Court File and Parties

Court File No.: Halton, 10-3390 Date: 2012-03-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Daniel McBride

Before: Justice Stephen D. Brown

Heard on: November 30, 2011

Ruling on 11(b) Application released on: March 8, 2012

Counsel:

• Emily Pecorella, for the Crown
• Douglas Lent, for the accused Daniel McBride

S.D. Brown, J.:

[1] This is a ruling on a stay of proceedings application brought by the defendant and argued before me.

1. Factual Background

[2] The defendant, Daniel McBride, on October 23, 2010, was charged with operating a motor vehicle with greater than 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code. He was stopped in a RIDE spot check.

[3] The following is the chronology of the events:

• October 23, 2010 - applicant arrested and released on a promise to appear.
• October 26, 2010 - the Information is sworn.
• November 15, 2010 - 1st appearance. Applicant has retained counsel and receives disclosure and designation of counsel filed. Matter remanded to November 29, 2010 to review disclosure.
• November 29, 2010 - 2nd appearance. Trial date set for August 12, 2011 – this was the first trial date that was offered.
• August 12, 2011 - defendant appears for trial but matter not reached - adjourned to November 30, 2011 for trial.

2. Analysis

[4] Courts have, since R. v. Morin, [1992] 1 S.C.R. 771, been instructed to apply the section 11(b) principle flexibly, taking into account several required factors. The factors that have to be balanced can be set out as follows:

• The length of the delay;
• Waiver of any time periods;
• The reasons for the delay, including
  • the inherent time requirements of the case,
  • actions of the accused,
  • actions of the Crown,
  • limits on institutional resources, and
  • any other reasons for the delay; and
• Prejudice to the accused.

[5] The principles to be applied in determining whether there has been a s. 11(b) violation were authoritatively stated many years ago in R. v. Morin, supra. The Supreme Court held that deciding whether a delay in bringing a case to trial has been unreasonable involves a balancing process that considers the rights that the section was intended to protect and the circumstances of the particular case. More recently, in R. v. Godin 2009 SCC 26, [2009] S.C.J. No. 26, Cromwell J., for the Court, stated at para. 18 as follows:

Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, [1992] 1 S.C.R. 771 at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay."

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

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

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

[7] The recent Ontario Court of Appeal decision in R. v. Tran and Vuong (2012) O.J. No. 83 (Ont. CA) which approved of the decision in R. v. Lahiry et al, 2011 ONSC 6780, [2011] O.J. No. 5071 (Ont. S.C.), was released after oral arguments were concluded, as well as the case of R. v. Sanderson [2012] O.J. No. 352 (OCJ), and I then asked counsel for any further submissions regarding these cases to be submitted by February 21, 2012. I received further written submissions from Mr. Lent on February 21, 2012 and none from the Crown.

[8] Keeping these factors in mind, the following analysis applies.

[9] Counsel both agree that the period from the swearing of the Information until the set date on November 29, 2010 when the first trial date was set, is neutral intake period. Both parties moved expeditiously to complete the necessary tasks such as retaining counsel and providing and reviewing disclosure, and having a pre-trial to be in a position to set a trial date at a relatively early stage. I calculate this neutral period to be 1 month and 4 days.

[10] The period from the setting of the first trial date to attendance at that trial, when the matter was not reached, is from November 29, 2010 until August 12, 2011 - a period that I calculate to be 257 days or 8 months and 15 days.

[11] The period of time from August 12, 2011 until November 30, 2011 is some 111 days or 3 months and 19 days.

[12] The total period from the swearing of the Information until the matter was reached for the second trial date was a period of 401 days or 13 months and 5 days, a period that is outside the guidelines for trial within a reasonable time, thereby warranting an enquiry.

[13] There is no waiver of any period on behalf of Mr. McBride, who proceeded expeditiously to retain counsel, selected the first available trial date and the next available trial date after that.

[14] The intake period of this case was done expeditiously by both parties and, of course, is neutral time in the analysis. Deducting that amount of time from the overall time frame, we then reduce the total time under scrutiny as institutional delay to a period of 12 months and one day.

[15] The period from the setting of the trial date on November 29, 2010 to the first trial date of 8 months and 15 days was described by the Crown in its factum as institutional delay, a classification that the defence agreed with.

[16] The inherent time requirements of this case are not exceptional and are basically run of the mill in this jurisdiction with one day set for a trial that includes Charter arguments under ss. 8, 10(a) and 10(b) of the Charter, and 5 witnesses anticipated to testify. There is no indication before me that this matter was underestimated in time.

[17] During oral argument, I brought to counsel's attention the Lahiry judgment that was released on November 16, 2011. Counsel for the Crown adopted the reasoning in Lahiry and submitted that a further period of time is to be deducted from this period and classified as neutral time in the analysis.

[18] Since that time, the Ontario Court of Appeal has approved of the reasoning in Lahiry in R. v. Tran, supra, so I thought that it was only fair to ask counsel for further submissions. Mr. Lent submitted further submissions by the deadline of February 21st and the Crown provided no further submissions.

[19] As Maund, J. indicated in R. v. Sanderson [2012] O.J. No. 352 (Ont. C.J.), a case where Mr. Lent made a similar argument:

6 There was considerable argument about the law in relation to the assessment of delay from set dates. Defence took the position that the recent decision of Justice Code of the Ontario Superior Court in R. v Lahiry et al 2011 ONSC 6780, [2011] O.J. No. 5071 was wrong in law. The Court was referred to cases where trial findings of the commencement of institutional delay from set date courts were accepted by appeal courts.

7 Since the decision of Lahiry, the Ontario Court of Appeal released its decision in R. v. Tran [2012] ONCA 18 on January 12th. I wrote to Crown and Defence to invite further submissions in relation to Tran. In further submissions, Mr. Lent argues that this Court is nevertheless still bound by prior authorities of both the Supreme Court of Canada and the Ontario Court of Appeal. While not explicitly stated the Defence position is that there are authorities which either can be distinguished or contradict the decision in Tran. Counsel relies on R. v. Godin 2009 SCC 26, [2009] S.C.J. No. 26 (SCC), R. v. Rego, [2005] O.J. No. 4768 (Ont.CA), R. v. Tar Singh and R. v. Henderson (Nov.18, 2003) (Ont.C.J.) (unreported) as well as reference therein to R. v. Morin 71 CCC (3d) (SCC), R. v. Sharma, [1992] 1 S.C.R. 814 (SCC) and R. v. Meisner [2003] O.J. No. 1948 (SCJ).

8 Respectfully, I disagree with the Defence. The principles set out by Justice Code in Lahiry have been explicitly affirmed by the Ontario Court of Appeal in Tran. Both decisions are binding upon this court. With great respect it would be an error in law, if not impertinent, for this trial Court to ignore binding authority which is directly on point. The Tran decision stands for the following proposition in relation to the reasons for delay, as set out in paragraph 32.

"... parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require 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."

[20] I agree with Justice Maund's comments in the above decision. However the Sanderson decision is distinguishable from this case on its facts. The Sanderson case experienced delay due in large part from the failure of the defence to obtain sufficient trial time to bring a constitutional challenge pursuant to s. 7 of the Charter. The underestimation of trial time present in Sanderson is not present in the case before me.

[21] As well, in Tran, the Court attributed defence counsel with delay due to failure to give notice of a s. 7 Charter application until two weeks before trial and not disclosing it at the pre-trial, resulting in inadequate time being set aside for trial and also allowing for 46 days to the judicial pre-trial as an inherent time requirement. These events do not occur in the case before me and are therefore distinguishable. Further, in the cases of Tran and Sanderson, at the initial set date, the trial co-ordinator offered earlier dates for trial that the defence was not available for. In Mr. McBride's case, no earlier dates than August 12, 2011 were offered by the trial coordinator and Mr. Lent took the first trial date that was offered.

[22] In the Tran decision, the Court allowed for inherent time requirements to be attributable to "unforeseen developments during the trial" (i.e. additional witnesses were called). In this case, there were no "unforeseen developments" other than the fact that the Crown chose to prioritize other matters over Mr. McBride's on the first trial date.

[23] Further in Tran, the Court considered the second segment of time between the first and the second trial dates to be neutral time, due to inadequate estimate of trial time by counsel, which is not the case here.

[24] When assessing the period between the set date and the first trial date, one must take into account the time required by counsel to clear their schedule and to prepare for the hearing. This becomes particularly problematic when the set date appearances pre-date Lahiry et al and were run according to the then somewhat lax procedure of counsel taking the trial date offered and then indicating that counsel had earlier trial dates without specifying the earlier dates.

[25] For instance, the transcript of this matter indicates that on November 29, 2010, the date of August 12, 2011 was offered and agent for Mr. Lent accepted that date and said that Mr. Lent "did have earlier dates beginning in December 2010."

[26] Notwithstanding this, there is no statement on the record when both parties would have been ready to proceed with a trial except for this vague reference. One does note that Mr. Lent filed his usual boilerplate Charter application to exclude evidence on July 26, 2011 and the Crown reply was filed August 9, 2011. Without any further evidence, I must simply attribute a reasonable period to be deducted from the period between the set date and the first trial date to be deducted from the institutional delay.

[27] In all of the circumstances, I am of the view that a period of one month would be an appropriate deduction in this case. Therefore, the institutional delay between the setting of the trial date and the first trial date will be 7 months and 15 days to be used in this analysis.

[28] On August 12, 2011, Mr. Lent and his client appeared for trial but the matter was unable to be reached as a result of the sorely overbooked state of the list. A continuing trial had been scheduled for that day and the matter simply could not be reached. As well, there was a judgment set for that day that took approximately one hour to give and another case that was scheduled for one half of a day, together with this case that was set for one full day. The matter that was set for one half of a day was able to be traversed to another available court, otherwise, it too would not have been reached in my court on that date.

[29] Although Mr. Lent waited until after the luncheon recess, it was apparent that the applicant's trial was not going to be reached so it was adjourned until November 30, 2011.

[30] Earlier dates were offered for August 30th, but Crown and defence were not available; October 17th when the Crown was available but Mr. Lent was not; and November 2nd when the Crown was available but Mr. Lent was not.

[31] Mr. Lent put on the record that he was available for trial on October 12th, 13th and 14th and November 4th and 22nd, but no court time was available for the matter on those dates.

[32] The Crown argues that the running of the institutional clock should stop on October 17th when the court had time and the Crown was available to proceed, but Mr. Lent was not. Mr. Lent argues that the whole time attributable from the first trial date to the second should enter the equation as institutional time to be counted against the Crown.

[33] The Supreme Court of Canada in R. v. Godin 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.) considered a delay period when the first trial date did not have enough time to complete the trial because the matter was not reached until well into the afternoon as a result of other matters on the court docket. In assessing that period, Cromwell, J., writing for the Court, assessed the 4 ½ months delay after the trial was not concluded on the first date as institutional delay with no deductions for inherent time requirements, preparation time or concerns about defence counsel's unavailability.

[34] Taking into account that Mr. Lent and the Crown were not available for a continuation on August 30th, Mr. Lent was not available on October 17th and November 2nd, but the Crown was, and it was not until November 30th that both parties were available, I am of the view that the entire period from the first trial date to the second should be attributed to institutional delay in this matter - a period from August 12, 2011 to November 30, 2011 - which is a total of 110 days or 3 months and 18 days.

[35] Adding that to the 7½ months of institutional delay from the first set date to the first trial date, we are left with a total period of institutional delay of 11 months.

[36] This is an amount of time that is just slightly outside the 8 to 10 month guidelines as set out in R. v. Morin, supra. Accordingly, prejudice to the accused, either inferred or actual, plays a vital role in the balancing process. I am mindful that the 8 to 10 months guideline is just that, a guideline and not a limitation period; one that can be expanded or contracted depending on the circumstances of each individual case.

[37] Mr. McBride filed an affidavit on this motion. The Crown elected not to cross-examine on this affidavit.

[38] In the affidavit, he indicates that upon first attendance at Mr. Lent's office, he was advised of the minimum penalties and the costs associated with the alcohol interlock device. This was something that I accept adds to a person's stress level when one is facing a charge such as this, but is as a result of being charged, not of the delay.

[39] Mr. McBride states that he is employed in the entertainment promotion industry and requires his driver's license for the viable and successful continuation of his employment. I accept that but, again, it is part of the inherent prejudice of being charged with the offence, as opposed to any actual prejudice caused by the delay.

[40] He further asserts that he has been on an emotional roller coaster ride as a result of two trial dates and this has exacerbated the emotional stress that he has suffered, and that he has had to pay significantly more to have his counsel attend for two trial dates as opposed to one. This I accept as being some evidence of actual prejudice. The requirement of having to pay not one but two counsel fees can be an onerous one, and, the emotional stress of having to prepare oneself for a trial, only to be told on that trial date that the Crown has decided to prioritize other matters, can be particularly stressful.

[41] In this case, no attempt was made to contact the defence to indicate that there had been a continuation date added to the list that was going to be given priority to Mr. McBride's case.

[42] The "fly in the ointment" of this case is the case that took priority over Mr. McBride's on August 12, 2011. That case, R. v. Glynn, involved an allegation of domestic assault involving no injuries and breach of an undertaking with offence dates of March 6th and 7th, 2010. A brief history of that case is warranted in this analysis.

[43] Ms. Glynn's trial was scheduled originally to be heard on two days, March 7 and 8, 2010. The trial did not commence until March 8th. After the first trial date, she discharged her second lawyer. She was then unrepresented and a s. 486.3 order issued on June 1, 2011.

[44] The trial was scheduled to continue on August 12, 2011 and it is this trial that took precedence over Mr. McBride's trial.

[45] That trial was essentially parachuted onto the list that Mr. McBride had claimed when he set his trial date on November 29, 2010. That trial still continues in these courts on its tortuous journey to conclusion, with an unrepresented accused, alleging police and Crown misconduct, and has turned into a fractious and protracted hearing that has now taken up approximately six days of trial time, an allotment that was three times its original estimate.

[46] It is this case that the Crown had decided to prioritize over the case of Mr. McBride.

[47] The problem of adding continuing trials to already full lists is reaching crisis proportions in this jurisdiction. To put it bluntly, we are about to experience another Askov apocalypse in Halton Region if further resources are not dedicated immediately. This is not the fault of our resourceful and extremely competent trial co-ordinator, but it is simply a result of institutional resources in this jurisdiction being stretched to the breaking point. We are presently the fastest growing municipality in Canada and have been experiencing exponential growth over the past decade.

[48] Our judicial resources have not been increased for over seven (7) years.

[49] The most current statistics available from the trial coordinator show that the five full time criminal court judges in this jurisdiction in 2011 carried between 66 to 102 criminal proceedings each. Additionally, trials that were one day or less, ranged from 89 to 99 for each judge. Plea courts, Provincial Offences Appeal courts and Judicial Pre-trial courts took up a block of between 24 to 58 juridical days for each judge.

[50] Our capable and hardworking colleagues who preside over family and criminal cases are, as well, overburdened and overwhelmed by the unprecedented growth in our region over the last decade.

[51] We do not have the luxury of Superior Court judges who can have matters continue on a daily basis until they are completed. If our trials expand in time due to underestimation of time by counsel or other unforeseen events, we must scramble for trial time that just does not exist, so we artificially pile continuations onto trial lists that have been established, sometimes ten months previously, with the hope that something will collapse.

[52] That is what happened in this case. The Glynn matter was added into an already grossly overbooked trial list in the hope that something would fold. It didn't. The Crown chose to prioritize an unrepresented accused over an accused that had retained counsel. That is their prerogative but, as judges, we must look at each case appearing before us as being the most important case to that individual accused.

[53] The very difficult decision that each Crown makes on a day such as this, to proceed with one case knowing that another will not be reached, is a fine art of prioritizing seriousness of the offence, length of delay, strength of the case and a myriad of other considerations. I do not envy them in that task. They too are constrained by the limitations of resources in our system and must make hard decisions that may result in a valid criminal charge against an innocent victim being dismissed for delay.

[54] As our limited resources in Halton become stretched even further, these decisions will become more difficult. As well, and more importantly, people charged with serious criminal offences, the outcome of which for them can be life altering, will languish in a system begging for resources.

[55] Victims of serious criminal offences will see their cases dismissed for delay, another wound inflicted on them by the lack of resources in this region.

[56] The public will not be protected, but will be endangered. Perpetrators of offences will not be brought to justice and sentenced accordingly, if found guilty, after a trial on the merits of the offence, but will avoid responsibility, based on the inability of the judicial resources in this region to meet the explosive population growth and the attendant increase in charges laid and the ever increasing complexity of the charges, resulting in trials that consume days of court time when a decade ago, they may have consumed mere hours.

[57] This crisis has been increasing in my experience since my appointment to this region in 2006. It will not go away, it will only worsen. This is inevitable considering the explosive population growth of Halton Region. Let the Ministries that fund and operate the various arms of our court system be forewarned. Failure to increase judicial and physical resources to match the growing population will quite possibly result in a flood of delay applications being granted.

[58] Turning back to the case at bar, Mr. Lent submitted a further unreported case to me of Botham, J. in R. v. Weatherby (Ont. C.J.) released January 27, 2012 in a case that closely resembles this one in time taken to get to trial and in the prejudice asserted. In that case, Mr. Weatherby's trial was not given priority and, as such, it was not started until later in the day and it had to be adjourned to a later date to complete.

[59] In that case, Justice Botham stated on page 10:

In determining whether Mr. Weatherby has been prejudiced by the delay in bringing his matter to trial, I acknowledge that there is inherent prejudice by all persons awaiting their trial. The prejudice is inferred and requires no evidentiary foundation. The longer wait to trial, the more serious the inferred prejudice. As the delay to trial increases, what might initially have been prejudice arising from the fact of being charged, such as shame and anxiety, may become aggravated.

The fact that the prejudice is inferred, rather than specific, does not reduce the significance of it in assessing the reasonableness of the delay. Depending on the facts of the specific case the inference of prejudice may be negated by evidence of a desire by an accused person to delay or avoid a trial on its merits.

There is no evidence that the applicant has been anything but diligent in bringing this matter to trial. He asserts that he has been specifically prejudiced by the delay in this matter. He has had to retain counsel for two days and is concerned about the impairment of the recollection of witnesses by the passage of time.

Except for the theoretical inference that can be drawn at to the impairment of memory as time proceeds, there is no actual evidence before me that the applicant's ability to defend the case has been hampered by frailties in any of the witnesses' memories. There is no evidence that defence witnesses are going to be called. The prosecution's case consists largely of police observations, which were reduced to writing at the time of the investigation, as well as breath results generated from a machine and the interaction in the breath room has been videotaped.

I do accept, however, that in this particular case Mr. Weatherby finds himself in a position where rather than retaining counsel for a one-day trial, he has had to incur further legal expenses as a result of a scarcity of judicial resources which effectively has converted a one-day trial into two.

[60] In that case, Her Honour stayed proceedings when there was a similar period of delay as in this case.

[61] When balancing society's interest in an adjudication of the issues by a trial on the merits, as opposed to the accused's rights under s. 11(b), I am of the view that the defence has met the burden of proving, on a balance of probabilities, a delay of such a length that Mr. McBride's rights under s. 11(b) have been violated.

[62] I realize that society has a right and an expectation that serious charges such as this will be tried and resolved on their merits, but that must be balanced with the accused's right to a trial within a reasonable time.

[63] Balancing all of the above, the motion is allowed and the charge is stayed.

Released: March 8, 2012

Justice Stephen D. Brown