Court File and Parties

Court File No.: Halton 14-419 Date: 2015-03-16 Ontario Court of Justice

Between: Her Majesty the Queen — And — Hany Ibrahim

Before: Justice Stephen D. Brown

Heard on: March 3, 2015

Reasons for Ruling on an 11(b) Charter Application released on: March 16, 2015

Counsel:

• Emily Roda, for the Crown
• Jonathan Rosenthal, for the accused Hany Ibrahim

Brown, J.:

A. INTRODUCTION

[1] Hany Ibrahim is charged with operating a motor vehicle while his blood alcohol level exceeded 80 mgs of alcohol in 100 mLs of blood. The defendant, through his counsel, makes an application pursuant to s. 11(b) of the Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time" has been infringed.

[2] The relief sought is pursuant to s. 24(1) of the Charter which is a judicial stay of proceedings.

[3] He was charged with this offence on February 8, 2014, and was released on a promise to appear with a first appearance date of February 25, 2014. He privately retained Mr. Rosenthal before the first appearance.

[4] The Crown provided disclosure to the applicant on February 25, 2014, on March 13 the Crown pretrial was held and on March 28 a trial date was set for October 9, 2014, estimated to take one full day of court time.

[5] On October 9, 2014 he appeared for trial before my brother Justice LeDressay, but on that date the list was significantly overbooked, as it is on most days in this jurisdiction.

[6] A new trial date is now set for March 26, 2015. The defendant will have waited approximately 13 months and 16 days since the information was sworn to have his matters adjudicated in this court. Although the Crown opposes the application, they do acknowledge that the period of delay warrants examination.

B. THE SECTION 11(b) ANALYTICAL FRAMEWORK

[7] Courts have, since R. v. Morin, [1992] 1 S.C.R. 771, been instructed to apply the section 11(b) principles flexibly, taking into account several required factors. Of some irony is that this trial is scheduled to continue on March 26, 2015, the 23rd anniversary of the release of the Morin judgment. The factors that have to be considered are set out as follows:

1. The length of 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 delay; and,

4. Prejudice to the accused.

[8] In R. v. Godin, 2009 SCC 26, 2009 S.C.J. No 26, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:

The legal framework for the appeal was set out by the Court in Morin, 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 interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

[9] The Court went on to restate, "...that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice." The Court further stated at paragraph 37 and 38 that:

37 It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

38 Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.

[10] An 11(b) analysis requires a balancing of two distinct rights: the individual rights of the accused and general societal rights. As Mr. Justice Laskin explained in R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.), at paras. 8 and 9:

Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1 (S.C.C.) at p. 12.

Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. See R. v. MacDougall, [1998] 3 S.C.R. 45, 128 C.C.C. (3d) 483 (S.C.C.) at p. 496.

C. APPLYING THE ANALYTICAL FRAMEWORK

1. The Length of the Delay

[11] The total time from charge to conclusion of trial in this matter will be 13 months and 16 days, a time that warrants scrutiny into the reasonableness of the delay.

2. Waiver of Some or All of the Time Periods

[12] There is nothing in this case that indicates that the defendant was not ready and willing to proceed to trial at the earliest possible time. He retained counsel before the first court appearance and then moved expeditiously to obtain and review disclosure, set a Crown pretrial date wherein an estimate of one day of trial time was arrived at by both parties, and then took the first available trial date that was offered on March 18, 2014, which was October 9, 2014. The first date available to the Crown but not the defence because of a conflict was October 8. Thereafter, the defence was available on October 9, 2014, and so that date was set.

[13] Mr. Rosenthal relies upon an affidavit of his assistant to address the Tran and Lahiry matters that states that as of March 18, 2014 Mr. Rosenthal was available to conduct the trial starting March 24, 2014 and several dates closely after that.

3. Reasons for the Delay

(a) Inherent Time Requirements of the Case

[14] This is a straightforward case with no complex legal or Charter arguments filed, to be conducted by an experienced and highly competent defence counsel who, in my experience, identifies and argues the important issues in a case and does not waste arguments on marginal legal minutiae likely to fail. The investigation was complete on the night of the accused's arrest. The trial time needed was estimated to be one day by both parties, a realistic time estimate, in my view, and did not underestimate the time required, as is often the case. Mr. Rosenthal filed a straightforward Charter application that I reviewed in April of last year, but the Crown failed to file its response until six days before the trial date.

[15] There is no reason why this trial cannot and should not have been accommodated within the guidelines as suggested in R. v. Morin, supra; that is, an institutional delay period of between 8 to 10 months.

[16] On that first trial date, however, the court that the defendant's case was assigned to was fully booked and was unable to accommodate the trial because of other matters that the Crown gave priority to. At 2:30 p.m. the matter was addressed again and it was determined that if the parties started the case before the presiding trial judge they were unlikely to get a continuation date any sooner than if they simply set a fresh new trial date. Mr. Bradley, the Crown on the first trial date, quite properly gave priority to a matter that was up for trial for the second time and, accordingly, the applicant's matter was held down and the need for assistance was communicated to the trial coordinator. However, it appears that no other court was in a position to assist.

[17] The intake period of this case was done within a reasonable period of time by both parties and, of course, is neutral time in the analysis. This period was from the date of the charge (February 8, 2014) to the time the parties were able to set the first trial date, which was March 18, 2014, a neutral time period of 1 month and 10 days. The Crown, Ms. Roda, in her submissions erroneously said that the intake period was 55 days in total.

[18] She then surprisingly suggested in oral submissions that it is actually about two months in total.

[19] Such 'rounding up' of the times in this matter to enhance the Crown's interpretation of the applicable time periods does not sit well with me and causes me to scrutinize her submissions more than I should have to. In a close case such as this the Crown, in my view, should not be 'rounding up' to get every available day favourable to its case, but should be fair in its assessment of the time periods under review.

[20] Of further concern to me is that the Crown is suggesting that the clock should stop at September 4th when the first trial date was offered according to the Request for Trial form.

[21] The problem with this submission is that the Crown was also unavailable for trial on that date and on the subsequent date of September 15. It is only on October 8th that the Crown is available and the defence is not, and the next day that is offered is October 9th, which was the date accepted. I cannot understand why Ms. Roda would suggest that the clock should stop on a date when the Crown itself is unavailable for trial simply because the trial coordinator offered that date which, in turn, was unavailable to both parties.

[22] Deducting that amount of time from the overall time frame of 13 months and 16 days, we then reduce the total time under scrutiny as institutional delay to a period of 12 months and 6 days.

(b) Actions of the Accused

Availability of Counsel

[23] In the case of R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83, the Court of Appeal stated that:

Parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel requires time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing ... and these times are part of the inherent time requirements of the case.

[24] In determining these issues, there should be some evidence either at the time the trial date was set or at the 11(b) hearing upon which this matter can be ascertained. If not, it would appear that the Court is free to (as in Tran) substitute its own estimates. In assessing the defence preparation time, obviously counsel's expertise in dealing with this type of case is a consideration.

[25] I have no doubt that Mr. Rosenthal could have prepared and filed the necessary paperwork required in this straightforward and simple case within a day or two at most. Because the Charter issues advanced are not complex and do not require the attendance of any additional witnesses, the Crown could have responded to the application within one week. Indeed, they filed their reply to his application that was filed in April 2014 only six days before the trial date. The transcript of October 9th shows that Justice LeDressay asked one of our judicial administrative assistants if the Crown response had been filed. Our assistant then contacted the Crown's office to see whether a reply had been filed by the Crown. Apparently it had been overlooked and it appears that when the Crown became aware of this they were able to file their response within one day.

[26] Ms. Roda for the Crown submits that there should be a two-month period ascribed as neutral time; however, I disagree. She states that The Criminal Rules of the Ontario Court of Justice require that Mr. Rosenthal give 30 days notice of his Charter application. I cannot agree with that submission. The fundamental principle of the Rules state in the first section that: "1.1 (1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently."

[27] I see no reason why a judge would not have allowed an abridgment of those time periods to allow an accused, who obviously desired a speedy trial, to have it within a 6-day period. Having reviewed the application and response on the s. 8, 9 and 10(b) Charter applications filed in this matter, no trial judge would be able to complain that having the applications land on their desk the morning of the trial would not have caused any concern. As I have stated the, Charter motion is quite straightforward and is dealt with by judges every day in our courts.

[28] I accept that if Mr. Rosenthal had been offered one of the dates that he was available in March or April of 2014, he could have conducted the trial on that date. The fact that he did not file the applications for Charter relief until April of 2014 causes me no concern. He was only required by the Rules to file them by September 9, 2014 if he only wanted to give the Crown the minimum notice. Instead, he gave the Crown five months notice. As stated before, a counsel of Mr. Rosenthal's quality would have been able to complete the application in a day or two at the most.

[29] Taking all of these factors into account, I believe that ascribing a period of 6 days is appropriate in order for both counsel to be prepared to conduct the trial and, as such, should be deducted from the period of institutional delay as per the factors set out in R. v. Tran. This reduces the overall time period for institutional delay to 12 months.

[30] The Crown urges me to apportion some of the delay between the first trial date to the defence because Mr. Rosenthal was offered a few other dates. However, the record of what, if any, dates offered is unclear on the transcript of October 9th. It is also not documented on the Confirmation of Date form filled out by the trial coordinator on October 9th. It would have been preferable had Crown counsel on that date set out what dates were available and put them on the record, but this was not done.

[31] The record was similarly unclear with respect to some of the periods of time in R. v. W.(A.J.), 2009 ONCA 661, [2009] O.J. No. 3814 (Ont. C.A.). With respect to those periods, Rosenberg J.A. held at para 34:

I take a different view of the period from July 31 to October 29, 2007. With the exception of this period, on all other occasions when the matter had to be re-scheduled, Crown counsel took care to put on the record dates when the trial could be accommodated but defence counsel was not available. However, during this period, neither Crown counsel nor the court made reference to any dates. In my view, the record is reasonably open to the inference that the system was not able to accommodate this case from July 31 until October 29, 2007. Given that the initial reason for the delay was institutional delay, the evidentiary burden was on the state to show the system was able to accommodate this trial: see Morin at p. 788. Thus, this 3 month period must be characterized as institutional delay.

[32] This was a matter that was in 11(b) jeopardy, yet it appears that there was no priority given to it in the system. That is perplexing in that it was clear that the defence was not waiving their 11(b) rights. Indeed, they were asserting them clearly on the record.

[33] Also, the fact that Mr. Rosenthal did not commence the trial on October 9th and perhaps get partway through the direct examination of the Crown's first witness was understandable given that there was no clear information that the trial would have been able to be completed any sooner in that case than in the course that it took. The Crown, whose obligation it is to bring the accused to trial, did not press or suggest this course of action on the first trial date and seemed to acquiesce to starting on a fresh date in the future. There is no evidence before me on this record that starting a trial on the first trial date with Justice LeDressay would have resulted in an earlier completion of this case.

[34] Had that been the case, Mr. Ibrahim would have been at liberty to bring the same motion that he has advanced at this point as his trial would, in all likelihood, not have completed and would have been adjourned to a similar time period as we are now dealing with.

[35] Ms. Roda also makes the submission that by not utilizing the short time available in the afternoon of October 9th, this shows that the applicant did not want to get this matter to trial at the earliest possible time. She suggests that the trial that preceded this one on that day was finished by 2:30 p.m., so it is conceivable that Mr. Ibrahim's trial could have possibly even concluded on October 9th. I find this strange because she provides no evidence to support what sort of trial it was that was given priority over the applicant's. That trial may have only been set for two or three hours. That trial may have turned into a plea or been withdrawn. It may have been a continuation of a trial that only had one more witness to hear or perhaps only submissions to hear.

[36] To suggest that there is some waiver of 11(b) rights by implying that the applicant's trial could have conceivably been finished on the first trial date by comparing it to the preceding trial when nothing is known about the preceding trial seems, at best, to be reaching to me. Simply put, counsel should not make this submission absent any evidence to support it. It smacks of desperation.

[37] Trial judges in this region are overburdened with trial continuations largely from the underestimation of time by trial counsel and it is much more preferable to have matters heard and adjudged on one day than to have trials split up over several months.

[38] Mr. Rosenthal states that he was available for a new trial date on October 30th, so I will deduct a further 3 weeks from the institutional delay. Therefore, the total institutional delay, as I find it in this matter, is 11 months and one week. His argument is compelling that no deduction should be made for a trial that cannot be concluded on the day it was scheduled for. If I were to accede to that position, which I may very well do in the future, it would only add another 3 weeks to the calculus which would not have the effect of changing the result of this ruling. On the other hand, Ms. Roda's submission that the clock should stop on September 4th when the trial coordinator offered a date for trial when both the defence and the Crown were unavailable to continue the trial seems odd.

[39] Presumably counsel could have conducted this trial on the next day. The client and all witnesses were prepared for trial and all Charter issues had been crystallized. To say that the institutional clock should stop running when a trial is not reached due to a Crown decision to prioritize another matter and then to suggest that the institutional delay clock should be stopped when the first date offered by the trial coordinator is not available to either party seems to me to be an artificial construct and a legal fiction. Obviously counsel was not available on the next day offered for trial because he had set a one-day trial date on the presumption that he would get one day of trial, not one and three-quarters of an hour of trial time.

[40] To offer "a few" dates for continuation from October 9th to March 26th does, in my view, not stop the clock running against the institutional delay from October 30th when Mr. Rosenthal was next available to do the trial. I refer to Justice Cromwell's comments in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, (S.C.C.) at para. 23 where he states:

Scheduling requires reasonable availability and reasonable co-operation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

(c) Actions of the Crown

[41] The Crown chose on October 9th to proceed with another trial that was up for the second time in preference to starting Mr. Ibrahim's case first thing in the morning. They cannot be faulted for giving priority to another accused over that of the defendant in this case, but as Justice Hill stated in R. v. Pusic, [1996] O.J. No. 3329 (Gen. Div.) at page 11:

Where the prosecution seeks to give a priority to other cases in the system, the consequences of its conduct may be assessed accordingly.

(d) Limits on Institutional Resources

[42] In my decision in R. v. Papandrea, 2012 ONCJ 651, [2012] O.J. No. 4880, I attempted a thorough review of the problems facing Halton Region and the lack of adequate judicial resources and infrastructure that plague this fast growing region under my analysis in paras 32-49 of that judgment. I adopt and incorporate those reasons into this decision.

[43] Since that judgment was released in October of 2012 there have been no further resources provided to this region. Indeed, we are in a worse position now than we were at that time. We still have seven judges in the Ontario Court of Justice for this region, a complement that has not increased since 2004 despite the phenomenal growth that Halton Region has experienced and continues to experience. In 2012 we had two judges who primarily did family law, however 25 per cent of their case load was also criminal. These judges were getting overwhelmed with the number of family matters and child protection proceedings in the region and were, and still are, regularly opening court at 9:00 a.m. and sometimes not adjourning until 6:00 p.m. to try to cope with the flood of family law matters.

[44] After much consideration it was decided by our bench that both of those judges would be dedicated to strictly family law matters and late last year we commenced to schedule them out of criminal court. As the Local Administrative Judge for this region, my colleagues and I decided that the wait times for child protection and custody matters were too long and we, therefore, had to allocate the family judges full time to family law.

[45] All of my colleagues agreed that this was an essential step because lengthy wait times in the determination of custody or apprehension hearings for a young child are simply unacceptable.

[46] One of the results of this is that we are now effectively down one-half of one judicial complement because these two judges are now not doing criminal trials.

[47] We are finding that 11(b) motions are now being placed on full trial lists. These motions take time to argue and decide and reduce the amount of time that is available to hear cases that have been set on trial lists at the outer edge of the acceptable period of delay.

[48] Our present Regional Senior Justice Sharon Nicklas has been working exceptionally hard with us to help develop new procedures to address issues that plague this region such as trials that collapse on the first day of multi-day trials and underestimation of trial times by both Crown and defence counsel. However, it is not her responsibility to allocate resources; it is the responsibility of the Provincial government.

[49] Similarly, were the Chief Justice of our Court to increase the judicial complement in Halton region we would have no place to house additional judges, nor courtrooms to have them hear additional cases.

[50] Had it not been for Ms. Roda withdrawing a three-day trial, this applicant's 11(b) motion that took one-half of a day to argue would have fallen right in the middle of that trial.

[51] Recently, my brother Justice Cooper commented on the same issues facing us in Halton in the case of R. v. Abreu, [2015] O.J. No. 231. In that case at para. 13 he states as follows:

Although the Region of Halton is a smaller jurisdiction with a lighter case-load than Peel Region, where many of the unreasonable delay cases have emanated, it is growing very rapidly because of the availability of raw land for new homes. It now has two court locations in Milton, and Burlington, after the Oakville courts were closed at the end of November, 2009. Not having one central location makes court administration more cumbersome and inefficient. It is difficult to transfer a case from a busy court list to an available court in another location and, often, defendants, witnesses, and counsel get confused and go to the wrong court. In other words, without an increase in court resources and personnel, more and more cases will likely be the subject of unreasonable delay applications. The court lists are now becoming clogged due to a growing population and the scarcity of trial time. On December 26, 2012, Milton was described as Canada's fastest growing community. [Globe and Mail -- Joe Friesen -- "Fast-rising Milton's Battle of the Bulge"]. Halton is becoming one of the lost children of the Ontario judicial system. For some reason, its obvious needs have been overlooked. Recently, new court houses have been built in Kitchener and Oshawa. In our Region we have had new police stations constructed in Burlington and Oakville, and a new hospital in Oakville. The court house in Burlington is in an aging strip mall-like location and is not at all what would one would think of as a traditional court house. The one in Milton is desperately in need of increased space and improvements. The Ontario Court of Justice in Halton deals not only with criminal issues but a huge family law caseload as well. There has has been no increase in the number of judges on our court since my appointment in 2004.

[52] In the remarks of Chief Justice Heather Smith of the Superior Court of Justice made at the opening of the Courts in Toronto on September 9, 2014, she stated:

I also advised the Attorney General about the deplorable condition of the Milton courthouse and our clear need for new facilities there. We hope that the Attorney General and the Minister for Infrastructure Ontario will recognize this pressing priority and will deliver a timely solution to the untenable situation in Milton.

[53] While I was hearing this application, one of the courtrooms in Milton was closed for a two-week period due to flooding. That involved juggling courtrooms to accommodate the flooded court's trial lists and necessitated one of our judges having to sit in an unsecure courtroom to hear cases in Milton. It also presented difficulty with Justices of the Peace opening up a second bail court to deal with prisoners in custody.

[54] During the same period, two of the fire exit doors in the Burlington courthouse used by judges were inoperable and the judges secure parking was absent a gate for a period well in excess of a month, making it not such a secure parking area. As well, the eavestroughs overhanging the judges' secure parking at the Burlington courthouse are virtually falling off the building and half of the secure parking area had to be closed off due to fears that the melting snow would fall and injure a judge or other staff member.

[55] On February 9, 2015, the Town of Halton Hills Council passed a resolution supporting Halton Region Council's resolution deploring the inadequate court facilities in Halton Region and urging the Attorney General and the Premier of Ontario to take all immediate steps to ensure that proper and adequate court infrastructure is put in place to serve Halton's existing residents and to keep pace with mandated provincial growth. I have attached that resolution to this Ruling as Appendix "A".

[56] The Charter of Rights and Freedoms is the supreme law of our country. The right to trial within a reasonable time is a right enshrined in our Constitution and, as such, is an integral, fundamental and basic right that every person facing charges in the Criminal Justice system is entitled to. As the Askov crisis of over two decades ago showed, governments that ignore adequate funding for the justice system do so at the peril of having society robbed of having trials heard on their merits.

[57] In R. v. Morin, supra, Justice Sopinka asked the following question 23 years ago in para 48:

How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? 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.

[58] Further, the Court stated at para. 52 that the quickly evolving needs of a region may be subject to some degree of allowance to adapt to those new and unexpected pressures, but this is not to be anything more than a temporary adjustment of the constitutionally-enshrined right to trial within a reasonable time. Justice Sopinka stated:

I have already stressed that a guideline is not to be treated as a fixed limitation period. It will yield to other factors. Rapidly changing conditions may place a sudden and temporary strain on resources. This was the situation in the District of Durham in which this case arose. Such changing conditions should not result in an amnesty for persons charged in that region. Rather this fact should be taken into account in applying the guideline. On the other hand, 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 this appeal, the Court of Appeal purported to apply a transitional period to accommodate the situation in Durham. While a transitional period may have been appropriate immediately after the Charter came into effect, it is not appropriate any longer. This Court so held in Askov. The use of a transitional period implies a fixed period during which unreasonable delay will be tolerated while the system adjusts to a new set of rules. It imposes a general moratorium on certain Charter rights. For this reason and quite apart from the statement in Askov that the transitional period had ended, I would not find it appropriate in this case. It appears to me undesirable to impose a moratorium on Charter rights every time a region of the country experiences unusual strain on its resources. It is preferable to simply treat this as one factor in the overall decision as to whether a particular delay is unreasonable.

[59] Explosive population growth in Halton has been present for many years and is projected to continue for many more. It is not a temporary and 'unusual strain' on the judicial resources in this region, but a persistent and ever increasing one. It seems to be recognized by local governments but not by the government that has the Constitutional obligation to allocate sufficient resources to remedy the problem.

[60] The government has failed to allocate sufficient resources in Halton for a lengthy period of time. This cannot be an oversight, but only a conscious decision.

[61] Accordingly, we cannot, 23 years after this direction from the Supreme Court of Canada, simply continue to tailor the period of permissible delay based on the lack of institutional resources.

[62] I realize that this is 2015 and not 1992. From then until now we have seen an enormous change in the law. Minimum mandatory sentences and Charter litigation have placed a burden on our system. In 1992 when Morin was decided I recall that the minimum sentence for impaired operation of a motor vehicle was a $300.00 fine and a driving prohibition of 3 months.

[63] Now simply being convicted of this offence results in a minimum $1000.00 fine, plus victim fine surcharge of 30%, and the defendant's licence is suspended for a three-month period at the time of arrest. Following a conviction, individuals are subject to a further minimum one-year driving prohibition. That said, I must commend the government for instituting the alcohol interlock system that enables defendants to plead guilty at an early stage and then be allowed to operate a motor vehicle with an alcohol interlock system. This, in my experience, has reduced the number of trials on these cases in our region and has been a positive step forward while continuing to ensure public safety.

[64] However, the increased penalties are some of the reasons that many accused are taking these matters forward to more and more complex trials. More importantly, Halton region is a region that is fundamentally different from Toronto.

[65] If a person in Toronto faces the prospect of licence suspension, it may be far less onerous than a person in Halton who may work inside or outside of the region and to whom the ability to drive a vehicle is essential to maintaining their employment and the ability to deal with the day-to-day life duties of picking up children or getting to a doctor's appointment. Public transit in Halton is far more rudimentary than it is in Toronto or other major centres and the loss of driving privileges for a resident of Halton may be far more difficult than for that of a Toronto resident who lives and works in that city.

[66] It is the legislative prerogative of the government to adjust penalties and to criminalize more behaviour, but by doing so they must recognize that this will practically result in more cost to the government. New prisons to be built, and more extensive and vigorous litigation to defend these cases, resulting in more court time utilized. As it is their prerogative to implement new laws, so is it their constitutional obligation to provide more resources to try these cases within a reasonable time.

[67] A government cannot be 'tough on crime' and expect that to meld into existing strained judicial resources without a concomitant infusion of public funds to deal with the increased litigation and complexity of litigation that inevitably will result. I am cognizant that this is a complex problem and that certain federal legislation which exerts an increased strain on the court system is required to be funded by the provincial government whose obligation it is to provide adequate court resources to accommodate the increased litigation and trial times.

[68] Even though the complexity of these politics is confusing and beyond my scope of understanding, what is not is that all governments, both Federal and Provincial, are subject to the Charter of Rights and Freedoms and a constitutionally-mandated requirement to have defendants' cases tried within a reasonable time.

(e) Other Reasons for Delay

[69] There are no other reasons for delay.

4. Prejudice to the Applicant

[70] In R. v. Godin, supra, Justice Cromwell writing for the Court states at para. 30 that:

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 the 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, at pp. 801-3.

[71] Mr. Ibrahim filed an affidavit in this application and the Crown chose to cross-examine him on it. However, in cross-examination the Crown chose to focus primarily on his statement that he had not been able to secure any employment since his job as a bartender at a country club ended in November of 2014. He stated that he could not commit to any job in which a criminal record check will be done or one where he would need a licence. He stated that in good conscience he could not accept any employment where he would have to resign if convicted.

[72] Mr. Ibrahim is 26 years of age and graduated from the University of Guelph in 2013 with a Bachelor of Commerce degree. What I took from his evidence was that he could not accept a degree-appropriate position as it would be likely he would have to resign if found guilty of the offence. As such, he has been in a state of limbo since the charges were laid and more so since the first trial was not reached.

[73] Many of the matters that he addressed in his affidavit were not touched on in cross-examination and, if they were, he was not shaken in his evidence. I found him to be an honest and credible young man and I believe what he testified to and what he put in his affidavit.

[74] He stated that he wanted the matter resolved as quickly as possible and I do not doubt him in that assertion. He privately retained a lawyer before his first court appearance and his counsel did everything possible to move the matter along expeditiously.

[75] He says that this matter has always been on his mind. He thinks about it all the time and worries about it and what effect a criminal record will have on his future employment.

[76] He says he has had great difficulty sleeping and had never suffered from this problem in the past. This problem has worsened over time and he was going to go to his doctor to get sleeping medication, but his mother was against this because she does not think that medication for sleeping is a good thing to get and worries about dependence on sleeping aids.

[77] Because of the delay in getting this matter to trial, he says that this has caused great strain in his family and he has not told his mother about the outstanding charge, although his father and other family members know.

[78] He says that he was very stressed the night before his first trial date, but he thought at least it would be resolved on the following day. He said that he attended court early that day and was very upset when he found out that his trial could not be started until the afternoon and, if it was started, it would not finish that day. He says he was shocked when he found out that a new trial date could not be obtained until March 26, 2015.

[79] He also states that he has had to incur further legal fees as a result of the trial not being able to be completed on the first trial date.

[80] He also expressed concerns about the erosion of his memory of the events that occurred over a year before.

[81] In addressing the other issues of prejudice set out in the affidavit, it is true that much of this worry and stress flows from the fact of being charged with a criminal offence. This is the inherent prejudice faced by all individuals awaiting a trial. This is prejudice that is inferred and requires no foundation in evidence. The longer the wait to trial, the more important role inferred prejudice plays.

[82] However, the delay from the time of the first trial to the second trial date would have been unexpected and, in my view, particularly difficult for the defendant. That, combined with the necessity of incurring further legal fees that no doubt would far exceed the amount of the minimum fine for a conviction for this offence, is an example of actual prejudice accruing to this accused that I accept as established on the evidence. As well, I accept that he put his job search for any appropriate jobs on hold due to the uncertainty of the potential results of this trial.

[83] In R. v. Kovacs-Tatar, supra, the Court at para. 33 referred to R. v. Silveira, [1998] O.J. No. 1622, 35 M.V.R. (3d) 30 (Gen. Div.), where Hill J. clarified at para. 53, that:

"[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial". He accepted, however, that the delay to trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines.

[84] Prejudice can be inferred from the length of the delay. As Sopinka J. stated in R. v. Morin, supra, at para. 61, "The longer the delay the more likely that such an inference will be drawn."

[85] As Zisman, J. stated in R. v. Lee, [2010] O.J. No. 1831 (Ont. C.J.) the unexpected delay of not having a trial reached has a particular significance in the analysis. At para. 40 she states:

However, there is a difference between an overall delay of about 14 months waiting for a trial and the stress and anxiety of coming to court for a trial and then being told that the trial could not proceed and that a new trial date would have to be set. The inevitable anxiety, stress and further costs are actual prejudice suffered by the applicant. The fact that the increased prejudice caused by a case not being reached for trial has the effect of shortening the constitutionally acceptable time to trial has been recognized in several cases. See for example, R. v. Egorov, supra, R. v. Peressotti, supra, R. v. Jaramillo [2002] O.J. No. 4435. As stated by the court in R. v. Morin, prejudice will often be the deciding factor in a determination of whether or not a delay was unreasonable.

[86] I have no doubt the stress and anxiety expressed by the applicant, particularly about his ability to obtain employment, arises from the reality of being charged with a criminal offence. However, I am mindful of the comments of Nordheimer J., in R. v. Osei, [2007] O.J. No. 768 at para. 32 where he states:

In the end result, it is clear to me that Mr. Osei has suffered prejudice arising from the prosecution of these charges and that that prejudice has been exacerbated from the failure of this matter to proceed expeditiously to trial.

[87] Nordheimer J., also states at para. 39 of the judgment in reference to the guidelines in R. v. Morin, supra as follows:

The guidelines were established to give some fairly clear direction to government as to what constitutes the outer limits of tolerable delay in the justice system. Governments have now had many years to adjust their priorities in order to ensure that the justice system receives sufficient resources to match their results against these guidelines. Indeed, I would note that the Supreme Court of Canada observed that, as time passed, it expected that cases would have to conform to the lower end of the guidelines. See R. v. Sharma (1992), 71 C.C.C. (3d) 184 at page 194.

[88] In my view, the time to complete this matter has resulted in actual prejudice, both financial and emotional, to Mr. Ibrahim, as well as inferred prejudice.

(f) Balancing the Societal Interest in a Trial on the Merits

[89] In balancing the societal interest in a trial on the merits I am mindful of the judgment of Justice Code in R. v. Lahiry et al, 2011 ONSC 6780, [2011] O.J. No. 5071 (Ont. Sup.Ct.) where he states at paras 89 the importance of this step in the 11(b) analysis. He states:

It must be remembered that, for over twenty-five years now, drinking and driving has been regarded as a very serious offence. Indeed, it has been authoritatively stated that "it has a far greater impact on Canadian society than any other crime", that it is "clearly the crime which causes the most significant social loss to the country", and that "every drinking driver is a potential killer". See: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 at para. 16 (S.C.C.); R. v. McVeigh (1985), 22 C.C.C. (3d) 145 at 150 (Ont. C.A.); R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 at paras. 19-23 (Ont. C.A.). Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important in drinking and driving cases.

[90] That said, this case involves no accident and a person without a previous record. While recognizing that drinking and driving is a serious offence and that society has an interest in seeing these types of charges decided on their merits, I also note that society, as well as the individual in this case, has an interest in having a properly funded and properly run justice system that will allow for the resolution of criminal cases within a reasonable time. No doubt the Supreme Court of Canada recognized this principle in the seminal decision in Morin, released 23 years ago today. In Quereshi, supra, the Ontario Court of Appeal stated that "promptly held trials increase public confidence".

D. CONCLUSION

[91] While finding that the institutional delay in this case exceeds the guidelines in Morin, it does not do so by much and I am well aware that the Morin guidelines are not a limitation period.

[92] I have found the institutional delay in this case to be 11 months and one week.

[93] I have found that this defendant has suffered actual financial and emotional prejudice that cannot be described as trivial or trifling after reviewing his affidavit and hearing him testify and be cross-examined. I find him to be an honest witness that was not shaken in cross-examination. This time to trial is unacceptable for a simple over 80 trial.

[94] I am mindful of society's right to have cases such as these decided on their merits.

[95] Taking into account all of the above, I find that the applicant has shown on a balance of probabilities that his right to trial within a reasonable time has been infringed. The charge in the information will be stayed.

[96] This judgment will be filed with the information on March 26th, 2015 and it will not be necessary for the defendant or his counsel to appear in court on that date as I will release a copy of these reasons to the Crown and defence prior to that day.

Released: March 16, 2015

Signed: Justice Stephen D. Brown