Court File and Parties

COURT FILE NO.: CR-15-49 DATE: 20160705

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Charon Kerr, for the Appellant Appellant

- and -

HANY IBRAHIM Paul Burstein, for the Respondent Respondent

HEARD: April 20, 2016, at Milton

REASONS FOR JUDGMENT

[On appeal from the judgment of Stephen D. Brown J. dated March 16, 2015]

F. Dawson J.

[1] The Crown appeals from the decision of Justice Stephen D. Brown staying an “over 80” charge against the respondent on the basis that the respondent’s s. 11(b) right to trial within a reasonable time had been violated.

Procedural Overview

[2] Everyone agrees that this case was a straightforward over 80 case with an uncomplicated Charter Application which required a one day trial. The trial judge found that the investigation was completed on the evening of the alleged offence. No issue is taken with that finding. The only witnesses required by the Crown were police officers. The alleged offence occurred on February 8, 2014. The respondent retained counsel prior to the first court date. The intake period proceeded expeditiously and on March 18, 2014 the case was set for a one day trial on October 9, 2014.

[3] Upon arriving in court on October 9, 2014 the respondent and his counsel learned that there were two other cases set for trial in the same courtroom. The Crown elected to proceed with one of the other cases first as it was up for trial for the second time. As a result, the appellant’s case was not reached until approximately 2:30 in the afternoon.

[4] The respondent’s trial could not be completed in the time remaining that day. Crown and defence counsel advised the presiding judge, Justice LeDressay, that they had spoken to the trial co-ordinator. They were in agreement that the respondent’s trial could be dealt with just as expeditiously by adjourning it to a new trial date as by commencing the trial before Justice LeDressay and continuing it before him on another day. Counsel for the respondent made it clear that the respondent was not waiving his s. 11(b) Charter rights.

[5] The matter was adjourned to March 26, 2015 for trial. The respondent moved to stay the proceedings based on a s. 11(b) violation. That application was heard by Justice Brown on March 3, 2015. His judgment staying the proceedings was released on March 16, 2015.

The Trial Judge’s Reasons

[6] The trial judge provided carefully considered and articulate reasons for his decision. After setting out the factual background in his introduction he outlined the steps of analysis on s. 11(b) applications described in R. v. Morin, [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25. He then quoted from many of the leading appellate authorities demonstrating that he had a firm grip on the proper overall approach to s. 11(b) applications.

[7] The trial judge then followed the Morin framework for analysis. He noted that the overall length of the delay from the swearing of the information to the conclusion of the trial would be 13 months and 16 days, a length of time he concluded warranted scrutiny pursuant to s. 11(b). He found that the respondent and his counsel were interested in proceeding expeditiously, that both parties accurately estimated the time required for trial at one day and that there were no waivers of any time periods. He commented that a straightforward drinking and driving case of this type should be able to be completed within the Morin guideline for institutional delay of eight to ten months in the provincial courts.

[8] The trial judge continued to examine the reasons for delay by discussing various aspects of the case under the other rubrics set out in Morin. Through this process he made findings and identified periods of delay which he considered to be neutral time, inherent time or time attributable to the defence. These consisted of one month and ten days of neutral intake time (February 8, 2014 to March 18, 2014), six days in total for inherent preparation time and a three week period following the first trial date when defence counsel indicated he was not available for trial (October 9, 2014 to October 30, 2014). Although this last period was defence-related delay the trial judge considered it to be neutral time in the circumstances. The trial judge deducted these periods from the total delay and concluded that the institutional delay was 11 months and one week. It therefore exceeded the Morin guidelines for trials in the provincial courts.

[9] Under the rubric of “limits on institutional resources” the trial judge referred to his previous judgment in R. v. Papandrea, 2012 ONCJ 651, [2012] O.J. No. 4880 (O.C.J.). In Papandrea he described the lack of institutional resources in Halton Region as of 2012. He also referred to R. v. Abreu, [2015] O.J. No. 231 (O.C.J.), where Justice A. Cooper made similar comments about the lack of institutional resources in Halton Region. In addition, the trial judge made reference to comments by Chief Justice Heather Smith of the Superior Court of Justice on September 9, 2014 at the Opening of the Courts ceremony in Toronto and to a resolution of the Town of Halton Hills Council, both commenting on the inadequacy of court facilities in the region. The trial judge added many of his own comments and observations about the inadequacy of court facilities, the exploding population of the region and the lack of a sufficient judicial complement to deal with the growing demands on the provincial courts. He pointed out that even if more judges were added to the complement there were no courtrooms available where they could conduct cases.

[10] On the issue of prejudice the trial judge found the respondent, who filed an affidavit and was cross-examined on it, to be a credible witness. He accepted the respondent’s evidence that he had suffered actual prejudice. The trial judge also inferred prejudice associated with the delay in the proceedings arising from the failure to conduct the trial on the date originally scheduled. The trial judge was careful to distinguish between prejudice arising from the fact the respondent had been charged and prejudice arising from the delay. He took only the latter into account.

[11] At the end of his judgment the trial judge demonstrated, as he had done at the outset, that his ultimate decision as to whether there had been unreasonable delay was not simply a matter of mathematics. He expressed his awareness of the need to balance societal interests in a trial on the merits together with the interests of the accused and all of the interests which s. 11(b) seeks to protect. He clearly took into account the seriousness of drinking and driving offences as well as society’s interest in a justice system which resolves criminal charges within a reasonable period of time.

[12] Acknowledging that the institutional delay did not exceed the Morin guidelines by much, the trial judge concluded that, in all the circumstances, s. 11(b) of the Charter had been violated. His finding of prejudice was a significant factor in his decision. Accordingly, he issued a stay of proceedings.

The Position of the Parties

The Appellant’s Position

[13] The appellant’s submissions fall into two broad categories. First, the appellant contends that the trial judge made a number of specific errors in characterizing the nature and determining the length of various periods of delay. The appellant submits that these errors led to inadequate deductions from the overall delay for neutral and inherent time resulting in an erroneously inflated calculation of institutional delay. The appellant submits that if appropriate deductions had been made the institutional delay would have been found to be only seven months and one week; below the Morin guidelines for tolerable institutional delay in the provincial courts.

[14] Under the second category of alleged error, the appellant submits that the trial judge shifted the burden to the Crown and took irrelevant factors into account in concluding that there was unreasonable delay. In its factum in particular, the appellant submitted that the trial judge made references under the rubric of “limits on institutional resources” to growth in the Halton Region and to the resulting strain on judicial resources which were not supported by evidence, which the Crown had no notice of and was not able to respond to. The appellant’s submissions in this regard were moderated at the hearing of the appeal.

The Respondent’s Position

[15] The respondent submits that the appellant has lost sight of the requirement that this court respect the factual findings made by the trial judge absent palpable and overriding error, which the respondent submits has not been demonstrated. The respondent characterizes the appellant’s submissions as asking me to conduct a s. 11(b) hearing “de novo”. In addition the respondent advances specific responses to each of the appellant’s submissions that an error occurred.

[16] I will provide further details about the parties’ positions in the analysis which follows.

Analysis

The Standard of Review

[17] A trial judge’s characterization of the various periods of time which make up the overall delay is reviewable on a standard of correctness, as is the ultimate decision as to whether there was unreasonable delay in the case before the court. No deference is owed to the trial judge on those matters. However, the underlying factual findings of the trial judge are reviewable on a standard of palpable and overriding error: see R. v. Cranston, 2008 ONCA 751; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19; R. v. Konstantakos, 2014 ONCA 21, at para. 5.

The First Category of Alleged Error – The Calculation of Institutional Delay

[18] The appellant submits that there are three areas in which the trial judge erred by failing to properly characterize or calculate a period of time which contributed to the overall delay. I will deal with each in turn.

The Period from September 4, 2014 to October 9, 2014

[19] The appellant first submits that the trial judge erred by including the five week time period from September 4, 2014 to October 9, 2014 in institutional delay. The appellant submits that this should have been regarded as neutral time. I will briefly set out the facts relevant to this issue.

[20] On March 18, 2014 the parties appeared in court to set a trial date. There is no issue that all of the time from February 8, 2014 to March 18, 2014 was neutral intake time and that the trial judge correctly deducted one month and ten days from the overall delay for that reason.

[21] On March 18, 2014 the court offered four potential dates for trial. They were September 4, 2014; September 15, 2014; October 8, 2014 and October 9, 2014. The “Request For Trial” sheet in relation to the March 18, 2014 court appearance shows that neither Crown nor defence counsel were available on September 4 or 15; the Crown was available October 8 but defence was not; the first of the offered dates when both counsel were available was October 9, 2014. That was the date set for trial.

[22] In his reasons, at paras. 20 to 21, the trial judge dealt with Crown counsel’s submission that the clock on institutional delay to the first trial date should stop on September 4, 2014, the first trial date offered by the court. He stated that he could not understand why Crown counsel would suggest that the clock should stop on a date when the Crown was not available.

[23] This comment by the trial judge reflects error. In Morin, at para. 47, Sopinka J. defined institutional delay as the period that starts to run when the parties are ready for trial but the court cannot accommodate them. At para. 73 Sopinka J. also made it clear that a period of institutional delay stops when the court can accommodate the parties.

[24] The trial judge was concerned about stopping the clock on September 4, 2014 because the Crown was not available. In some cases that circumstance could commence a period of Crown delay. However, in this case the record demonstrated that neither the Crown nor the defence were available on that date. For all but one day of the five week period between September 4 and October 9, 2014 neither party was available to accept dates offered by the court. The trial judge should have regarded this time period as neutral time, possibly with one day of defence caused delay, because while the Crown was available on October 8 defence counsel was not available until October 9. In the context of unreasonable delay the one day when the Crown was available and the defence was not is really de minimus. As this five week period was neutral time, it should not have been included in the calculation of institutional delay. As this is a characterization error it is reviewable on a standard of correctness. I find this error to be clearly established.

Inherent Preparation Time

[25] The appellant’s second argument is that the trial judge erred in his assessment of the amount of preparation time which should be deducted from what would otherwise constitute institutional delay. The trial judge concluded that six days should be deducted as inherent preparation time. The appellant submits it should have been at least 30 days. The appellant submits that 30 days is appropriate because 30 days has been attributed in a number of other simple drinking and driving cases reviewed in regard to s. 11(b) on appeal, and because the Criminal Rules of the Ontario Court of Justice require 30 days advance notice of a Charter application.

[26] The respondent’s position is that while there are a number of cases in which 30 days was imputed as an appropriate amount of inherent preparation time in a simple drinking and driving case, those were cases where specific evidence was not available to address the issue. The respondent submits that in the case at bar the trial judge considered case specific factors based on the record before him and made findings of fact which must be respected absent palpable and overriding error, which has not been demonstrated.

[27] These submissions focus on the period between the set date appearance on March 18, 2014 and the first trial date of October 9, 2014. As noted in R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 32, citing Morin, the parties should not be deemed to be ready for trial the moment the trial date is set. Time is required for counsel to clear their schedules and to prepare for the hearing. See also R. v. Lahiry, 2011 ONSC 678, [2011] O.J. No. 5071 (S.C.J.), at paras. 2, 26.

[28] The trial judge quoted from para. 32 of Tran at para. 23 of his judgment. He then indicated, at para. 24, that in the context of determining preparation time there should be some evidence available, either at the time the trial date is set or on the s. 11(b) application, as to counsel’s availability for trial.

[29] In the present case trial counsel for the appellant filed an affidavit from his law clerk on the s. 11(b) application setting out the dates defence counsel had available as of March 18, 2014 when the trial date was set. That evidence established that defence counsel had numerous dates available, the first of which was just six days later, on March 24, 2014. While this was some evidence of when defence counsel had time in his schedule to conduct the trial, I observe that there was no evidence led by defence counsel about when he could have been prepared and ready to go. He did not file his Charter application until sometime in April. As is often mentioned, counsel will have more than one ongoing case and trial preparation in all its forms must be integrated with counsel’s other commitments. That is no doubt why in Morin, Sopinka J. imputed 30 days for preparation of a simple drinking and driving case. Clearly it would not take 30 days just to prepare such a case.

[30] Although defence counsel’s first available date was six days after March 18, 2014 and this corresponds with the six day period the trial judge attributed to inherent preparation time, it does not appear to me that the trial judge arrived at his six day figure on that basis. Rather, he reasoned that this was a simple case with a straightforward Charter application. He opined that the experienced defence counsel would have been able to prepare the necessary paper work for the Charter application “within a day or two at most” (para. 25). While that may have been so, it overlooked the reality that counsel did not have just one case to work on.

[31] The finding that six days were required for preparation was based on the trial judge’s view of the complexity of the case rather than an inference reasonably drawn from evidence, beyond the evidence that defence counsel had an opening in his schedule six days later. There was no evidence about how long it would have taken counsel to become properly prepared, as opposed to available, and the trial judge gave no indication that he had taken defence counsel’s other professional obligations into account. In the absence of evidence on those points he should have been guided by cases that were binding upon him, such as Morin, which describe the relevant considerations for imputing inherent preparation time in the absence of an adequate evidentiary record.

[32] The trial judge also opined that the Crown could have responded to the defence Charter application within one week. He noted that close to trial, when it was brought to the Crown’s attention that the Crown had failed to respond to the defence Charter application, a response was filed within one day.

[33] I observe that there was no evidence or information before the court as to whether a Crown attorney had been assigned to the case as of March 18, 2014. Nor was there any evidence concerning the availability of the police witnesses for trial within six days of March 18, 2014. While the trial judge was required to come to a decision about an appropriate period of preparation time, he overlooked some of the important factors that must be taken into account based on the binding authorities. He made findings of fact in the absence of an adequate record. That approach has, in my respectful view, resulted in findings which are unreasonable and not supported by evidence. This constitutes palpable and overriding error.

[34] The standard of palpable and overriding error is a compendious expression for the principle that appellate courts may not interfere with findings of fact made and factual inferences drawn by the trial judge from an examination of the record, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable: R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9; R. v. Mac, 2016 ONCA 379, at para. 34. A palpable error is one that is obvious, plain to see or clear. Palpable errors include findings made in the complete absence of evidence and findings that are drawn from primary facts that are the result of speculation rather than inference. An overriding error is one which goes to the root of the challenged finding so that it cannot safely stand: see Waxman v. Waxman, [2004] O.J. No. 1765 (C.A.), at paras. 296-97; R. v. D.T., 2014 ONCA 44, at para. 80.

[35] In my respectful view the trial judge made a palpable and overriding error in concluding that only six days should be deducted from what would otherwise be institutional delay on the basis of inherent preparation time. He failed to consider that preparation must be integrated into the other work of counsel on both sides, engaged in speculation and made findings that were unsupported by the evidence.

[36] I would add the following. While the respondent’s Charter motion was filed early on, in April 2014, it was certainly not filed within one or two days. This is inconsistent with the correctness of the trial judge’s conclusion that only six days were needed for both counsel to clear their schedules and prepare. Additionally, even if the respondent could have prepared within two days and the appellant Crown within one week, as concluded by the trial judge, that would total three days more than the trial judge ultimately concluded was required for preparation. This also goes to the reasonableness of the trial judge’s determination on this point.

[37] At trial Crown counsel pointed to the requirement in the Criminal Rules of the Ontario Court of Justice that Charter applications be served 30 days in advance of a hearing date, as an indication that at least 30 days should be allocated for preparation in a case with a Charter application. The trial judge disagreed, pointing out that Rule 1.1(1) states: “The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently” (para. 26). He then indicated that he could “see no reason why a judge would not have allowed an abridgement of those time periods to allow an accused, who obviously desired a speedy trial, to have one within a 6-day period” (para. 27). The trial judge went on to say that no trial judge could complain about having such a routine Charter application land on their desk on the morning of a trial.

[38] In my respectful view this finding by the trial judge is purely speculative. It fails to take into account what Crown counsel’s reasonable submissions may have been on an application to abridge the time for service in relation to a trial to be held within only six days. It simply cannot be known what reasonable arguments or circumstance might have come forward had an application to abridge the time for service been brought.

[39] As Justice Durno recently emphasized in R. v. Ritchie, 2016 ONSC 1443, [2016] O.J. No. 1081, at para. 34, “[W]hen counsel are ready for trial, meaning available and fully prepared to proceed, should not be determined by one counsel’s readiness…” In Ritchie, where a somewhat similar issue arose, Justice Durno pointed out that pursuant to Morin both parties must be ready. Witnesses have to be subpoenaed, Crown counsel has to be assigned, research conducted and witnesses interviewed. While no one challenges the trial judge’s conclusion that this was a straightforward case, on the record before the trial judge there was no basis to conclude what the outcome of an application to abridge the notice requirement might have been. Six days would be an extraordinarily quick turnaround time and the position of the Crown and the arguments that may have been advanced in those circumstances cannot be known.

[40] As the trial judge’s conclusion concerning potential abridgement of the notice requirement was speculative and central to his determination that six days was an appropriate period for inherent preparation time, this is another reason why that determination cannot stand. I agree with the submission made at para. 18 of the appellant’s factum that the trial judge presumed an abridgement of the notice period without regard to fairness to the prosecution, something which is contrary to the fundamental objective of the Rules themselves.

[41] While I conclude that the trial judge erred in relation to the assessment of neutral preparation time, I wish to be clear that I am not endorsing an automatic finding of a minimum 30 day period in any case with a Charter application based on the 30 day notice requirement. My conclusion is based on the absence of evidence to support the trial judge’s finding and my determination that the trial judge unreasonably assumed an abridgement of the 30 day notice requirement would be made. Each case must be decided based on its own circumstances.

[42] I also observe that when considering Crown preparation time the more relevant provision in the Rules is the requirement that the Crown respond to an application 15 days before the return date. In the context of a 30 day notice requirement on the applicant this provides a general indication that 15 days is considered necessary and adequate for Crown counsel to prepare their response.

[43] Given my conclusion that the trial judge erred, based in part on making findings on an inadequate record, I would impute 30 days for neutral preparation time. This was the time imputed in Morin for preparation, also a straightforward drinking and driving case. Thirty days is a reasonable period which takes into account the nature of the case and allows counsel on both sides to integrate all aspects of necessary preparation into their other professional obligations.

[44] Before leaving this aspect of the case I feel I should address an argument made by the appellant that I have not yet commented upon. The appellant also submitted that the trial judge erred in assessing six days for preparation time because defence counsel had not placed all of his available dates on the record on March 18, 2014 when the first trial date was set. I do not agree with this submission.

[45] As reviewed in Lahiry, at paras. 26-34, there are many reasons why counsel should put all of their available dates on the record when setting a trial date in any case where s. 11(b) may be raised. However, for some purposes it may be sufficient to ensure that such evidence is before the court on the s. 11(b) application. That is what happened in this case. Credible evidence was put before the court on the s. 11(b) application as to counsel’s earlier availability. That was sufficient to assist the court in determining counsel’s available dates as part of the process of determining when defence counsel was available for trial. I point out, however, that from the perspective of other aspects of the s. 11(b) analysis, bringing such information forward only after the fact will not likely assist an accused. For example, in considering the actions of the accused, a failure to put all available dates on the record may signal that the accused was not genuinely interested in a speedy trial.

The Calculation of Institutional Delay from the First to the Second Trial Date

[46] When it was apparent that the respondent’s trial could not be completed in the time remaining on October 9, 2014 counsel approached the trial coordinator to look into continuation or new trial dates. They did that before addressing Justice LeDressay at 2:30 in the afternoon.

[47] With the exception of three weeks, the trial judge attributed the entire delay between October 9, 2014 and March 26, 2015 to institutional delay. The three weeks that were not included were at the beginning of this period of delay. The trial judge excluded them because defence counsel said that he was not available for a new trial until October 30, 2014. While not part of the grounds of appeal, I found this deduction from institutional delay strange given that there was no evidence that the court had time available to try the case during that three week period. I requested and received additional written submissions from counsel on this point.

[48] Having considered those submissions, I conclude that the trial judge erred in deducting three weeks from the beginning of this period of delay from consideration as institutional delay. Counsel’s unavailability should not have been deducted from the overall institutional delay unless there was evidence that the court was available during that time. I note that this error benefitted the appellant.

[49] A very similar situation came before the Court of Appeal in R. v. A.J.W., 2009 ONCA 661, [2009] O.J. No. 3814. Rosenberg J.A. held that the failure of the court to accommodate a scheduled trial due to a lack of judicial resources commenced a period of institutional delay. He held that the period of institutional delay would continue at least to the point where the institution was again in a position to conduct the trial. From that point on further delays due to counsel’s unavailability would be treated as neutral time.

[50] While the trial judge referred to A.J.W., he seems to have reversed the order of relevant considerations as described in that case, leading to further error. There was no evidence that the court could accommodate the trial within that three week window. I conclude that the trial judge should not have deducted three weeks from the commencement of the period in question. As held in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23, in circumstances where the institution has failed to accommodate a trial defence counsel cannot be expected to “hold themselves in a state of perpetual availability”.

[51] I also observe that this was not a delay caused because something unexpected and unrelated to institutional resources occurred, such as the illness of a witness, for example. That would give rise to delay that was inherent or neutral. Here the delay was due to a lack of institutional resources. While it may be acceptable to overbook courts based on a “fallout rate”, the institution adopts that approach based on experience in the expectation that all cases will be reached. Significant overbooking may upset that expectation. The trial judge indicated that there was a history of delay in the region which was caused by overbooked courts. Indeed, this case did not proceed on the first trial date because another case was given precedence because it had not been reached on a prior occasion.

[52] The respondent has also referred me to R. v. Drobotenko, [2015] O.J. No. 4956 (C.J.), another s. 11(b) case from the same region. That case supports the conclusion that delay due to overbooked courts is an ongoing institutional problem in the region. See, in particular, paras. 60-65 and 91 of Drobotenko.

[53] I return now to the appellant’s submissions that the trial judge erred in considering the period of delay under discussion. The appellant’s submissions are focused on the later portion of this period of delay.

[54] The appellant contends that, based on the October 9, 2014 transcript, it was apparent to the trial judge that trial dates had been offered in December 2014 but they were declined because defence counsel was unavailable. The appellant submits on the basis of A.J.W. that the delay from some point in December, when the court could again accommodate the trial, to the second trial date, should be regarded as neutral time. Consequently, the appellant submits the trial judge erred by failing to deduct a further four months when calculating the institutional delay.

[55] A similar argument was advanced to the trial judge. The only difference was that at trial Crown counsel submitted that the period from December 2014 to March 26, 2015 should be apportioned between defence caused delay and neutral time. The trial judge rejected the argument and I am not persuaded that he erred in doing so. In order to explain why I hold this view it is necessary to look more closely at what happened on October 9, 2014.

[56] When counsel came before Justice LeDressay they had already spoken to the trial coordinator. Unfortunately, neither counsel put all of the dates offered by the court on the record. Crown counsel did say that there were “a few” dates offered in December 2014 when defence counsel was not available. Defence counsel acknowledged that there were two or three dates offered in December, either to continue before Justice LeDressay or to start fresh, when he was unavailable. However, the exact number of dates or what they were was not specified. Clearly, and of significance, only a small number of dates were offered by the court.

[57] In contrast, defence counsel advised the court that he was available on one date in October, six dates in November and “numerous dates” thereafter and prior to the March 26, 2015 date. The record is silent about the Crown’s availability on any of those dates. The inference is that either the court or the Crown was not available on those dates.

[58] The trial judge was troubled by the fact that the record was unclear and by the fact that the Crown had not put all available dates on the record. He was also concerned that the case had been given no priority despite the fact that defence counsel was not waiving s. 11(b). His decision that all of the time up to the March 26, 2015 date should be considered institutional delay also rested substantially on his finding that only a few dates had been offered by the court prior to the March 26 date, while defence counsel was offering many more dates.

[59] In this context the trial judge referred to and relied upon both A.J.W. and Godin. He was correct to do so. In A.J.W., at para. 32, Rosenberg J.A. indicated that following a mistrial triggered by an institutional failure the court had to closely examine the record. Rosenberg J.A. apportioned the delay following the mistrial in that case. He did so on the basis that the record before him was clear as to availability of counsel and the court for one portion of the period of delay he was dealing with but not for another. He emphasized, at para. 34, that following an institutionally caused delay the evidentiary burden was on the state to show that the state could accommodate the trial: see Morin at p. 788. He attributed the portion of the period of delay about which the record was unclear to institutional delay. The balance of the period, where the state had discharged its burden of ensuring that availability was clearly on the record, was determined to be neutral time.

[60] The trial judge referred to this passage and closely scrutinized the record. However, he did not anchor his decision on the fact that not all dates were put on the record by Crown counsel. Had he done so he would have erred because, despite the deficiencies in the record, it was clear that the system could have accommodated the trial at some point in December but for the fact that defence counsel was unavailable.

[61] As I read the trial judge’s reasons, at para. 40, he anchored his decision on the fact that only a few dates had been offered by the court in circumstances where defence counsel clearly had many more dates available between October 30, 2014 and March 26, 2015. Previously, at para. 32, the trial judge mentioned that this case had not been given any priority. He reasoned, correctly in my view, that the situation before him was very similar to that which Cromwell J. was addressing at para. 23 of his judgment in Godin. Cromwell J. held there that in similar circumstances it was incorrect to reason that further institutional delay was waived once counsel declined the first offered date due to unavailability. The trial judge quoted the words of Cromwell J. which immediately followed that conclusion: “Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.”

[62] As the trial judge’s findings that only a few dates had been offered by the court and that defence counsel had numerous other dates available were reasonable and supported by the evidence I must accept them. Those findings by the trial judge made para. 23 of Godin directly applicable. It was Godin which the trial judge applied to reach this decision and I see no error in his having done so.

Conclusions Under this Category of Alleged Error

[63] I conclude that the trial judge erred in failing to remove the five week period from September 4, 2014 to October 9, 2014 from institutional delay.

[64] I also conclude that the trial judge erred by attributing only six days to inherent preparation time. In view of that error I would impute 30 days as preparation time. This means that a further three weeks must be deducted from the trial judge’s calculation of institutional delay. I am not persuaded that any additional periods should be deducted.

[65] Therefore, the trial judge’s finding of institutional delay must be brought down by two months, from 11 months and one week to nine months and one week.

[66] I also conclude that the trial judge erroneously removed three weeks from his calculation of institutional delay due to defence counsel’s unavailability for three weeks immediately following the first trial date. That must be added back into institutional delay. The period of institutional delay comes back up to ten months, representing the top of the Morin guideline for permissible delay, in a case where the trial judge made findings of both actual and inferred prejudice.

The Second Category of Alleged Errors

[67] The appellant also alleges that the trial judge made a number of more general errors. These are alleged errors which do not have a direct bearing on the calculation of institutional delay, but which would be felt at the balancing stage when determining whether s. 11(b) had been violated. I will deal with each in turn based on my understanding of the submissions made in the appellant’s factum as modified during oral argument.

Reversal of the Burden of Proof

[68] In its factum, at paras. 23 and 39, the appellant submits that the trial judge shifted the onus of proof onto the Crown. The appellant contends that this occurred when the trial judge failed to take into account that it was the respondent who did not want to start the trial on October 9, 2014 and when he criticized the Crown for failing to ensure that all dates offered by the court and all of counsel’s available dates were put on the record on October 9, 2014.

[69] I am unable to accept these submissions. It appears to me that the appellant is confusing the burden on an applicant to establish a violation of s. 11(b) of the Charter on a balance of probabilities with the responsibility resting on the Crown to bring an accused to trial within a reasonable time. As stated by Cromwell J. in Godin, at para. 11:

It [the Crown] is responsible for bringing an accused person to trial and for the provision of facilities and staff to see that accused persons are tried within a reasonable time: R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1225. The Crown bears the burden of explaining unusual delays…

This also explains why Rosenberg J. held in A.J.W., at para. 34, that: “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.”

[70] I am satisfied that the matters the appellant refers to as a reversal of the burden fall within the scope of the foregoing and do not reflect any error on the part of the trial judge. At para. 95 of his reasons the trial judge made a specific finding that the applicant had shown on a balance of probabilities that his right to trial within a reasonable time had been infringed.

Failure to Consider that the Respondent Chose Not to Commence the Trial on October 9, 2014 in Relation to “Actions of the Accused”

[71] The appellant submits that the trial judge erred by failing to take into account under “actions of the accused” that the respondent made a choice not to commence the trial on October 9, 2014 even though it could not be finished that day. The appellant submits that the trial judge should have considered this as an indication the respondent was not interested in a speedy trial.

[72] I cannot accept this submission. The trial judge made a finding that was well supported by the October 9, 2014 transcript, that Crown and defence counsel were in agreement that starting that day would not assist in achieving a speedy trial. They had already consulted with the trial coordinator before coming into court. In addition, the record overall supports the trial judge’s finding that the respondent was proceeding expeditiously. There is no substance to this ground of appeal.

Repeated References by the Trial Judge to “Overbooked” Trial Lists

[73] The appellant points out that the trial judge repeatedly referred to “overbooked” trial lists in Halton Region. The appellant submits that what occurred in this case was not overbooking and that overbooking is not inappropriate in any event.

[74] There is a body of case law which endorses booking more time in a trial court than can be accommodated due to the fact that there is normally a “fallout rate”, because some cases will not proceed. See for example R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.), at para. 44 and following; R. v. Apolinaro, [2007] O.J. No. 4788 (S.C.J.), at para. 52 and following; R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.). However, these cases also indicate that there must be reasonable limits to overbooking. They explain that in judicial centres where multiple courts are operating, reasonable overbooking of trial courts to account for the “fallout rate” goes hand in hand with judicial cooperation and the ability to shift cases from one courtroom to another as help from other courts becomes available.

[75] In oral argument the appellant submitted that the trial judge put excessive weight on the fact that the respondent’s trial was not reached due to overbooking. I am unable to accept that submission. The trial judge did not indicate that overbooking was not a permissible or necessary practice. He was stating his experience that provincial trial courts in Halton Region are frequently overbooked to the point where it results in delay and that that accounted for the respondent’s case not being reached. This was part of the trial judge’s consideration of limitations on institutional resources which he was required to undertake by virtue of the Morin analysis.

[76] I also observe that in his reasons the trial judge made reference to his prior judgment in Papandrea and to Cooper J.’s decision in Abreu, where it is pointed out that a particular difficulty can arise from overbooking trial courts in Halton Region. As there are two court locations a considerable distance apart and no public transportation between them, judicial cooperation is of limited assistance when the anticipated fallout rate does not materialize, because it is difficult to move cases from one location to the other on a trial date.

[77] It was for the trial judge to take these factors into account pursuant to the Morin analysis. The appellant has failed to persuade me that the trial judge did so inappropriately.

Other Comments Regarding Limitations on Institutional Resources

[78] The trial judge made extensive comments about this subject in his reasons. They extended to comments about a flooded courtroom, eavestroughs falling off buildings, making it dangerous for court staff, and insecure parking lots. Clearly, these considerations had no impact on whether the respondent had a trial within a reasonable time. The trial judge’s references to these and similar matters fuel an argument by the appellant that the trial judge’s frustrations and his opinion about the lack of governmental concern for judicial working conditions got the better of him and overshadowed more relevant considerations.

[79] I note, however, that the trial judge placed much greater emphasis under this heading on factors which were clearly relevant, such as rapid population growth in the region, that such growth had continued over a number of years and that it was expected to continue. His Honour described the lack of any increase in the judicial complement in the region, the fact that growth in family law and child protection cases had reduced the judicial resources available to do criminal work, and referred to legitimate concerns about physical facilities.

[80] On this last point I again mention the difficulty sharing trial work within the region when there are two court locations and no public transportation between them. There is also the legitimate concern that there are no courtrooms or facilities to accommodate additional judges should they be appointed or transferred to the region to assist. This represents a form of “Catch-22” for deployment of judicial resources. The trial judge explained the steps the court was taking to try to manage the situation.

[81] In its factum the appellant submitted that there was no evidence to back up the trial judge’s reference to “phenomenal growth in Halton Region”. The appellant went on in its factum to submit that there was no evidence to demonstrate that any increase in the population was causing a strain on judicial resources, whether criminal charges are rising or whether “collapse” rates justify the scheduling of more than one trial per judicial day. In its factum the appellant also submitted that it was taken by surprise by the trial judge’s extensive reference to such matters.

[82] The appellant’s position was moderated considerably in oral submissions. Little emphasis was placed on the submission that evidence was required or that the Crown was taken by surprise. The appellant agreed during submissions that many of the matters taken into account by the trial judge were relevant to the analysis. The emphasis in oral argument was on the submission that those of the trial judge’s concerns and opinions which were of little relevance overwhelmed a correct approach to the analysis.

[83] The respondent takes issue with the arguments advanced in the appellant’s factum. He points out that factors such as population growth and a region’s limited resources have been considered a relevant consideration by the Supreme Court of Canada since R. v. Askov, [1990] 2 S.C.R. 1194. He also points out that the Crown had been aware of the trial judge’s concerns about limitations on institutional resources since his decision in Papandrea in 2012, which the Crown did not appeal, and that the appellant was aware of the more recent decision by a different jurist in Abreu on the same subject.

[84] After careful consideration I conclude I am not persuaded the trial judge’s extensive discussion under this heading constitutes error in the particular circumstances of this case.

[85] While it would certainly be preferable to have a more developed evidentiary record, I point out that the significant population growth in Halton Region is not controversial but a frequent matter of public comment. Halton Region is on the edge of the ever expanding Greater Toronto Area (GTA).

[86] I also note that in view of the judgments in Papandrea and Abreu the appellant can hardly argue that it was taken by surprise. Yet it produced no evidence on these subjects when it was in the best position to do so. While there was no evidence that the work of the courts has increased due to the population increase, given that the increase in population has been prolonged and is continuing, common sense inferences are available in a case where precise quantification is not required in order to take this Morin factor into account.

[87] It would also be a notorious and well-known fact that the judicial complement in the region had not been increased for a number of years. Many of the trial judge’s comments about changes in the law and other factors which affect the workload of the court, including the increasing number of s. 11(b) applications which, ironically, further slow the courts, are also well known.

[88] As to physical facilities, the point has already been made that the inadequacy of court facilities has a direct impact on the ability of the provincial courts to cooperate to handle the workload. I observe that the trial judge referred to a resolution of the Halton Hills Town Council and to public comments made by Chief Justice Heather Smith of the Superior Court about inadequate facilities in the Halton Region. These are both highly public indications by responsible institutions that there is a problem in the region.

[89] Against the background I have outlined above, what is of most significance to my determination that these comments do not reflect error is that I am satisfied that they did not overwhelm the trial judge’s analysis as the appellant submits. While some of the trial judge’s comments referred to matters that are not directly relevant to the s. 11(b) analysis they are contextually related to the concern that governments are not devoting adequate resources to the requirements of the justice system in Halton Region. The appellant has not directed me to any particular way in which the reference to these concerns improperly influenced the trial judge’s decision. My review of the trial judge’s reasons as a whole leads me to conclude that any irrelevant comments had no impact on his ultimate decision. I would not give effect to this ground of appeal.

Prejudice

[90] The appellant does not point to any legal error made by the trial judge in concluding that the respondent suffered prejudice. Rather, the appellant refers me to the transcript of the respondent’s cross-examination and, in essence, submits that I should come to different conclusions than the trial judge did.

[91] The appellant is asking me to conduct a new hearing without respecting the factual findings made by the trial judge. The trial judge’s findings were based on his credibility assessment of the respondent. As the appellant has failed to demonstrate any palpable or overriding error, the trial judge’s credibility assessment and factual findings must be respected. Having found the respondent credible all of the trial judge’s findings of actual prejudice are amply supported by the evidence. I am far from persuaded the trial judge erred in his assessment of actual and inferred prejudice.

Balancing the Interests Protected by [s. 11(b)](https://laws-lois.justice.gc.ca/eng/const/page-15.html#h-40)

[92] Having concluded that the trial judge erred in a number of ways in calculating the period of institutional delay I am in a position where I must undertake my own analysis of whether there has been a violation of s. 11(b) in this case. I undertake that analysis based on my characterizations of the periods of delay in respect of which I have found the trial judge erred. However, I otherwise accept the findings of fact and characterizations made by the trial judge. This leaves me in a position where I reach my conclusion at the balancing stage.

[93] While in the circumstances I do not owe deference to the trial judge’s balancing, I acknowledge that he has correctly described the balancing process in his judgment. I am in a similar position to that which the Court of Appeal was in when deciding R. v. Kporwodu (2005), 75 O.R. (3d) 190, [2005] O.J. No. 1405: see paras. 186-89.

[94] I have taken into account everything that was said about the balancing exercise in Kporwodu. I must balance the individual and societal interests which underlie s. 11(b) with the length and causes of the delay. It is not simply a matter of balancing the length of the delay against prejudice. However, in a close case, as this one is, the existence of prejudice is significant.

[95] I have found that the institutional delay in this case is 10 months. That is at the top of the Morin guideline. As has often been emphasized, a guideline is just that. It is not a limitation period beyond which delay is unreasonable. I also take note of the fact that the Morin guideline for the provincial courts encompasses a range of from eight to 10 months. Implicit in the existence of a range is the notion that unreasonable delay may be found in some cases that fall within those boundaries if a consideration of the reasons for the delay and the impact of the delay on Charter protected interests warrants it.

[96] I have already said that I see this case as a close call given that it falls at the upper limit of the Morin guidelines for tolerable delay. However, I have nonetheless come to the same conclusion that the trial judge did. I conclude that there has been unreasonable delay in this case. A number of factors operating in combination lead me to this conclusion.

[97] First, this case was a very straightforward case. There are probably few examples of less complicated cases to be found in the routine trial work of the Ontario Court of Justice. Speaking generally, one would hope that such cases could be dealt with before institutional delay exceeded the bottom of the guideline for tolerable delay. The straightforward nature of this case suggests that using the lower end of the guideline is appropriate. The institutional delay in this case exceeds that by two months.

[98] Second, as found by the trial judge, the respondent and his counsel acted expeditiously throughout. There is not even a hint that the accused wanted or acquiesced in any delay. Based on the evidence and the trial judge’s findings in regard to prejudice, this was a case in which the respondent had no interest in delay. The respondent did everything he could to obtain a speedy trial. This also suggests that it is the bottom of the guideline which should be most influential. This routine and very simple case would have taken approximately 13.5 months to complete had it proceeded to trial on the second trial date. While not determinative, in these circumstances R. v. Vassell, 2016 SCC 26 is informative and supports my conclusion that it is the lower end of the guideline that should be emphasized.

[99] Third, and of considerable significance to my conclusion, is the fact that the only cause of the delay in this case was institutional. There were inadequate judicial resources available to try the case as planned. When the respondent arrived for his one day trial he unexpectedly found that there were two other cases on the list. One of those cases had been up for trial before and was called in priority. That, in itself, indicates a lack of institutional resources. While the Crown cannot be faulted for calling the other case first, that had a domino effect causing further and unanticipated delay in this case.

[100] Based on other decisions from the same jurisdiction which I have referred to, delays for this reason are not uncommon. The trial judge alluded to frequent overbooking leading to delays in this sense. This signals an ongoing institutional problem that is likely to negatively impact the s. 11(b) protected interests of many accused persons.

[101] Based on those prior decisions the Crown must have been aware of the perceived problem but produced no evidence to show it was a false perception. The Crown bears the burden of bringing an accused to trial and has the evidential burden of explaining unusual institutional delays.

[102] All of this suggests that society’s interest in speedy trials is being imperilled by a lack of institutional resources in the region. Both the Town Council and the Chief Justice of the Superior Court have made public comments about the inadequacy of court facilities. As explained above, inadequate facilities leave the provincial courts in Halton Region in a difficult position because they cannot easily reshuffle cases when courts become available to help. A shortage of courtrooms also impairs the ability of the court to assign additional resources to deal with the problem. There can be a “Catch-22” effect because there is no place to put additional judicial complement.

[103] It is well known that there has been, is and will continue to be a rapid population growth in the region. This is not a recent or unanticipated phenomenon. These are circumstances that have been commented upon by the Supreme Court of Canada in relation to other rapidly expanding regions surrounding the GTA.

[104] I also observe, as did the trial judge, that this case was not given priority in the system when it could not be dealt with on the first trial date. This is also of significance to my final conclusion. It appears that a few dates were offered for trial in December 2014 when counsel was not available. However, the defence had dates available in October, November and “many dates thereafter” and prior to the March 26, 2015 trial date that was ultimately set. The fact that the case was not given priority and that the system could not provide a trial on any of the many other dates when defence counsel was available further highlights a serious institutional problem.

[105] In short, the reasons for the delay in this straightforward case are troubling evaluated from the perspective of all of the interests s. 11(b) of the Charter is intended to protect. As the trial judge indicated, while society has an interest in trials on the merits it also has an interest in a properly functioning justice system.

[106] Next, I find that the prejudice suffered by the respondent in this case is significant. That is particularly so given the straightforward nature of this case. While his liberty interests have not been prejudiced his security of the person and full answer and defence interests have been.

[107] The trial judge accepted the respondent’s evidence that he had not been able to look for work in his field. He was a recent university graduate with a commerce degree. The trial judge accepted the respondent’s evidence that he felt it would be unethical for him to take a job that he would have to resign from if he obtained a criminal record or lost his driver’s licence. As a result, he was underemployed and stressed.

[108] The trial judge found that the unanticipated nature of the delay made its negative effects more impactful. The respondent came to court for his trial after a good deal of worry and sleeplessness only to find out that his trial would not proceed and that he would continue in a state of “limbo” for several more months.

[109] The trial judge also accepted the respondent’s evidence that he had been subject to additional legal fees as a result of the delay. The trial judge reasonably concluded that such additional fees would likely exceed the fine the respondent would receive if convicted. The respondent had no criminal record and there was no accident. The trial judge also found that the respondent was legitimately concerned about the effect the passage of time was having on his memory. I accept and rely upon all of the trial judge’s findings of prejudice.

[110] When I look at society’s interests, it seems to me that this is a situation in which the interest in the inherent benefits of trials within a reasonable time should be weighed more heavily in the balance than society’s interest in a trial on the merits. While drinking and driving cases are serious, as the trial judge acknowledged, the misconduct alleged against the respondent was towards the bottom end of the scale. The trial judge described the respondent as an honest young man who was suffering significant prejudice due to the delay. That delay was not the result of some vagary of circumstances. It was the result of failure of the court system to provide adequate resources. Moreover, the circumstances of this case and of other cases in the region that I have referred to indicate this is not an isolated situation but one which is negatively impacting on others, presumed to be innocent, who come before the courts in Halton Region.

[111] Taking all of these circumstances and considerations into account I conclude there has been unreasonable delay constituting a violation of s. 11(b) of the Charter. The stay imposed by the trial judge is confirmed.

Conclusion

[112] The appeal is dismissed.

F. Dawson J.

Released: July 5, 2016