, it is noted that on June 11th, 2010, the defendant attended the Burlington Provincial Offences Court to file a "Request for Postponement of First Attendance Appointment". In this regard, she elected to re-schedule her first attendance meeting from July 12th, 2010 to August 16th, 2010. This appeared to be a voluntary act on the part of the defendant. It is therefore logical to infer that by taking the step to postpone the initial first attendance meeting with the prosecutor and re-schedule it, the defendant wanted to exercise the option to meet with the prosecutor and attempt to resolve the subject charge, prior to the issuance of a Notice of Trial, fixing the trial date for the charge.

[162] An objective consideration of the defendant's actions in this regard, leaves me with only one rational conclusion; that the defendant voluntarily exercised her option to meet with the prosecutor prior to setting a trial in the matter, fully understanding that at trial date for the charge would not be set until the completion of the first attendance meeting process.

[163] Accordingly, the defendant's actions of May 17th, 2010 in requesting a first attendance appointment rather than seeking the immediate issuance of a Notice of Trial and applying for a postponement of the first attendance appointment, re-scheduling the appointment for August 16th, 2010, may be properly described as strategic actions taken by the accused, which, in turn, contributed to a delay in the scheduling of a trial date for the subject charge.

[164] I therefore find that the period of delay between May 17th, 2010 and August 16th, 2010 should be apportioned such that the period between May 17th, 2010 and June 16th, 2010 be characterized as a neutral "intake period", and that the period between June 17th, 2010 and August 16th, 2010, be characterized as delay precipitated by the actions of the accused in exercising the administrative option of a first attendance meeting with the prosecutor. This latter period of time, being a period of 1 month and 29 days weighs against the defendant for purposes of the subsection 11(b) analysis herein.

(C) Limits on Institutional Resources

[165] In the foregoing paragraphs I have identified a number of time periods within the time span between May 17th, 2010 and September 17th, 2012; the overall period of trial delay in this proceeding. Any period of time not specifically identified above falls in the category of institutional delay, being that period which "starts to run when the parties are ready for trial but the system cannot accommodate them".

[166] In summary, therefore, I have apportioned the 28-month period of trial delay relative to the subject charge, as follows:

1. May 17th, 2010 to June 16th, 2010 – Intake period of 1 month being part of the inherent time requirements of the case. This period of trial delay is weighed neutrally for purposes of the subsection 11(b) analysis;

2. June 17th, 2010 to August 16th, 2010 – I have allocated this period of delay, that of 1 month and 29 days, to the actions of the defendant/accused in requesting a first attendance appointment in this matter. When the defendant did not attend for her first attendance meeting of August 16th, 2010, a Notice of Trial was issued on September 2nd, 2010, fixing the first trial date in this proceeding for March 25th, 2011. This period of trial delay is weighed against the defendant for purposes of the subsection 11(b) analysis;

3. August 17th, 2010 to March 25th, 2011 – I have allocated this period of trial delay, a period of 7 months and 9 days, to the classification of institutional delay. This period of trial delay is weighed against the prosecution for purposes of the subsection 11(b) analysis;

4. March 26th, 2011 to June 9th, 2011 – I have allocated this period of trial delay, a period of 2 months and 14 days, to the element of the inherent time requirements of the case in accordance with the reasoning expounded by the Ontario Court of Appeal in Regina v. Tran, supra, and Regina v. Allen, supra. This period of trial delay is weighed neutrally for purposes of the subsection 11(b) analysis;

5. June 10th, 2011 to August 23rd, 2011 – I have allocated this period of trial delay, a period of two months and 14 days, to the category of institutional delay. This period of trial delay is weighed against the prosecution for purposes of the subsection 11(b) analysis;

6. August 24th, 2011 to January 2nd, 2012 – I have allocated this period of trial delay, a period of 4 months and 9 days, to the element of the inherent time requirements of the case in accordance with the reasoning expounded by the Supreme Court of Canada in Regina v. MacDougall, supra. This period of trial delay is weighed neutrally for purposes of the subsection 11(b) analysis;

7. January 3rd, 2012 to September 17th, 2012 – The defendant has explicitly waived her right to be tried of the subject charge within a reasonable time during this period of time, a period of 8 months and 14 days. It is, therefore, not included in the subject subsection 11(b) analysis.

[167] Based on the foregoing analysis it is noted that of the 19 months and 15 days of delay between May 17th, 2010 and January 2nd, 2012, the period of 9 months and 23 days is attributable to institutional delay, which weighs against the prosecution. The balance of the trial delay has been allocated to inherent time requirement of the case, including an intake period, as well as a period of time attributable to actions of the defendant. The time periods related to the inherent time requirements of the case are considered to be neutral periods of time and the delay related to the actions of the defendant is weighed against the defendant.

[168] The total amount of trial delay in this proceeding which I have found to be attributable to institutional or systemic factors, being a period of 9 months and 23 days, falls within the guidelines for constitutionally tolerable institutional delay in Provincial Courts (a period of between 8 and 10 months) as established by the majority of the Supreme Court of Canada in Regina v. Morin, supra.

[169] There are obviously no issues relative to pre-trial incarceration or restrictive bail conditions relative to the subject careless driving charge prosecuted by means of the procedure codified in Part I of the P.O.A. There is no basis, therefore, for the said guidelines for constitutionally tolerable periods of trial delay to be shortened to address any concerns relative to an alleged impairment of the defendant's right to liberty. Furthermore, there is no evidence before me that the defendant has suffered substantial prejudice to her right to security of the person or her right to a fair trial associated with the 9-month and 23 day-period of institutional trial delay herein.

[170] I acknowledge the defendant's testimony contained in her affidavit, sworn January 9th, 2012, that as a result of the total amount of trial delay in this proceeding, that of nearly 20 months, she has experienced stress and anxiety related to the "penal and financial consequences" of the careless driving charge itself as well as the impact a conviction for this offence would have on her "insurance rates" and her "ability to drive". Furthermore, I acknowledge the defendant's testimony that due to the 20-month passage of time, she is unable to recall all of the details of the incident associated with the subject charge. It must be remembered, however, that the period of institutional or systemic delay in this matter is that of 9 months and 23 days and not 20 months. There is no evidence before me as to any prejudice that the defendant may have suffered as a result of the period of institutional delay which I have determined to exist in this proceeding.

[171] While I acknowledge the reasoning of Libman J. in his decision in Regina ex. rel. City of Toronto v. Andrade, that in light of the short time lines under Part I of the P.O.A., which "serve to place a premium on speedy justice", institutional delays of 9 or 10 months are unjustifiable even in the absence of evidence of prejudice, I find that the case at bar is distinguishable from the circumstances in the Andrade and Hariraj appeals, as those cases concerned minor traffic offences of "obstruct plate", "unreasonable noise" and "speeding", rather than a serious charge of careless driving involving a motor vehicle collision.

THE DECISION

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

[173] After assessing and balancing these factors, I have determined that of the 28 months of overall trial delay in this proceeding from May 17th, 2010 to September 17th, 2012, a period of 9 months and 23 days is attributable to institutional delay for which the prosecution is responsible. This period of institutional delay falls within the range of the administrative guidelines established in Regina v. Morin, supra; a range of 8 to 10 months of constitutionally tolerable institutional or systemic delay. The period of institutional delay in this proceeding may therefore be considered acceptable.

[174] There is no evidence before me that the defendant has suffered any prejudice to her right to liberty precipitated by the length of the institutional delay, which would justify a shortening of the period of acceptable institutional delay to a lower range.

[175] Accordingly I am satisfied, on a balance of probabilities, that the defendant's right to be tried of the subject offence within a reasonable time under subsection 11(b) of the Charter, has not been infringed. The defendant is not, therefore, entitled to a remedy under subsection 24(1) of the Charter.

[176] The defendant's application under subsections 11(b) and 24(1) of the Charter is therefore denied.

Released: September 17th, 2012

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