Court Information

Ontario Court of Justice

Date: 2014-09-30

Court File No.: Central East - Newmarket 4911-998-13-05363-00

Parties

Between:

Her Majesty the Queen

— And —

Chi Kong Cheung

Judicial Officer and Counsel

Before: Justice David S. Rose

Heard on: September 15, 2014

Ruling on 11(b) Application released on: September 30, 2014

Counsel:

• B. Jurianz, counsel for the Crown
• P. Lindsay, counsel for the defendant Chi Kong Cheung

Decision

ROSE J.:

[1] Mr. Chi Kong Cheung is charged with the offence of Impaired Driving as a result of an arrest on July 1, 2013. The case came before me on September 15, 2014 for trial, and I commenced the trial by hearing an Application to stay the proceedings on the basis of a violation of s. 11(b) of the Charter. I was advised by Counsel that an earlier date for hearing the 11(b) Application was not available and the Court advised Defence Counsel to bring the Application to stay on the trial date.

[2] The approach to an 11(b) Application is well established by R. v. Morin and its progeny, and I consider each factor in turn.

The Length of the Delay

[3] The overall period of delay in this case is from July 19, 2013 when the Information was sworn to December 8, 2014 when there is a target trial date.

[4] A case of straightforward Impaired Driving which takes over 17 months to come to trial is in my humble view one which raises a prima facie issue of reasonableness of delay.

Waiver of Time Periods

[5] Mr. Lindsay does not concede any waiver of the delay in this case, nor do I understand the Crown in its submissions to suggest that the defence has waived any delay. I can find no waiver of delay by the defence in this case.

Reasons for the Delay

[6] The intake period in this case started on July 19, 2013 and ended on August 26, 2013. On that date the case came before Mr. Justice Chisvin to set a date for trial. The intake period is within the typical time period for summary conviction offences proceeding in the normal course. If anything, the intake period is rather short, which is to be commended. The transcript from that August 26 appearance reveals that a Crown pre-trial had been conducted and a trial date of January 20, 2014 was offered. The Court could offer January 2, 2014 but Mr. Lindsay was not available. Similarly Mr. Lindsay was not available until August 29 at the earliest.

[7] In R. v. Lahiry Justice Code ruled that some amount of time must be deducted from what is otherwise institutional delay between the date a trial is set and the actual date for trial. This is a recognition that it takes some amount of time for all parties to get ready for trial. On this basis I am prepared to find that two weeks is the appropriate amount of time required after the trial date is set, to allow for experience counsel to get ready for trial. Mr. Lindsay is experienced counsel and can prepare a straightforward case like this in a couple of weeks.

[8] I therefore find that the institutional delay in the case up to the first trial date spanned the period from September 9, 2013 until January 2, 2014 when the Court first had time. This amounts to some 3 months 3 weeks.

[9] On January 20, 2014 the Crown obtained an adjournment of the trial because former Police Officer Barry did not appear for the trial date. It is worth noting that Mr. Barry was no longer with the police force, and no-one at the Police office had thought to subpoena him or even notify the Crown office of this development. Defence Counsel opposed the adjournment. Mr. Justice Bourque granted the adjournment request, noting that the police failure to bring Mr. Barry to Court was negligent, albeit not grossly negligent.

[10] Given that the case was not going to be tried on January 20, 2014 Mr. Lindsay asked for an additional piece of disclosure, a 911 call. The transcript from that day reveals that he would have proceeded to trial without it, but now wanted it if the trial was going over. Mr. Lindsay's comment on that day was that his client was anxious to deal with the matter. A new trial date of June 25, 2014 was assigned. According to the trial scheduling sheet Mr. Lindsay declined earlier dates in June, but had many other intervening dates between January 20, 2014 and June 25. On the evidence before me Mr. Cheung wanted his trial to go ahead expeditiously, and his lawyer was reasonably available. Given Mr. Lindsay's opposition to a Crown adjournment, there is evidence that the defence wanted an early trial date, and so I decline to apportion the delay between January 20, 2014 and June 25, 2014 as the Court did in Findlater. Mr. Lindsay is not expected to make himself perpetually available. The entire time from January 20, 2014 until June 25, 2014 is therefore Crown delay. This amounts to 5 months 1 week.

[11] On June 25, 2014 the matter came before Mme. Justice Johnston. The 911 call that Mr. Lindsay had ordered from the Crown office was not made available to him until June 24, 2014. It is a 5 minute call that the Crown fairly conceded was detrimental to the Applicant's chances at trial. The Crown conceded on the day that the 911 call was ordered in a timely fashion, and there was no apparent reason for its late disclosure.

[12] It is also apparent from the record that on June 25, 2014 that Mr. Barry was not notified about the trial date or present. His necessity at trial appears to have fallen away when the Crown decided to proceed only on the Impaired Driving Count. From this I find that the January 20, 2014 date was in the end completely unnecessary insofar as the first trial date was abandoned because of a Crown witness being unavailable where the witness turned out to be immaterial.

[13] Justice Johnston granted the Defence adjournment request, and a new trial date of September 15 was picked. The Over 80 charge was withdrawn and the possibility of an 11(b) motion was canvassed on the record. On June 25, 2014 the earliest available trial date offered was July 11, and 7 dates from then until September 15 were made available to the Defence but were not taken by the Defence. 2 of those were dates unavailable to the Crown. It appears from the Application Record that Mr. Lindsay had other dates in that time frame which were not available to the Court. It is therefore my finding that Mr. Lindsay made himself reasonably available in this time frame. His indication on June 25 that there would be an 11(b) Application in this case was therefore an indication that an early trial date was needed, and so the delay in this period is not apportioned as between the Crown and defence. This delay is attributed entirely to the Crown and amounts to 2 months and 3 weeks.

[14] The time period from September 15, 2014 to the trial date is some 2 months 3 weeks. This I take as inherent delay, due to the fact that the 11(b) motion could not be accommodated prior to the agreed upon trial date of September 15, 2014. This period is of neutral assignment in my view due to the fact that the 11(b) motion could not be assigned a Court sufficiently in advance of the September 15 trial date to allow for adjudication of the issue prior to that date.

[15] I therefore calculate the amount of Crown and institutional delay to be 11 months and 3 weeks. This is well beyond the 8–10 month guideline which the Supreme Court of Canada set in Morin.

Inherent Time Requirements

[16] This case seems to arise from a relatively straightforward Impaired Driving Investigation. 1 day seems an accurate time estimate for completion of evidence and submissions.

Actions of the Accused

[17] I can find nothing which contributed to the delay. Indeed, it appears that Mr. Lindsay opposed the adjournment request of January 20, 2014. The defence adjournment request of June 25, 2014 was required because of late disclosure, which does not fall at the feet of the defence.

Actions of the Crown

[18] As described above, the Crown required an adjournment of the first trial date because one of its witnesses was not notified of the trial date. Justice Bourque found that there was a degree of negligence in failing to subpoena Mr. Barry for the January 20, 2014 trial date. In addition to that finding it is unfortunate that the crown appears to have abandoned the need for Mr. Barry at trial. The Crown request for adjournment of the January 20 trial date was therefore unnecessary as things turned out.

[19] The June 25 trial date was adjourned because of disclosure which, while properly requested in January 2014, was not produced until the day of trial. There was no explanation provided by the Crown for this. Late disclosure without any reason is something that falls at the feet of the Crown in this instance.

Limits on Institutional Resources

[20] This case does not appear to have suffered from limits on institutional resources. The delay in this case seems to be due to disorganization on the part of the police in getting witnesses notified, and failure by the Crown to provide timely disclosure of relevant material.

Prejudice

[21] The Applicant filed an Affidavit, and was not cross-examined on it. He is 35 years old, has no criminal record, and no outstanding charges. Much of his Affidavit speaks of prejudice which is the result of being charged, as opposed to the delay in bringing the matter to trial. There is, however, evidence of actual prejudice flowing from the delay itself. He had to take additional time off work which was not vacation work. Also, the delay resulted in financial loss for the additional fees of the Expert Mr. Moftah. This is hardly surprising. Missed trial dates inherently drive up the costs of defending a criminal charge, and I would have been prepared to infer this even if there was no affidavit evidence. I agree that there is additional prejudice for an accused who must appear for multiple trial dates.

[22] With his usual candour, Mr. Jurianz conceded that there was evidence of prejudice in this case. He submitted that the evidence was middle of the road in the overall scheme of things, but I find that the prejudice for two missed trial dates is something more than that.

Balancing the Interests

[23] Society almost always has an interest in trials proceeding on their merits, but the question is by how much? Drinking and driving is a very serious concern in Canada, but cast against a delay of institutional and Crown factors of almost 12 months, which is well beyond the range of constitutionally acceptable delay, and the fact that the accused has no record, that there is no allegation of an Over 80 charge, or an accident, and the prejudice to the Applicant as noted above, the scales in this heading are tipped in favour of the Applicant.

Conclusion

[24] I find that the Applicant has met the onus. There is a violation of his rights under s. 11(b) of the Charter and the charge before the Court will be stayed.

[25] I wish to thank both counsel for their able, helpful, and succinct submissions.

Released: September 30, 2014

Signed: "Justice David S. Rose"