Court File and Parties

COURT FILE NO.: CR-1500000062-00AP DATE: 20160805 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – THAMILMARAN SWAMINATHAN Respondent

Counsel: Sunita Malik, for the Crown Adam Little, for the Respondent

HEARD: April 22, 2016

Reasons for Judgment

[On appeal from a stay of proceedings ordered by Justice F. Crewe of the Ontario Court of Justice dated June 20, 2015]

B. P. O’MARRA J.

[1] The appellant submits that the trial judge erred in finding that the respondent’s right to a trial within a reasonable time had been violated contrary to s.11(b) of the Charter of Rights and Freedoms. The trial judge found that the total of crown and institutional delay to the start of trial was eleven months and three weeks. He also found that the total of crown and institutional delay to the end of trial was thirteen months and one week.

[2] Since submissions were made on this appeal, the Supreme Court of Canada released R. v. Jordan, 2016 SCC 27 and R. v. Williamson, 2016 SCC 28 on July 8, 2016. Those decisions set out a new framework for the analysis of s.11(b) applications. The court directed that judges hearing s.11(b) applications or appeals from such rulings “(to) apply the (new) framework contextually and flexibly for cases currently in the system” (para. 94).

Proceedings in the Ontario Court of Justice

[3] The respondent was arrested for impaired driving and over 80 on January 20, 2014. There were nine court appearances up to and including August 26, 2014. Trial dates were set for March 18 and 19, 2015. The trial was not completed on March 19, 2015. The court offered continuation dates of March 27 and 30, and May 28, 2015. The crown was available on March 27, 2015 but the defence was not. A further date was set for May 29, 2015. On April 7, 2015, the matter was brought forward at the request of the Crown to set a different date to continue the trial due to a scheduling conflict. The new continuation date was set for June 19, 2015.

[4] On May 13, 2015, the respondent filed a motion based on s. 11(b) of the Charter returnable on June 19, 2015. The Crown filed a response on May 28, 2015. The motion was argued on June 19, 2015. The charges were stayed pursuant to s. 24(1) of the Charter on July 20, 2015.

Standard of Review

[5] A helpful summary of the standard of review is found in the very recent decision of R. v. Ibrahim, 2016 ONSC 4426 at para. 17:

[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 Law on s. 11(b) of the Charter

Onus

[6] The applicant has the legal burden of proving an alleged violation of s. 11(b) of the Charter on a balance of probabilities. See R. v. Morin, [1992] 1 S.C.R. 771 at para. 14.

Relevant Period of Assessment

[7] The relevant period of assessment is the overall period beginning at the commencement of proceedings to the end of the trial. See R. v. Nguyen, 2013 ONCA 169 at para. 49.

Factors to Be Taken Into Account

[8] The court must consider the following:

(1) Length of the delay; (2) Waiver of any time periods by the accused; (3) Reasons for the delay, including: (a) The inherent time requirements of the case; (b) Conduct of the accused or delay attributable to the accused; (c) Conduct of the crown or delays attributable to the crown; (d) Systemic or institutional delays; and (e) Any other reason for the delay.

(4) Prejudice to the accused: Morin, at para. 31 and R. v. Tran, 2012 ONCA 18 at para. 20.

Guidelines for Provincial and Superior Courts

[9] The Supreme Court of Canada has announced that, as an “administrative guideline”, the permissible range of systemic delay, after the preliminary intake functions have all been completed, is (1) in the range of eight to ten months in the Ontario Court of Justice; and (2) in the range of six to eight months in the Superior Court of Justice. See R. v. Mahmood, 2012 ONSC 6290 at para. 64, Morin at para. 55, and R. v. S.(L.), 133 C.C.C. (3d) 493 (Ont.C.A.).

Assessment of the Delay

[10] The court must avoid the application of any mathematical or administrative formula and instead adopt a judicial determination that balances the interests s. 11(b) of the Charter protects against factors that either inevitably lead to delay or otherwise cause delay. See Nguyen at para. 49.

[11] The time required to schedule, prepare for and conduct judicial pre-trials should be considered an inherent time requirement of the case. See Nguyen at 54, 59 and 60.

[12] Whether a delay is unreasonable is not simply a function of the passage of time. It includes a thoughtful consideration of several other constitutionally relevant factors. See Mahmood at para. 7.

[13] The degree of systemic delay in any given case is simply one factor that must be considered under s. 11(b) of the Charter. If the systemic delay in a case exceeds the administrative guideline, it will simply weigh against the crown in the overall assessment of reasonableness of the total period of delay. It does not, however, automatically compel a conclusion that there has been a violation of s. 11(b) of the Charter. See Morin at pp. 794-800 and R. v. Kovacs-Tatar, 192 C.C.C. (3d) 91 (Ont.C.A.) at paras. 19, 27-30, 51, and 52.

[14] In assessing the actions of the accused and the crown under s. 11(b) of the Charter, the court is not attempting to assign blame to one of the parties for any period of delay. Rather, the court is simply assessing the factual causes for the various delays in the case. Accordingly, there is no need to investigate the intention or motives of the parties. The Supreme Court of Canada indicated in Morin that this assessment is simply an attempt by the court, to take into account all of the actions “voluntarily undertaken” by either the accused or the crown which, in fact, caused delay in the proceedings. Once it is determined that the conduct of a particular party has caused a particular delay, then that delay is attributed to or counted against that particular party. See Mahmood at para. 62.

Prejudice

[15] The focus of the constitutional protection provided by s. 11(b) of the Charter is the prejudice arising from the delay in disposing of the matter, and not any prejudice that may arise from the fact that he has been charged with the offences. See R. v. Conway, 49 C.C.C. (3d) 289 SCC at p. 305; Kovacs-Tatar at para. 32-34.

[16] As a matter of law, prejudice is not automatically presumed to have been suffered by an accused in every case. Normally, prejudice must be established by evidence. Prejudice may be inferred, however, in appropriate circumstances, where there has been a “very long and unreasonable delay”, or a delay that is “substantially longer than can be justified on any reasonable basis.” The potential inference of prejudice, in other words, must flow from long periods of delay that are unreasonable and unjustified. Of course, the longer these periods of delay, the more likely it is that an inference of prejudice will be drawn. Accordingly, any prejudice resulting from the inherent time requirements of the case, or caused by the accused, or which is otherwise inevitable and necessary, is entitled to no weight. See Morin, at pp. 801-803; R. v. Sharma, [1992] 1 S.C.R. 814, at pp. 817-818 and 828-829; R. v. White, 114 C.C.C. (3d) 225 (Ont.C.A.) at pp. 238-245; R. v. Faulkner, 2013 ONSC 2373, [2013] O.J. No. 2315, at paras. 115-128.

[17] Institutional delay starts to run when the parties are ready for trial but the court cannot accommodate them. Institutional delay stops when the court can accommodate the parties. See Morin, paras. 47 and 73.

[18] The parties should not be deemed to be ready for trial the moment a trial date is set. Time is required for counsel for both sides to clear their schedules and prepare for trial. See Tran at para. 32, R. v. Lahiry, 2011 ONSC 678 at paras. 2 and 26, and R. v. Ritchie, 2016 ONSC 1443, [2016] O.J. No. 1081 at para. 34.

[19] The vast majority of drinking and driving cases include applications for relief under the Charter. The Criminal Rules of the Ontario Court of Justice require thirty days advance notice of a Charter application. The crown is required to respond fifteen days before the return date. On such cases, thirty days after the trial date is set is a reasonable period to categorize as inherent time. See Ibrahim, at para. 43.

[20] Where a trial cannot be completed on the scheduled dates, or where a trial cannot be accommodated due to a lack of judicial resources, defence counsel cannot be expected to “hold themselves in a state of perpetual availability”. See R. v. Godin, 2009 SCC 26 at para. 23. The period of institutional delay continues at least until the institution is again in a position to conduct the trial. Further delays due to counsel’s unavailability would be treated as neutral time. See R. v. A.J.W., 2009 ONCA 661 at paras. 30, 32 and 33.

[21] The task of a judge in deciding whether s. 11(b) of the Charter has been infringed and proceedings against the accused must be stayed, is to balance the individual and societal interests that underlie s. 11(b) of the Charter with the length and causes of delay. Balancing is “not to be paid by mere lip service, nor is a mechanical approach to be taken to the computation of time when assessing reasonableness for the purposes of s. 11(b) of the Charter”; R. v. Kporwodu, [2005] O.J. No. 1405 (Ont. C.A.) at para. 185 and 188.

[22] The Supreme Court in Jordan and Williamson sets out a new framework for such applications at paras. 5, 47, 48, 51, 61-63, and 64:

• There is a presumptive ceiling of eighteen months in the Provincial Court and thirty months in the Superior Court.
• If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
• If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of time attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. It is expected that stays beneath the ceiling would be rare and limited to clear cases.
• “Compelling case-specific factors” remain relevant to the assessment of the reasonableness above and below the presumptive ceiling.
• Defence delay that will be subtracted from the overall time from charge to the end of trial encompasses only defence waiver or delay caused solely by the defence. The defence will have directly caused the delay if the court and the crown are ready to proceed, but the defence is not.

Analysis

First Alleged Error (The period between March 25, 2014 and April 15, 2014)

[23] The trial judge found that the time between March 25, 2014 (the second appearance) and April 15, 2014 was Crown delay. There was still outstanding disclosure as of March 25, 2014. On a routine impaired driving case such as this, sixty days would be a reasonable intake/inherent time period. The trial judge did not err in characterizing these further three weeks as Crown delay.

Second Alleged Error (The period between August 5, 2014 and August 26, 2014)

[24] This was the three-week period for the judicial pre-trial and setting the trial dates. The trial judge erred in finding that this was Crown delay. Such a reasonable period to schedule a judicial pre-trial for a matter that required two days for trial is properly characterized as inherent delay.

Third Alleged Error (The period between August 26, 2014 and March 18 and 19, 2015)

[25] This is the time from the judicial pre-trial to the trial date. The trial judge erred when he found that the entire time was institutional delay. There was a failure to factor in the reasonable time for both parties to clear their schedules, prepare and be ready for trial. On a routine impaired driving case such as this, there should be at least a 30-day allowance for counsel to be ready for trial. That is properly characterized as inherent/neutral delay.

Fourth Alleged Error (The period between the last originally scheduled trial date of March 19, 2015 and the further date of June 19, 2015)

[26] The crown conceded that the three weeks between May 29, 2015 and June 19, 2015 were properly categorized as crown delay. However, the crown also submits that the trial judge erred in finding that institutional delay ran for three weeks from March 19, 2015.

[27] There was no suggestion that the failure to complete the trial in the first two scheduled trial dates was caused by the fault of either the crown or defence. In such a situation, institutional delay runs until the court can accommodate the parties. The first date offered by the court was March 27, 2015. The crown was available for that day but the defence was not. Thus, there should have been eight days apportioned to institutional delay and not the three weeks attributed by the trial judge.

Fifth Alleged Error

[28] The respondent did not bring the delay motion before the first trial dates in March of 2015. There was no specific allegation by the respondent of any specific prejudice attributed to unreasonable delay. The delay in this case was somewhat over the Morin guideline (which was not intended to be a limitation period in any event). The length of delay found by the trial judge was not such that any degree of prejudice could be inferred. The absence of proven or inferred prejudice becomes a factor in the overall balancing of interests.

Total Institutional Delay

[29] The trial judge erred in not attributing a further two months and one week of inherent/neutral rather than institutional delay. Based on that, the total institutional/crown delay would be eleven months to the end of trial.

Balancing of Interests

[30] Having concluded that the trial judge erred in calculating institutional/crown delay, I must then undertake my own analysis of whether there has been a violation of s. 11(b) of the Charter in this case. My analysis is based on my characterizations of the periods of delay that I have found were in error. I otherwise accept the findings of fact and characterizations of the trial judge. This leaves me in a position to reach my own conclusion at the balancing stage.

[31] The total institutional/crown delay is somewhat beyond the Morin guidelines and well below the presumptive ceiling enunciated in Jordan. There was no actual prejudice and the delay was not such that prejudice could be inferred. There is a significant societal interest in a trial on the merits for such charges. The onus rested with the respondent. I am not satisfied that a breach of s. 11(b) of the Charter has been proven.

[32] RESULT: the appeal is allowed. A new trial is ordered before a different judge of the Ontario Court of Justice.

B.P. O’Marra J. Released: August 5, 2016