Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Jacub Dvorak

Before: Justice Peter Harris

REASONS FOR JUDGMENT on s. 11(b) Motion

Delivered: July 7, 2016

Counsel:

• Mr. T. Goddard for the Crown
• Mr. J. Rosenthal for the Defence

Harris, J.:

Introduction

[1] Jacub Dvorak was charged with "impaired operation," "excess alcohol," and "fail to remain" under the Criminal Code, on the 27th day of September, 2014. Crown counsel has conceded that there is no case to meet on the "fail to remain" charge.

[2] The Defendant/Applicant applies under section 11(b) and s. 24(1) of the Charter for a stay of proceedings on the grounds that his right to be tried within a reasonable period of time has been violated. As a result of inadequate notice of this application, counsel agreed that the s. 11(b) motion would follow the trial evidence. This application was heard on June 22, 2016 and this is my ruling.

[3] There are four issues to be determined on this application:

1. What is the neutral period of delay?
2. What delay is attributable to the defence?
3. What is the institutional / Crown delay in this case?
4. After balancing all the delay considerations, was the institutional / Crown delay unreasonable and did it constitute a breach of the Defendant's s. 11(b) right under the Charter?

The Evidence

[4] On September 27, 2014 at about 5:30 pm, there was a minor rear-end collision in bumper-to-bumper traffic on the 401 Highway westbound at Dufferin Street in Toronto. Mr. Dvorak was driving the car that collided with the vehicle in front and after exchanging documents with the other driver, he waited at the scene for the police for 45 minutes to one hour, then left his documents with the other driver and drove to his home address in Toronto. As a result of the collision and some indicia of impairment at the scene and upon being stopped near his residence (eyes were bloodshot and there was a heavy odour of alcohol on his breath) the arresting officer, P.C. Chan, advised him he was under arrest for impaired driving. Mr. Dvorak was then transported to a local breath testing facility where he provided breath samples that were analyzed resulting in blood alcohol readings of over 80 mgs. percent. On March 24, 2016, I ruled that the arresting officer had reasonable grounds to arrest for impaired operation and that there had been no violation of the Defendant's section 8, 9 Charter rights.

Case History

[5] The defendant in this case was arrested September 27, 2014 and the information was sworn October 17, 2014. On October 7, 2014 defence counsel wrote to the Crown's office at Old City Hall, Toronto requesting disclosure, including "the breath room video" and the "cell video." On the first appearance, October 27, 2014, disclosure was provided to counsel and the case was adjourned for a Crown pre-trial. That same day, October 27, 2014, defence counsel advised the Crown in writing that the booking and breath room video that was received was blank—"there is nothing on it"—and requested a replacement video DVD. While awaiting this disclosure, new counsel, Mr. Rosenthal, took carriage of the matter as the previous counsel had been appointed to the Bench. On November 27, 2014, the defence wrote to the Crown's office and made another "formal request for full and complete disclosure," the breath and booking video not having been received to date. On November 28, 2014, Ms. Linda Effah, Case Management Coordinator for the Crown's office replied in writing, stating that the breath/booking video had been provided in court to counsel on October 27, 2014 and there was a "fee of $25 for a second copy of disclosure" and an application was required to be "filled out in the Crown's office."

[6] On November 28, 2014 defence counsel wrote to Ms. Effah, enclosing the earlier correspondence (indicating that the video DVD was blank) and requested the disclosure for the next court date December 1, 2014. On December 1, counsel attended court for the defendant and was advised that the DVD of the booking/breath video that the Crown had received did not work either and that the Crown's office had re-ordered it. The case was then adjourned to December 22 for disclosure. On December 2, Mr. Rosenthal wrote to the Crown's office and advised that the police station videos had not been received and that, "My client is anxious to move this matter along and I'm hopeful disclosure will be available before the next court date." On December 22, 2014, counsel attended court for the defendant and was advised by Crown counsel (the same Crown that appeared on the matter December 1, 2014) that "the video does not work" that the Crown's office had received and that the Crown seized of the matter had "ordered a second copy"... Crown counsel then requested a further adjournment: "So I'd suggest a brief remand for that purpose. Maybe three weeks or so? The 12th or 13th of January?" The case was then adjourned to January 12, 2015. On January 12, 2015, in court, Crown counsel advised that the Crown seized of the matter re-ordered the video "at the end of December. We don't seem to have it yet. So my suggestion would be if we could put the matter over briefly. I'll have—maybe two, three weeks or so." The case was then adjourned to January 26, 2015.

[7] On January 13, 2015, Mr. Rosenthal wrote to the Crown stating that a pre-trial cannot be conducted without these materials. "Unfortunately the failure to provide this important disclosure is freezing this case in its tracks." "No meaningful pre-trial can be conducted without these materials." I am hopeful the outstanding disclosure can be provided before the next court date." On January 26, 2015, some disclosure was provided and the case was adjourned to February 9, 2015. On February 6, 2015, Mr. Rosenthal again wrote to the Crown Attorney's Office advising that the new DVD provided "does not contain any footage of my client." "There is nothing on the DVD." Once again he reiterates his position that "the failure to provide this disclosure is freezing this case in its tracks." On the February 9, 2015 court appearance, counsel for the defendant states that the new DVD received "about three weeks past" also doesn't work." "There is nothing on it." Crown counsel states "Crown is proposing a couple of weeks." On the return date February 23rd 2015, the breath and booking video is turned over to the defence and the matter is adjourned to March 16, to review the disclosure and schedule a Crown pre-trial. On March 16, 2015, counsel for the defendant states that a pre-trial was held with the Crown on March 10 and counsel requests that the matter be adjourned one week to March 23, 2015 to obtain instructions. On March 23, the case was remanded further week "to receive instructions from his client."

[8] On March 30, 2015 the defence requested a further week to allow Mr. Dvorak to "consider his options." On April 7, 2015 the defence requested a further week to obtain instructions. On April 14, 2015 the matter is adjourned to April 20 so defence counsel can speak to the matter in person. On April 20, Mr. Rosenthal attends court for the defendant and requests that the case be adjourned to April 21 to set a trial date. On April 21, the case was adjourned for a Crown pre-trial May 11. On May 11 the case was adjourned to set a judicial pre-trial. On May 19 the case was remanded to May 29 for a judicial pre-trial. On May 29, 2015, two days were set aside for trial, March 9th and 10th, 2016. Crown counsel stated that: "it was the first date offered by the trial coordinator." Defence counsel indicated that Mr. Rosenthal was available for trial on the following dates: June 3, 4; July 21, 23; August 26, 27; September 16, 17, 21, 22, 28; October 13, 16, 21, 22, 23, 26; November 2, 3, 4, 5, 6, 30; December 1, 8, 9, 10, 11, 14, 15, 16, 18, 22, 23; January 18, 19, 21, 22; February 1, 2, 3, 4, 5, 8, 9, 15, 16, 19, 22, 23, 24, 29.

[9] I propose to conduct an attribution analysis of the specific periods that constitute the total delay period in accordance with R. v. Schertzer 2011 ONSC 3046.

Analysis

[10] Section 11(b) of the Charter guarantees an accused person's right to trial without unreasonable delay. The five purposes of this right were delineated in R. v. Morin, [1992] 1 S.C.R. 771:

The primary purpose of s. 11(b) is the protection of the individual rights of the accused. 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 (1) 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…. (2) There is, as well, a societal interest in law enforcement…. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.

[11] On a s. 11(b) application the trial court will consider the Four Morin Factors and the Five Causes of delay. The four factors to be assessed are:

1. The overall length of the delay
2. Waiver of any individual time periods
3. The reasons for the various periods of delay
4. Prejudice to the interests protected by this particular right

Determining the reasons for delay can be the most important and also the most challenging of the four factors. This factor simply requires an objective analysis of each period of delay in order to determine its cause. The five traditional causes of trial delay are:

1. The inherent time requirements of the case
2. Any actions of the defence
3. Any actions of the Crown
4. Limits on institutional resources
5. Other miscellaneous causes, such as judicial delays

"Careful analysis of the transcripts of each date where the proceedings were delayed is critically important to this factor [determining the cause of delay]. Having objectively determined the cause of each period of delay, based on the transcripts and any other relevant evidence, this factor then assigns a weight to that period." (See R. v. Lahiry, 2011 ONSC 6780). Ascertaining the reasons for trial delay does not involve making findings of fault, as there can be good or necessary reasons for delay.

[12] A section 11(b) analysis requires a judicial "balancing" of the length of the delay as assessed in light of the identified factors and the interests protected by s. 11(b). "What is important is how those factors interact and what weight is to be accorded to each," according to McLachlin J. in her concurring opinion in Morin, supra, at p. 30. Cromwell J. in R. v. Godin, 2009 SCC 26, described the analysis to be undertaken:

Whether delay has been unreasonable is assessed by looking at the [total] 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.

[13] The defendant bears the burden of establishing a breach of s. 11(b) under the Charter. As has often been said, while there is no fixed limitation or mathematical formula by which to measure the reasonableness of pre-trial delay some assistance can be derived from the administrative guidelines articulated in Morin, supra. The permissible institutional or systemic delay in the case of a provincial court trial is eight to ten months. As noted in R. v. G.(C.R.), 77 O.R.(3d) 308, at 315, the delay that may be constitutionally acceptable may contract or expand depending on a variety of factors, particularly the prejudice experienced by the defendant: "Further, the amount of delay that was tolerable in this case must be at the lower end of the range given the prejudice to the respondent because of the very strict bail conditions:" R. v. G.(C.R.), para. 27.

[14] According to the Court of Appeal in R. v. Thomson, 2009 ONCA 771, paras. 9 and 10, a stay of proceedings is the only appropriate remedy once the s. 11(b) threshold of "unreasonable delay" is crossed. The test for unreasonable delay is based on 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 (inherent time requirements, accused's actions, Crown's actions, limits on institutional resources), the prejudice to the accused and finally by balancing the interests that s. 11(b) seeks to protect: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 para 18. Accordingly, the issues under consideration will be dealt with in the above-noted order.

Length of the Delay

[15] As noted above, the total delay to trial is approximately 17 months—from October 17th, 2014 when the Information was sworn to the trial date March 9, 2016. The overall period of delay is calculated from the date the Information was sworn until the scheduled trial date. (See: R. v. Kalanj, (1989) 48 C.C.C. (3d) 459). A delay of this magnitude calls for an inquiry.

Waiver of Time Periods

[16] There were no express waivers by the defence of any time period based on the analysis that follows. After the initial intake period, the defence position on the adjournments for preliminary activities in this case took the form of:

1. Acquiescence in delay to await crucial disclosure
2. Requests for time to obtain instructions
3. Requests for delays for Crown and Judicial pre-trials

According to s. 11(b) jurisprudence, the delay for necessary pre-trials is inherently neutral as these delays generally benefit both the Crown and defence. As will be noted below, delays awaiting crucial disclosure in order to make meaningful decisions in the conduct of a proceeding do not constitute waivers of delay by the defence. Finally, the approximately 5 weeks of delays when the defence adjourned the case five times to obtain instructions (March 16, 2015 to April 21, 2015) are best attributed to the neutral category, in my view. These are the types of preparatory discussions that usually precede the setting of a trial date when full disclosure is received early in the proceeding. Had the crucial breath and booking video disclosure been made available at the first appearance, these few weeks of defence instructions and planning would have folded into the typical 6 week neutral period for drinking/driving cases in the Ontario Court. [Appellate jurisprudence has established that a reasonable neutral period of time for such "intake" matters in this type of case should be about 6 weeks. See, for example: R. v. Morin, 71 C.C.C. (3d) 1].

[17] The video disclosure was available on the date of arrest September 27, 2014, and only required copying. The fact that regular neutral-period discussions between the defendant and his counsel took place some five to six months after arrest does not somehow convert these delays into waivers on the part of the defence. They are simply a function of delayed disclosure (the breath/booking video) that was not received until February 23, 2015, and that prevented any meaningful discourse with counsel until the case was fully understood. In any event, the defence adjourned the case week by week during the five weeks in question, leaving the clear impression that time was of the essence and that pre-trial meetings with the Crown were being conducted during that period. This is inherently neutral delay by any measure.

Reasons for the Delay

(a) Inherent time requirements of the case and neutral periods

[18] There are two neutral or inherent delay attributions required in this case:

1. The neutral intake period
2. The delay required for counsel availability and case preparation once the date for trial was set

(I) The Neutral Intake Period

[19] One central issue in this case is the characterization of the approximately 7.5 months of delay from the date the information was sworn (October 17th, 2014) to May 29th, 2015 when all the preliminary activities had taken place and the case was set down for trial. Both counsel agree that the period that should be considered neutral intake in this case is the period from October 17th, 2014, the date the information was sworn to December 1st, 2014. The template for a reasonable neutral period for all intake functions for "drinking and driving offences" is approximately six weeks according to R. v. Morin, supra. In terms of the nature and complexity of the case, one could readily conclude that an impaired and "over 80" case where there was one arresting officer, a civilian witness and a breath and booking DVD—would be the most straightforward and uncomplicated example of these type of charges, the disclosure only a matter of copying statements and a DVD. As Sopinka J. observed in Morin: "Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay." This being the case, I will assume for these purposes that a reasonable neutral period for all intake functions would be the period encompassing two remands from October 17th to December 1st, 2014, a time frame of 6 weeks during which all of the usual intake activities had been completed, the only outstanding issue being the booking/breath room DVD. In fact by October 7th, prior to first appearance, defence counsel had been retained and had requested disclosure, including "the breath room video." Accordingly, I agree with counsel that a reasonable neutral period for the intake functions in this case is the period from October 17th to December 1st, 2014.

(II) Counsel Readiness for Trial

[20] It is noteworthy that recent case authorities do not accept that the period between the date the trial is set and the trial date is entirely institutional delay. As Simmons J.A. in R. v. Tran 2012 ONCA 18 observed:

[32] Second, 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. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. See Morin, at pp. 791-2, 794-5, 805-806. See also Lahiry, at paras. 25-37, citing Morin, R. v. Sharma, [1992] 1 S.C.R. 814, R. v. M.(N.N.), (2006), 209 C.C.C. (3d) 436, R. v. Schertzer 2009 ONCA 742, 255 O.A.C, R. v. Meisner (2003), 57 W.C.B. (2d) 477, and R. v. Khan, 2011 ONCA 173, 277 O.A.C. 165.

[21] The question under consideration is: what is the appropriate attribution of delay in respect to counsel availability and trial preparation? Systemic delay runs from the time that all parties are ready for trial. Case authorities are clear that "Institutional delay only begins once all parties are reasonably ready for trial and the Court cannot accommodate them": R. v. Lahiry at 34; R. v. Tran at 32; R. v. Stelle at 19. "The delay that counsel needs, for entirely beneficial reasons, in order to prepare the case for trial and to accommodate it in a busy practitioner's calendar is inherently part of the trial process. It is good and necessary delay that would have occurred in any event, even if the Court had earlier available dates. It is a fiction to characterize this kind of useful delay as unwarranted or unreasonable or prejudicial:" R. v. Lahiry, supra. Trial readiness delay is therefore composed of two constituent elements—delay for preparation and counsel availability.

[22] Often counsel state on the record their availability for trial and the time needed to prepare for trial and the court may well decide to make a case-specific determination of inherent time attributable to trial readiness. In fact in the case at bar, the defence indicated an availability for trial starting June 3rd and 4th some 5 days after the trial dates were set on May 29, 2015. Crown counsel argues that 30 days should be the trial readiness neutral period on account of the Charter applications being planned by the defence and the 30 day notice period for Charter motions under the Ontario Rules of Court. In cases where the Crown and defence positions on trial readiness are irreconcilable, the Court must strike a reasonable balance between the conflicting positions.

[23] First, Sopinka J. [in Morin] determined that in a drinking/driving case, about a month should be allocated for counsel to prepare and make themselves available for trial, after setting the trial date. Second, in R. v. Konstantakos, 2014 ONCA 21, the Court of Appeal held—in regard to a matter of some complexity involving a 'grow operation' where there was no stipulation on the record as to trial preparation time required—that a 30 day period would be a reasonable allocation: (at para. 11):

Allowing a minimal amount of time to prepare for a trial of moderate complexity, including the preparation and service of an application under s. 8 of the Charter, it is reasonable to deduct 30 days as inherent delay.

[24] Third, in striking a reasonable balance between Crown and defence in matters of less complexity such as the case at bar, some courts have held that a period of 3 weeks where there is a Charter issue to be litigated, would represent a reasonable neutral period for trial readiness purposes: see R. v. Duszak, [2013] O.J. No. 5015. Having regard to the Judicial Pre-trial form filed in the Respondent's Application Record, I note that there were multiple Charter issues contemplated for trial, a section 8, 9 issue (reasonable grounds to arrest), a section 7 issue (destroyed disclosure) and a s. 10(b) application. In view of the additional Charter issues the Crown would be required to respond to under the Rules of Court, I believe a reasonable balancing of all issues and interests would result in an allocation of one month or 30 days to the trial readiness category of neutral or inherent delay. I note that in a similar case of drinking/driving, R. v. Ritchie 2016 ONSC 1443, the Court held on appeal that: "In these circumstances the trial judge did not err in apportioning one month for preparation." Consequently, I will attribute 30 days prior to trial as neutrally weighted delay to be deducted from institutional delay following the date the case was set for trial.

(b) Actions of the Accused

[25] There was no waiver of trial delay on the part of the accused. The trial readiness delay as noted above is recorded as neutral in the calculation of overall delay in accordance with R. v. Lahiry, supra.

(c) Actions of the Crown

(I) Delay Caused by Tardiness in Providing the DVD Disclosure

[26] The Crown and defence both agree that after the neutral intake period that consists of the period October 17th to December 1st, 2014, the further delay of 3.5 months from December 1st, 2014 to March 16, 2015 is attributable to the Crown for failing to provide a crucial piece of disclosure (the booking/breath room DVD). The disclosure was eventually provided to defence on February 23rd, 2015, which necessarily required a further period of three weeks to review it. Consequently, the Crown delay attribution should properly extend to March 16, 2015. The first question to be resolved is whether the defendant was entitled to forego the setting of a trial date while awaiting the receipt of the DVD that recorded crucial elements of the impaired and "over 80 mgs." charges at the police division. It is important to note that the case authorities on this issue do not require that in every case counsel must set the trial date immediately following the typical neutral intake period for a particular type of charge. In three recent decisions, the Ontario Court of Appeal has emphasized the point that disclosure need not be complete before dates are set for trial or preliminary hearing. See R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91, R. v. M.(N.N.) (2006), 209 C.C.C. (3d) 436, R. v. Schertzer 2009 ONCA 742. In R. v. M.(N.N.) Jurianz J.A. held that:

"Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial."

[27] However, in R. v. Lahiry 2011 ONSC 6780, Code J. in interpreting these leading decisions on the subject, observed that: (at para. 114)

It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages. This is simply common sense.

[28] There are at least two binding authorities that conclude that police video recordings represent crucial disclosure in these types of proceedings. If a picture is worth a thousand words, a moving picture has to be worth so much more in terms of critical decisions about whether the matter will resolve or proceed to trial. In a case where a booking and breath room DVD of an alleged impaired driver and his or her experience with the Intoxilyzer is readily available and the only other record of what transpired is an after-the-fact notation on a breath analysis certificate, it would be, in my view, tantamount to professional negligence to make major decisions such as whether to proceed to trial prior to reviewing this crucial video recording.

[29] The binding authorities are quite pointed in their references to late DVD disclosure. In R. v. Farry, [2010] O.J. No. 1977, Trotter J. offered the following commentary:

[11] Before addressing the issue of the appropriate order, I wish to point out that I do share the motion judge's view about the delay involved in the disclosure of the DVD. This type of delay, which is caused by the police, is a common occurrence in the Ontario Court of Justice. In our digital world, in which data is so easily shared, there is no good reason why a copy cannot be produced in a very short period of time. In this case, it should have been available by the first appearance date (which was over a month following the arrest). Meaningless appearances are routinely made in the Ontario Court of Justice while everyone waits for the police to make copies of what transpired in the breathalyzer room. These needless appearances clog the already busy courtrooms in this province. This is unacceptable.

[12] While I recognize that it is not always appropriate to wait for every last piece of disclosure to be made before setting a trial date, a recording of what takes place in the breathalyzer room can be of great value, to both the Crown and the defence. When this type of evidence is available for viewing, informed decisions may be made about whether the case will proceed to a trial on the merits, or whether it might be resolved by way of a plea or withdrawal. It is important that this evidence be available at the earliest opportunity.

[13] Therefore, while I have decided that the motion judge's reasons were insufficient, he was right to isolate this aspect of the case for consideration. In my view, delay caused for these reasons should be afforded greater weight in the s. 11(b) calculus: see Regina v. Brown, [2005] O.J. No. 2395 (C.J.), at para. 52.

[30] Additionally, Wilson J. in delivering the following reasons in a summary conviction appeal in R. v. Godfrey [2005] O.J. No. 2597 accepted the trial judges reasons in regard to delayed police video disclosure:

5 The learned trial judge reasons are short and are as follows:

• This case raises what appears to be a recurrent problem in this jurisdiction and other jurisdictions; namely, that uncomplicated cases, and counsel are agreed that this is an uncomplicated case, video disclosure is not routinely provided at or very near to the accused's first appearance in court following a charge being laid. Indeed, it appears in this jurisdiction that the Crown insists on receiving a written request for video disclosure before a videotape is made available and disclosed. I do not understand why.

• I reiterate this is an uncomplicated case and there seems to be no good reason why the form of the disclosure should make the slightest difference. This disclosure should have been provided on or near December 28th, 2001, the accused's first date for appearance in court, and if not on December 28th, 2001, very close to it. If that disclosure had been provided properly, then I am prepared to make the inference that counsel would have been in a position to set a trial date on February 21st when he was retained.

• That being the case, this matter has taken far too long to get to the first trial date. The accused's Section 11(b) rights have been irreparably interfered with and, therefore, in my judgment, a stay of proceeding should issue. I want to reiterate on the record this is an apparently uncomplicated case. There may be cases where, for very good reason, video disclosure is not available on or near the accused's first appearance in court, but this does not appear to be one of those cases and those cases should be the exception rather than the norm.

6 The charges against the accused are stayed.

[31] As well, there is a significant body of case law on the same point from the Ontario Court of Justice. In R. v. Maxwell [2006] O.J. No. 4604, Lipson J. held:

21 It seems to me that if this issue was ever controversial, the time has long passed when it should continue to be so. There will be exceptionally few cases where the booking-breath room DVD does not constitute essential disclosure. In most contested drinking and driving cases, either Crown or defence plays the DVD during the trial. Defence counsel and their clients require timely disclosure of the DVD in order to make informed choices as to how best to proceed. What is shown on the DVD can have a crucial influence on the choice of plea or trial strategy. What is displayed on the DVD is always relevant to a myriad of Charter and non-Charter issues. Another important aspect to be considered is that of trial management. One of the primary functions of the judicial pre-trial is to properly assess the time requirements of any given case. The pre-trial judge and counsel factor the playing of the DVD into this estimate. Defence and Crown need to review the DVD in order to participate meaningfully in a judicial pre-trial.

[32] In 2002, in R. v. Wemer (2002) 56 W.C.B. (2d) 109, I made the following comments in a case that was once again unreasonably delayed by disclosure of a video recording in a drinking and driving case. The delay was approximately 4 months for the sole purpose of copying and delivering the video recording:

It is clear to me that what is transpiring in this jurisdiction is that the police seem to be attempting to save money by not producing the videotape, at an early moment, in the hope that somebody might enter a guilty plea, and therefore, not have to provide it. I don't frankly know what expense is involved with producing the videotape, but it seems to me that the police can't have it both ways. They can't attempt to save money and at the same time argue they're not responsible for delay when it takes some extensive period of time, in this jurisdiction, to obtain a videotape of the events in the police station ... [this] is significant evidence for both the Crown and defence ... It is key evidence and, in my view, should be provided at the earliest opportunity ... when delay is caused by the lack of the provision of a videotape, then that's a responsibility that inures to the Crown and has been a problem in this jurisdiction for many years ...

[33] In a striking example of "plus ça change, plus c'est la même chose," I released a judgment in 2013 in which, the drinking/driving charge was stayed for reasons primarily related to interminable delays in providing disclosure of the breath room DVD. In R. v. Dummett, 2013 ONCJ 309, I reached the following conclusions (at para. 28):

[28] I conclude that this perennial problem of delayed DVD disclosure in drinking and driving cases has now become a systemic feature of Ontario Court litigation and in the instant case is crucial evidence that in principle should be provided before a trial date is set and accordingly, represents delay that should be attributed to the Crown. The issue seems to have become unaccountably impervious to remediation.

[34] For other s. 11(b) cases in which video disclosure has contributed to the trial delay see also: R. v. Meier, [1998] O.J. No. 3498; R. v. White [2003] O.J. No. 2554; R. v. Rhambarose [2009] O.J. No. 6356; R. v. Kenworthy [2010] O.J. No. 2409; R. v. Tefera, [2010] O.J. No. 5016; R. v. Proo 2011 ONCJ 379, [2011] O.J. No. 3343; R. v. Watt, [2014] O.J. No. 5124.

[35] There is little question that there has become a seemingly irremediable systemic failure to provide timely DVD disclosure in the Toronto area in these cases.

[36] As noted above, there has been a period of disclosure delay in this case of 3.5 months that is properly attributable to the Crown. What is most concerning about this disclosure delay in the instant case is that six letters were sent by the defence to the Crown dating from October 7, 2014 to February 6, 2015 latterly complaining that "the failure to provide this disclosure is freezing this case in its tracks." The Crown not only appears to be powerless to remedy this Stinchcombe deficiency for almost 4 months but somehow carelessly compounds the error at one point by demanding a fee for 'replacement disclosure.' (See Crown's letter of November 28, 2014 from the Case Management Coordinator).

[37] The key consideration in allocating this disclosure delay to the Crown, is the materiality of the breath/booking DVD and its forensic significance in the defence of the impaired and "over 80" charges. First, this is not a case of a defence strategy that was based on needless or trivial disclosure requests designed to create delay. The defence was forthright, unwavering and relentless in their pursuit of this disclosure. The situation became more pressing as the delay continued: "No meaningful pre-trial can be conducted without these materials." "The failure to provide this disclosure is freezing this case in its tracks." It is clear this material was fundamental to whether there would be a plea or trial. Second, the Crown never offered any explanation for the delayed disclosure… as if they were helpless bystanders. (On the February 9, 2015 court appearance counsel for the defendant states that the new DVD received "about three weeks past" also doesn't work." "There is nothing on it." Crown counsel responds by saying disinterestedly: "Crown is proposing a couple of weeks.") Crown counsel seems to be rather indifferent to the pace of the litigation, never recognizing that the needed disclosure had been missing for months or taking control and promising to remedy the situation in short order. The relaxed attitude of the Crown in my view contributed to the delay.

(d) Limits on Institutional Resources

[38] The limits on institutional resources are well known in the Ontario Court of Justice, where even today, some twenty-six years after the first Supreme Court of Canada decision on s.11(b) of the Charter (R. v. Askov, [1990] 2 S.C.R. 1199) trial dates are routinely being set on dates in the future which are within and often at the upper end of the guidelines as outlined in that decision—and are potentially in constitutional jeopardy should the cases sustain any further delay. The systemic delay in this case is the period from May 29, 2015 to the trial date of March 9, 2016 [9 months, 11 days] less a reasonable period of one month for trial preparation. [The institutional delay is therefore 8 months, 11 days]. This is a period that is over the Askov/Morin guidelines and by itself, while not ideal, would still likely represent a constitutionally acceptable period of trial delay given the level of prejudice experienced. Unfortunately, the actions of the Crown exacerbated the level of systemic trial delay in this case considerably.

(e) Other reasons for the delay

[39] All delay in this case has been covered in my analysis under other headings. Counsel has not argued for the attribution of delay to any other factor in this case.

[40] The total delay attributable to the Crown directly [3.5 months disclosure delay] and pursuant to its responsibility for systemic or institutional delay [8 months 11 days] is a total of 11 months, 26 days or very close to 12 months.

Prejudice

[41] The Defendant provided evidence on this issue in the form of an affidavit and he was cross-examined by Crown Counsel. He is employed as a home renovator and contractor and he and his common law spouse have two children, ages 6 and 9. I accept his evidence that he has trouble sleeping and has experienced stress and anxiety with these charges "outstanding for such a long period of time." He stated he was not able to accept employment in St. Catherines because of his uncertainty about losing his driver's licence and was concerned about how he would be able to support and assist his family without a licence. I recognize that to some degree his anxiety has resulted from the charges being laid but I also do not doubt that the stress and anxiety he has experienced is compounded by the long delays to a trial date. I don't believe there was any prejudice to his fair trial rights or his ability to make full answer and defence.

[42] I have concluded that the ongoing stress and anxiety experienced by Mr. Dvorak and his family should be taken into consideration. I will also infer that he had increased legal fees as a result of the additional unnecessary delay and court attendances to obtain missing disclosure. I do not doubt that his employment opportunities have diminished as a result of the delay and his reputation as a self-employed contractor has suffered. On the evidence I have determined that there has been some specific prejudice that was neither minimal nor substantial prejudice: R. v. Ritchie, supra. In the end result, I am satisfied that the defendant has suffered a modest degree of actual prejudice to his security interests as a result of trial delay in terms of increasing stress, anxiety and negative work productivity impacts. In addition, the financial costs of additional court appearances attended by counsel, represents an additional prejudicial impact. As well, a relatively modest degree of inherent prejudice can be inferred in respect to this defendant as a result of the general stigma and the tribulations of nearly 12 months of Crown and systemic delay in having these pending criminal accusations concluded. The appropriate characterization of prejudice in this case, in terms of actual and inferred prejudice, is "modest."

Balancing

[43] The final consideration involves a balancing of the problems that the delay has caused the Applicant and society's interests in having charges concluded on the merits. In accordance with R. v. Morin (1992), 71 C.C.C. (3d) 1, "the decision as to whether s. 11(b) has been infringed is not to be made on the basis of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay." It is well accepted that society's interests in a trial on the merits increases as the seriousness of the charges increases. It must be acknowledged that the charges before the court are relatively serious as all criminal charges are, but even more so in respect to the widely recognized carnage on our streets and highways caused by substance-abusing drivers. The exercise of balancing competing interests is described by McLachlan J. in concurring reasons in R. v. Morin, supra:

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

[44] As noted above, the total delay directly attributable to the Crown or pursuant to its overall responsibility for systemic delay is just short of 12 months. This trial delay is considerably above the Askov/Morin guidelines of eight to ten months by nearly two months. This finding does not in itself result in a stay because deviations of several months in either direction can be justified by the presence or absence of prejudice: R. v. G.(C.R.), [2005] O.J. No. 3764; R. v. Ritchie, supra. As Durno J. stated in R. v. Ritchie, a case involving prejudice of a similar nature to the case at bar:

I cannot say that there is no prejudice so as to justify a longer period of reasonable delay. There is some unchallenged specific prejudice that supports the use of the lower end of the Morin guidelines.

[45] Each case is fact-specific and the nearly twelve months of delay may not have been constitutionally unacceptable in another case. However, here, with some specific prejudice, the institutional and Crown delay of almost four months over the top of the applicable guideline, the fact that the defendant was always pressing for disclosure in order to move the case along, and most significantly, the intractable and systemic nature of the Crown disclosure delay, which necessarily must weigh more heavily against the Crown in terms of its responsibility for systemic delay, I have concluded that the delay is unreasonable and well outside constitutionally acceptable levels.

[46] Further, much has been said in s. 11(b) jurisprudence about the very strong societal interest in trying serious drinking and driving charges involving so much public harm, on the merits. Nevertheless, it is now well recognized that in cases where the Crown is responsible for a significant proportion of the trial delay, this cause of delay weighs more heavily against the State in the balancing exercise. (See R. v. McNeilly [2005] O.J. No. 1438; R. v. Brown [2005] O.J. No. 2395). This is of even greater significance given the two decade litany of systemic failures in producing timely video recordings, an appalling state of affairs for which the Crown has no answers. I reiterate the characterization of this delay I adopted in 2013: "It seems that the police video recording service has become perversely oblivious to trial delay concerns and judicial pronouncements on this subject and is [seemingly]… now beyond the reach of any supervisory authority: R. v. Dummett, supra. In balancing all the considerations, the amount of the delay, the reasons for the delay, the prejudice to the defendant arising from the delay, I am satisfied on a balance of probabilities that the defendant has established that his interests and society's interest in a prompt trial outweighs the interests of society in a trial on the merits in this case for the above-noted reasons.

[47] Accordingly, I have concluded that the defendant's section 11(b) rights have been breached and the charges before the Court will therefore be stayed.

P. Harris J.

June 7, 2016.