Court Information

Court: Ontario Court of Justice, Old City Hall - Toronto

Between: Her Majesty the Queen

And: Tracy Rueben

Before: Melvyn Green, J.

Counsel:

• S. De Filippis, for the Crown
• D. Brown, for the Defendant

Heard: February 26 and March 12, 2013

Reasons for Ruling

(Re Charter S. 11(b) Application)

A. INTRODUCTION

[1] On January 6, 2012, the defendant Tracy Rueben was arrested for driving a motor vehicle while impaired and while his blood-alcohol concentration ("BAC") exceeded the authorized legal limit. A little more than six months later, on September 27, 2012 (the defendant's twelfth court appearance), a one-day trial was scheduled for April 3, 2013, almost 15 months after the alleged offence date. Mr. Rueben, as applicant, claims that approximately a year of this delay is attributable to limitations on institutional resources and the conduct of the Crown, and that its cumulative effect is to violate his Charter s. 11(b)-protected right to a trial within a reasonable time. Accordingly, he applies to have the charges he faces stayed pursuant to s. 24(1) of the Charter.

[2] My review of the evidentiary foundation for this application and my consideration of the appropriate analytical framework and its application to the presenting facts follow, as do, ultimately, my ruling and its reasons.

B. EVIDENCE

(a) Circumstances of the Alleged Offences

[3] The defendant was driving in Toronto on January 6, 2012. His car's noise attracted the attention of the police who estimate he was driving at approximately 60 kph in a 40-kph zone. The police briefly pursued the defendant's vehicle and activated their emergency lights. The defendant only stopped once he pulled into the driveway of his home. Following a car-side investigation, the defendant was arrested for impaired driving. He provided breath samples at the nearest Intoxilyzer-equipped police station that recorded truncated BAC readings of 120 milligrams of alcohol in 100 millilitres of blood, approximately 50% in excess of the legal limit. The defendant was released from the station on a Promise to Appear that required him to attend court on February 16, 2012.

(b) Chronology of the Proceedings

(i) From Charge to Provision of the Requested "Disclosure"

[4] The Information charging the defendant was sworn on January 10, 2012. He attended court on his first scheduled appearance, February 16th, and collected the "initial disclosure" that was then provided. The matter had not yet been "screened" by the Crown and was remanded to March 15th. The defendant had by then retained counsel who, through an agent, filed a designation and requested maintenance and calibration records of the Intoxilyzer and the alcohol standard solution log. Counsel for the Crown requested that defence counsel direct his request to the assigned Crown. The matter was adjourned two further weeks, to March 29th, to effect this request.

[5] The defendant's counsel faxed the assigned Crown a letter detailing these same and closely related disclosure requests on March 19th. He anchored his requests in his need to determine whether an expert witness would be required and the provision of similar disclosure in other cases. "Unfortunately", he wrote, "I will be unable to have a meaningful resolution meeting with you without this disclosure as these items may impact the possibility of resolution, number of witnesses for trial and time estimates for trial". By faxed communication dated March 27th, the Crown "Case Management Coordinator" agreed, as a result of "a pragmatic decision", to provide most of the requested data despite her assertion that "such records are clearly and completely irrelevant". The writer noted that the material the Crown agreed to provide was "not actually disclosure" as it was "not actually relevant", and that the defence delay in fixing a trial date until an expert was consulted about these records was, in the context of s. 11(b) analysis, "either voluntary defence delay or part of the neutral period". References to various authorities bearing on this issue punctuated the Coordinator's letter.

[6] On the next appearance, March 29th, an agent for the defendant's counsel indicated that his principal had "yet to receive a response" to his request for additional disclosure. Counsel for the Crown urged defence counsel to arrange a pre-trial meeting with the assigned Crown. "Counsel's position for the record", as recited by his agent, was that he could not "have a meaningful pre-trial without this disclosure first". "At least", responded Crown counsel, "he can have a conversation with the assigned Crown between now and the next date [s]o hopefully we'll get whatever outstanding disclosure his way" which, he added, "we're in the process of getting … from the officer-in-charge". At the agent's request, the matter was further adjourned for four weeks, to April 26, 2012.

[7] No Crown pre-trial was conducted in the interim. On April 26th an agent for defence counsel advised that he was still "awaiting further evidence relating to the proper operation and maintenance of the Intoxilyzer machine [which counsel] needs to conduct a meaningful Crown pre-trial". Counsel for the Crown indicated that the records had "been ordered" and, at the request of the defence, the matter was adjourned to May 17th, some three weeks later. The disclosure at issue was still not available on the return date despite, according to counsel for the Crown, requests (presumably of the police) made on March 27th and May 4th. At the Crown's request, the matter was further adjourned to May 31st to "encourage" provision of the records. A near identical scenario unfolded on the return date: the Crown had still not received the requested materials and urged the defence to conduct a pre-trial with the assigned Crown in the interim, and an agent for the defendant's counsel reiterated his principal's "instruction [that] we cannot hold a meaningful Crown pre-trial with that disclosure". The Crown suggested the matter go over a further three weeks. The defendant's agent requested four weeks in view of counsel unavailability on the Crown-proposed date. In the end, the case was adjourned four weeks, to June 28th.

[8] Crown counsel finally provided the requested records to an agent for the defendant's counsel in open court on June 28th. The matter was remanded two further weeks, to July 12th, to permit defence counsel to review the new materials. Later that day, June 28th, the defence faxed a "Pre-Trial Request Form" to the Crown's office respecting the defendant's case.

[9] By June 28, 2012, nearly six months had transpired since the defendant's arrest without any effort to fix a trial date, without a Crown pre-trial and, not incidentally, without defence counsel once advancing any concern about the pace of the proceedings or any potential abridgement of his client's s. 11(b) rights.

(ii) From First Effort to Fix a Trial Date to Trial

[10] The defence did not receive a response from the Crown's office respecting its request to schedule a pre-trial meeting before the date scheduled for the next – and eighth – appearance. On that day, July 12th, an agent for the defendant's counsel advised the court that his principal was "eager, if possible, to set a trial date today and [had] provided [him] with dates to do so". (Although counsel's dates were not recited, his instructing memo, filed on this motion, specified his availability commencing July 20th and included dates in August, September and December of 2012 and January, February and March of 2013.) The agent also advised that there had been no response to defence counsel's request for a Crown pre-trial. The defence pre-trial request was not in the Crown brief and Crown counsel declined to fix a trial date since, in her words, "we don't know what the time estimate is". Defence counsel's agent suggested the matter go over two weeks "to get a Crown pre-trial and then we can get it set for trial". Accordingly, the matter was adjourned to July 26th.

[11] The futility that characterized the July 12th appearance recurred on the next three appearance dates, July 26th, August 16th and August 30th. On each occasion an agent for the defendant's counsel indicated that the defence's efforts to fix a trial date were frustrated by the Crown's failure to respond to the defence request for a pre-trial conference and the matter was put over to accommodate its occurrence. It appears that defence counsel's agent filled-out a further Crown pre-trial request in court on the first of these interim appearances, July 26th, and, perhaps the second, August 16th. On the last of these occasions, August 30th, the Crown brief was unavailable and the matter was adjourned four further weeks, to September 27th. A Crown pre-trial had by then been conducted, a one-day trial was anticipated, and the court offered April 3, 2013 for trial. Crown and defence counsel were prepared to proceed and that date, a little over six months later, was fixed for trial. Defence counsel's agent advised that his principal was available for trial as early as October 2nd and on many later dates that month and in every month up to April. Counsel for the Crown indicated that her office "was certainly available before" April 3, 2013 "but we're limited in court time".

[12] In summary, more than nine months separate the provision of the defence-requested record and the date set for the defendant's trial, some approximately six months of which are nominally attributable to limitations on court resources. As earlier noted, the April 3, 2013 trial date is almost 15 months after the defendant was charged with drinking and driving offences. Other than indicating its preparedness to fix a trial date on July 12, 2012 and on each interim appearance thereafter, the defence at no time signaled any concern respecting the defendant's s. 11(b) rights.

(c) The Defendant's Circumstances

[13] The defendant filed and was cross-examined on an affidavit detailing the personal impact of the charges and the delay in their resolution.

[14] The defendant was 49 years old at the time of his arrest. He has no criminal records and has lived in a common-law relationship for over 25 years. He worked for 17 years as the operator of mobile broadcast truck for a local television station and, as such, requires a driver's license. He was laid off for cause in August 2011, some five months before his arrest. As a result of his charges, the defendant was temporarily disqualified from resuming his duties at the time of his arbitration hearing on January 15, 2012. He accepted a resignation package that, among other benefits, included a year's salary that, at the time, was close to $90,000. The defendant began to collect Employment Insurance ("EI") on the first anniversary of his termination, in August 2012, reducing his annual income to a little over $11,000 a year. He has since supplemented this through the sale of a number of prized personal possessions.

[15] The defendant has not found fresh employment in what he describes as a small and highly competitive industry. He fears that any employer would require an abstract of his criminal record and that disclosure of his pending charges, particularly given their nature, would destroy his employment prospects. This, he says, is why he "instructed [his] lawyer to pursue a speedy trial date". The defendant has not endeavoured to find alternative employment in the interim as he hopes to return to his traditional line of work, because he does not believe he has the skills or experience to secure remunerative employment outside his field, and because the wage jobs that may be available offer no greater income than that he currently earns on EI. The protraction of the prosecution, along with his continued unemployment, has, he says, also taken a toll on his domestic relationship. He is now dependent on his wife's income and their reduced financial circumstances have led to arguments, conjugal alienation and his wife's growing sense of resentment.

[16] The duration of the proceedings has negatively affected the defendant's confidence and sense of self-worth and added to his anxiety. He has developed irregular eating and sleeping habits, become withdrawn and avoids social gatherings with friends. He has not consulted a physician or therapist with respect to any of these concerns. The expense of retaining counsel and counsel's many required court appearances have further strained the defendant's precarious financial situation.

[17] The defendant also fears that his memory of the relevant events has deteriorated and that this will compromise his effectiveness as a witness. He did not record his recall of the events and "specific details have been lost", he says, "as a result of the duration of the time that has passed."

[18] The defendant's account of the detrimental effect of the charges and their protraction is closely echoed in the affidavit of his wife, Lorraine Brown. She also comments on the lack of motivation, depression and helplessness she sees in the defendant as the process drags on. The unanticipated duration of the proceedings, she says, "has seriously harmed my relationship with [the defendant] and … we are stuck in a state of flux until [his] charges are dealt with".

C. THE PRINCIPLES GOVERNING S. 11(b) APPLICATIONS

[19] In R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, the Court of Appeal, at paras. 20-24, succinctly reiterated the long-settled principles that govern the determination of claims of unreasonable trial delay. Given its authoritative provenance, I here simply repeat the Court's recitation of the analytical scaffolding:

The framework for analyzing an application for a stay under s. 11(b) of the Charter is well-established. The court must consider: i) the overall length of the delay between the laying of the charges and the end of the trial; ii) whether the accused has waived any of the delay; iii) the reasons for the delay; and iv) prejudice to the accused.

The first factor, overall length of the delay, is a screening mechanism to determine whether an inquiry into the reasonableness of the delay is warranted. If the overall length of the delay, when considered in the context of all the circumstances (such as whether the accused is in custody), is unexceptional, no inquiry is required. Where an inquiry is warranted, time periods waived by the accused should be deducted from the overall length of the delay before considering the reasons for any remaining delay.

Five considerations come into play when considering the reasons for the delay: a) the inherent time requirements of the case; b) actions of the accused; c) actions of the Crown; d) limits on institutional resources; and e) other reasons for the delay.

One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights under the Charter to security of the person, liberty and a fair trial. An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights. Prejudice may be inferred where the delay between arrest and trial is simply too long.

Once the four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.

[20] (See, also, R. v. Morin, [1992] 1 S.C.R. 771, at para. 26-64 and, of very recent vintage, R. v. Nguyen, 2013 ONCA 169, at paras. 49-51.) I add, by way of completing this skeletal overview, that the societal interests engaged by s. 11(b) include ensuring that criminal charges, particularly serious ones, are tried on their merits and that those charged with criminal offences are not only brought to trial but quickly and fairly: R. v. Morin, supra, at paras. 26-30, R. v. Askov, 59 C.C.C. (3d) 449, at 474 (S.C.C.), R. v. Qureshi, 128 C.C.C. (3d) 453, at 458 (Ont. C.A.) and R. v. Godin, 2009 SCC 26, 245 C.C.C. (3d) 271, at para. 40 (S.C.C.). Finally, I note that a stay of proceedings is the only just and appropriate remedy once the s. 11(b) hurdle of "unreasonable delay" is crested: R. v. Thomson, 2009 ONCA 771, 248 C.C.C. (3d) 477, at paras. 9-10 (Ont. C.A.).

[21] The defendant, as with all assertions of Charter breach, carries the burden of establishing a violation of his s. 11(b) rights. While no mathematical formula obtains, the administrative guidelines first articulated by the Supreme Court in R. v. Morin, supra, afford some assistance in defining the reasonableness of pre-trial delay. In the case, as here, of a relatively simple provincial court trial, the standard for permissible institutional or systemic delay is eight to ten months. (See, also, R. v. G. (C.R.), 77 O.R. (3d) 308 (C.A.), at 315.) This metric must not be mistaken for a fixed limitation period; its contours – as with respect to tolerable global delay – are somewhat malleable, contingent on case-specific factors including, in particular, the degree of prejudice suffered by a defendant. (See Morin, supra, at para. 64, and R. v. Richards, 2010 ONSC 6202, at para. 32.)

[22] As summarized by the Supreme Court in R. v. Godin, supra, at para. 18:

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 instruction compels a careful balancing rather than any mechanical application. As said in Morin, at para. 31, it involves "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 delay" [emphasis added]. Here, as is frequently the case, the allocation of responsibility for and the legal characterization of discrete intervals that engender or contribute to delay are critical facets of the s. 11(b) adjudicative exercise.

D. APPLYING THE GOVERNING PRINCIPLES

(a) Introduction

[23] The Crown acknowledges that the total delay in this case – a week shy of 15 months – warrants constitutional scrutiny. It also acknowledges that the defendant did not waive any periods that compose this delay. Accordingly, the focus of the instant s. 11(b) analysis is on the reasons for the delay, the prejudice suffered by the defendant as a result of the delay and, in the final balancing, the weight to be given the operative societal interests.

[24] I begin with the reasons for the delay in this case.

(b) The Reasons for the Delay

(i) Limits on Institutional Resources

[25] In an ideal world cases would be tried as soon as counsel are ready to try them. The reality, however, is that the trial of any prosecution must await a court's capacity to absorb each case given institutional limitations on the compliment of judges, court staff and physical facilities. As already noted, Morin set an administrative guideline of six to eight months for tolerable delay attributable to such institutional factors. In the same case, at para. 52, the Supreme Court instructed that, "when the case load has been constant over a substantial period of time the delay envisaged by the guideline may be regarded as excessive". In relatively simple cases, such as the one before me, there has been a general, if not universal, judicial inclination to apply "the bottom of the Morin guidelines, rather than … the extreme upper limits" in assessing institutional delay: R. v. Stephens, [2007] O.J. No. 3500 (S.C.), at para. 67. (See, also, R. v. Meisner, [2003] O.J. No. 1948 (S.C.) and R. v. Osei, [2007] O.J. No. 768 (S.C.), at paras 39-40.) The settled practice in this courthouse reflects a similar, experience-based approach. As said in R. v. Salehji, [2010] O.J. No. 4889 (C.J.), at para. 10: "There is current case law specific to the Old City Hall, that a reasonable delay with respect to drinking and driving cases should be at the lower end of the range of eight to ten months set out in Morin". (See also: R. v. Leung, [2012] O.J. No. 1874 (C.J.), at para. 104 and R. v. Taylor, 2013 ONCJ 138, at paras. 28-30.)

[26] Here, the court offered a trial date a little over six months after counsel for the Crown and defence first requested one. While not a model of expediency, that period of institutional delay is well within – indeed, south of – the lower end of the systemic-delay window deemed acceptable in Morin. If, as claimed, the justiciable global delay infringes the defendant's s. 11(b) rights, it is not because of this court's inefficiency in accommodating his case. [1]

[27] There is some nuance in the calculation of delay properly attributable to institutional considerations. As has been recently re-affirmed, the institutional delay clock begins to run not when counsel fixes a date for trial but, rather, when he or she is available and prepared to conduct the trial. (See Morin, at para. 47, R. v. Lahiry, 2011 ONSC 6780, 283 C.C.C. (3d) 525, at para. 26 (Ont. S.C.) and R. v. Tran, supra, at para. 32 (Ont. C.A.).) Defence counsel advised that he was prepared to proceed to trial on October 2, 2012, approximately a week after the set-date appearance on September 27, 2012.

[28] Given counsels' agreement that no more than one day was required for the defendant's trial and Code J.'s observation in R. v. Lahiry, supra, at para. 31, with which I concur, that "in routine drinking and driving cases, the amount of time needed to prepare for a short trial is not great", I would ordinarily have no difficulty charging six months, or close thereto, to institutional delay. Here, however, defence counsel also seeks constitutional relief for alleged violations of his client's rights other than those protected by s. 11(b). There is no fault or impropriety in advancing such claims, and the parties intend to conduct the trial by way of a blended proceeding consistent with their one-day estimate. However, given the contemplation of ss. 10(b) and 8 Charter motions, no trial could occur until the defence pleadings and those of the Crown in response, as directed by the rules of this court, were properly filed. Put otherwise, no matter how eager the defence was to proceed to trial, the pursuit of Charter relief would inevitably delay the occasion of the trial until some date after the exchange of filings. Accordingly, I subtract a month (including the week defence counsel agrees should be treated as neutral due to his immediate trial unavailability) from the institutional component of the delay assessment in this case. [3] In the result, approximately five months fall under the rubric of institutional delay. I intend to treat the remanet of about one month between the date on which the trial was fixed (September 27, 2012) and its scheduled occurrence (April 3, 2013) as neutral – in the sense that it constitutes an inherent time requirement of a case in which a defence motion requiring a Crown response is advanced – in the s. 11(b) calculus.

(ii) Inherent Time Requirements of the Case

[29] As famously said by Sopinka J. in Morin, supra, at para. 41, "[a]ll offences have certain inherent time requirements which inevitably lead to delay. Just as the firetruck must get to the fire, so must a case be prepared. …". The essential preparation, or "intake", as it is often put, includes such activities, as detailed in Morin, at para. 42, as "retention of counsel, bail hearings, police and administration paperwork, disclosure, etc.". Given the routine nature of this prosecution, there seems little reason to depart from Code J.'s assessment in Lahiry, supra, that "two months is a reasonable intake period in simple drinking and driving cases". This approximation, on its face, is reflected in the early history of this case: an Information charging the defendant was sworn on January 10, 2012 (the start-date for any s. 11(b) calculation: R. v. Kalanj, [1989] 1 S.C.R. 1594, at 1607), conventional disclosure was provided to the defendant at his first appearance on February 16, 2012, and the defendant had retained counsel by the next remand date, March 15, 2012 – a little over two months from the time he was first charged. In the ordinary course, these two months, along with the month I have already allocated to "inherent time requirements" by virtue of the defendant's pursuit of ancillary Charter relief, are of neutral value in the s. 11(b) reckoning.

[30] There is a live question as to whether any additional interval is properly attributable to the inherent requirements of the case. This arises by virtue of the defence request for additional materials from the Crown that, in the end, were not conveyed to the defence until June 28, 2012 – some two and half months after they were first requested. Indeed, the legal characterization of this 2.3-month interval is central to the determination of the s. 11(b) evaluation in this case.

[31] There is a rich jurisprudence addressing the calculation and allocation of delay in the face of supplementary disclosure requests and the contingent setting of a trial date. (See, for example, Code J.'s review of the leading appellate decisions in R. v. Richards, supra, at para. 22 and R. v. Lahiry, supra, at paras. 106-115.) In my view, the s. 11(b) considerations in the instant case escape the need for the judicial gymnastics illustrated by these authorities. In short, the Crown provided the defendant with a full brief of that disclosure conventionally provided in drinking and driving prosecutions in Toronto on his very first appearance. Defence counsel, once subsequently retained, requested additional materials by way of "disclosure" on March 19, 2012. Those materials, pertaining primarily to historical instrumentation records bearing, at least arguably, on the reliability of the machinery used to test the defendant's BAC readings, were then not part of the typical disclosure package conveyed to the defence in drinking and driving prosecutions. Further, there was then no binding authority in Ontario as to whether the defence, by way of disclosure, was entitled to these records. [4]

[32] Before March 29th, the next scheduled appearance, the Crown responded to the defence request by agreeing, for understandably "pragmatic" reasons, to produce the sought materials while maintaining, on a principled basis, that they were "irrelevant" and, thus, not subject to any disclosure obligation. The passage of time to this point is clearly part of the inherent time requirements of the case. Given the then somewhat unusual nature of the requested records and the resources that had to be directed to their collection, collation and, ultimately, dissemination to the Crown and then defence, I consider the following four weeks – that is, until the next (and defence-requested) appearance on April 26th – to be similarly colourable. Crunching the numbers, the inherent time requirements of the case extended from the defendant being charged on January 10, 2012 until April 26, 2012 – a period of some 3½ months. The first two-week remand for purposes of conducting a Crown pre-trial (that is, the interval between the provision of the records on June 28, 2012 and first subsequent return date of July 12, 2012) are also legitimately part of the intake process. Factoring-in the month attributed to the necessary exchange of pleadings occasioned by the defence pursuit of additional Charter relief, the duration of the inherent time requirements of the case extends to a total of five months.

(iii) The Actions of the Crown

[33] I do not approach the following two-month interval (from April 26, 2012 to June 28, 2012, when the requested instrumentation records were finally handed to an agent for defendant's counsel) in the same manner as those months preceding April 26th. Whether or not the defence-sought materials were or were not constitutionally disclosable, the Crown had undertaken to provide them to the defence and had done so in circumstances where it knew that the defence (with, in my view, substantial reason) maintained that it could not conduct a meaningful Crown pre-trial conference, determine whether expert witnesses were required and, if so, their availability, or realistically estimate the time required to conduct a trial until it had an opportunity to review these records. No explanation has been advanced as to why the delivery of these promised materials should have taken longer than a month, nor is one otherwise apparent from the record. Accordingly, the two months immediately preceding provision of the requested records on June 28, 2012 are properly attributable to the actions of the Crown in the s. 11(b) calculus.

[34] Most of the 3-month period between the defence receipt of the requested instrumentation records on June 28, 2012 and the appearance at which the matter was finally set down for trial (September 27, 2012) is similarly colourable. The first two weeks of this interval is clearly assignable to the inherent time requirements of the case as it was intended to accommodate a Crown pre-trial meeting that the defence had promptly requested. Despite repeated defence urgings, the assigned Crown did not respond to defence counsel's entreaties until sometime after August 30th (and four intermediate appearances). In my view, the 2½ months between July 12 and September 27, 2012 is a product of the Crown's dilatory conduct and, accordingly, attributable to the action, or inaction, of the Crown in the assessment of pre-trial delay. As said by Code J. of closely analogous circumstances in R. v. Emanuel, 2012 ONSC 1132, [2012] O.J. No. 709, at para. 12:

The defence was seeking a pre-trial meeting with the Crown, after the neutral intake period, and the Crown was repeatedly unavailable. This was unreasonable and the resulting delay was, therefore, due to the actions of the Crown.

[35] In total, then, I find that some 4½ months of the global delay are properly allocated to the Crown.

(iv) The Actions of the Accused

[36] The defence demand for additional disclosure undoubtedly contributed to the overall delay and, at the time, the Crown's disclosure obligation respecting these materials was unsettled. Despite the repeated invitations of Crown counsel in assignment court, the defence did not initiate or conduct a Crown pre-trial meeting while awaiting receipt of the supplementary disclosure. The repeated failure to take this step is arguably ascribable to actions of the accused. However, any such meeting would have served no more than a cosmetic function in the context of s. 11(b) analysis as little progress could have been made in this case without the defence first having an opportunity to assess the outstanding disclosure. As Crown counsel explained in declining defence counsel's initial efforts to fix a trial date, absent the advantage of an informed Crown pre-trial "[w]e don't know what the time estimate is". Further, having agreed to deliver the defence-requested records the Crown cannot now charge the defence with its own delay in providing them. Accordingly, I do not attribute any of the delay to the conduct of the defence. In these circumstances, and as I have already detailed, I view the disclosure-related delays as attributable to both the inherent time requirements of the case and, where Crown unresponsiveness passed the bounds of reasonableness, the conduct of the Crown.

(c) The Interests Protected by S. 11(b)

(i) Introduction

[37] As noted earlier, the interests protected by s. 11(b) are, primarily, those individual to an accused and, secondarily, those of society. As explained more fully in Morin, at paras. 26-30:

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. …

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. …

There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. … [T]he interests of the accused must be balanced by the interests of society in law enforcement. T[here is] "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" [citing R. v. Askov, supra]. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.

The impact of delay on a defendant's interests is generally assessed under the rubric of "prejudice", and it is to these considerations that I now turn.

(ii) Prejudice

[38] Almost all of the prejudice of which defendant complains – his unemployment and its impact on his self-esteem, emotional and physical health and relationship with his wife – flow from the loss of his job, his inability to secure a similar position and the financial embarrassment he suffered as a result. The defendant's job loss preceded his being charged. His failure to find fresh employment in the same industry is, on his own explanation, a product of the nature of the charges: drinking and driving offences. He did nothing to mitigate these adverse effects by even seeking, let alone securing, employment in an alternative line of work or by seeking treatment or other support for his psychological distress and deteriorating health. The protraction of the proceedings may have extended the negative consequences of his unemployment, but it is difficult to locate more than impressionistic evidence of this on the record before me or, more generally, attribute their more pernicious effects – that is, actual prejudice – to any delay in completing his trial. Whatever specific prejudice to the defendant's security interests may be assigned to the duration of the proceedings (as opposed to the charges themselves), its impact is relatively slight.

[39] Further, the defendant's concern respecting his compromised memory is hard to reconcile with his own failure to record his recollection of the events at issue soon after their occurrence – or at any time thereafter. Absent any concrete examples or grounding in the evidence, I give no credence to the claim that the defendant's fair trial rights were hobbled by the delay. As for the defendant's mobility rights, other than the 90-day driving suspension that is directly attributable to his arrest and charges (and likely contributed to any negotiating disadvantage at his arbitration hearing in January 2012), there are and were no restrictions on his liberty of movement and certainly none that can be said to derive directly from the protraction of the prosecution.

[40] Finally, the record evinces no defence-articulated concern about the risk to the defendant's right to a trial without unreasonable delay. While the defendant avers that he "instructed [his] lawyer to pursue a speedy trial date", nothing in his counsel's agents' many appearances reflects this direction. Section 11(b) posturing is to be abjured but, here, there is nothing but "radio silence" (to borrow a metaphor from Godin) respecting the pace of the prosecution.

[41] In the end, there is little basis to find any actual prejudice attributable to trial delay rather than the charges themselves. I appreciate that where, as here, there has been no waiver, cognizable prejudice may inferred from the nearly 15 months that have passed since the defendant was first charged: R. v. Rahey, [1987] 1 S.C.R. 588, at 624, per Wilson J., R. v. Godin, supra, at para. 34, R. v. Tran, supra, at para. 23, and R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 34 (Ont. C.A.). Nonetheless, I find its effect relatively modest in the circumstances of this case.

(iii) Societal Interests

[42] Summarizing the weight of the authorities, Code J., in R. v. Lahiry, supra, at para. 89, observed that "for over twenty-five years drinking and driving has been regarded as a very serious offence". The allegations before me do not make out the most egregious of such offences: there were, fortunately, no collisions, injuries or immediate threats to other drivers or pedestrians. However, taking the allegations at face value, as I must for purposes of this application, the defendant, who was impaired and had a BAC well beyond the legal limit, failed to stop for a pursuing police vehicle while driving through a residential area at an excessive rate of speed. He represented a moving hazard of his own creation. The offences that attach to his conduct attract both grave public disapprobation and a minimum penalty, including the loss of driving privileges, upon conviction.

(d) The Balancing

[43] Some 14¾ months will have passed between the date the defendant was charged and his scheduled trial date. Five months of this period, on my calculation, are properly assigned to the inherent time requirements of the case and, but for any inferred prejudice, effectively neutralized for s. 11(b) purposes. Attribution for the remaining 9¾ months is divided between institutional delay (5¼ months) and actions of the Crown (4½ months). The latter delay is generally viewed more seriously in the s. 11(b) calculus than that attributed to institutional factors. (See my canvass of the relevant authorities in R. v. Taylor, supra, at paras. 39 and 45.) Nonetheless, the total justiciable delay is under ten months – within the one-stage trial guideline (if for systemic delay) proposed in Morin and less than two months beyond that delay recognized as reasonable in the Old City Hall courts. In these close-to-the-line circumstances, the duration of constitutionally tolerable delay often pivots, as it does here, on the severity of the prejudice suffered by a defendant and the degree of societal concern for a trial on the merits – in short, a balancing that includes the nature and extent of the s. 11(b)-protected interests.

[44] The actual delay-attributable prejudice endured by the defendant is minimal and that arising by inference from the overall protraction of the case is, as I have also found, of not much greater gravity. Further, no complaint was ever raised as to the progress of the litigation until after the trial date was fixed and the defence filed its s. 11(b) pleadings. On the other hand, appellate courts have repeatedly described the charged offences as "very serious" matters, a characterization that argues strongly for a trial on the merits. Given the marginally excessive global delay, the modest prejudice attributable to that delay and society's censure of drinking and driving offences, I am not persuaded, on the requisite balancing, that the defendant's s. 11(b) rights have been infringed. Put otherwise, the pre-trial delay is constitutionally tolerable given the resolution of the tension between the competing protected interests in the circumstances of this particular case. Accordingly, the application to stay the charges on this basis is dismissed.

E. CONCLUSION

[45] For the reasons set out, the defendant's application to stay the charges against him on the grounds of unreasonable delay is dismissed.

Released on March 28, 2013

Revised version filed on April 3, 2013

Justice Melvyn Green

Footnotes

[1] Anecdotally, it appears that trial efficiency in some provinces (Quebec and Alberta, for example) is such that s. 11(b) applications, at least at the provincial court level, are extremely rare. This may speak to trial management strategies or the level of criminal justice resource investment in these provinces, or both. It may also speak to prosecutorial diligence and tenacity. In any event, and by way of contrast, claims of unreasonable trial delay are notoriously commonplace in Ontario.

[2] For an alternative, "reality"-based interpretation of the governing authorities on this point, see R. v. Sikorski and Griffiths, 2013 ONSC 1714, at paras. 87-98.

[3] I note, in passim, that there is no bar to the defence filing Charter motions seeking exclusionary remedies prior to the date on which a trial is set, to be argued on a "date to be fixed". Assuming such motion was filed sufficiently in advance of the date on which a trial was scheduled to permit the Crown's response, there would be no reason to "neutralize" any of that period that would otherwise be characterized as institutional delay to accommodate this exchange of pleadings. Adoption of this protocol might also afford evidence of a defendant's desire for an early trial.

[4] On November 2, 2012 (more than four months after the defence-sought materials were finally provided and some five weeks after the trial date in the instant matter was finally fixed), the Supreme Court, in R. v. St-Onge Lamoureux, 2012 SCC 57, 96 C.R. (6th) 221, held that much if not all of the records here requested by the defence are subject to disclosure by the Crown (see, esp., at paras. 48 and 78). It seems fair to say that, even in retrospect, the Supreme Court's conclusion in this regard was far from a foregone conclusion.