COURT FILE No.: Halton - Milton 1260-1649263A

DATE: 2012·01·03

Citation: R. v. Sran, 2012 ONCJ 19

ONTARIO COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

— AND —

Lajpaul Singh Sran

Before Justice of the Peace Kenneth W. Dechert

Heard on January 26^th, 2011 and October 4^th, 2011

Reasons for Judgment released on January 3^rd, 2012

Provincial Offences Court – Milton, Ontario and Burlington, Ontario

J. Stewart .......................................................................................................... for the prosecution

L. Carter ............................................................................... for the defendant Lajpaul Singh Sran

RULING ON THE DEFENDANT’S APPLICATION UNDER SUBSECTIONS 11(b) and 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Statutes, Regulations and Rules cited:

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, ss. 11(b), s. 14 and ss. 24(1);

Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, s. 109;

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to October 23^rd, 2009, s. 130;

Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to October 23^rd, 2009, Part I, Part III; ss. 3(1) and ss. 5.1(3).

Cases cited:

Barker v. Wingo, 407 U.S. 514 (1972);

Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863 (S.C.C.);

Regina ex. rel. City of Toronto v. Andrade, 2011 ONCJ 470 (Ont. C.J.);

Regina v. Askov, et. al., 1990 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.);

Regina v. Aujla, 2010 ONCJ 531 (Ont. C.J.);

Regina v. Beason (1983), 1983 1873 (ON CA), 36 C.R. (3d) 73 (Ont. C.A.);

Regina v. Bennett, 1991 2701 (ON CA), [1991] O.J. No. 884 (Ont. C.A.);

Regina v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659 (S.C.C.);

Regina v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.);

Regina v. Harrison, [1991] O.J. No. 881 (Ont. C.A.);

Regina v. Hussain, [2005] O.J. No. 158 (Ont. C.J.);

Regina v. Kalanj, [1989] 1 S.C.R/. 1594 (S.C.C.);

Regina v. Liang, 2011 ONCJ 458 (Ont. C.J.);

Regina v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 (S.C.C.);

Regina v. N.N.M., 2006 14957 (ON CA), [2006] O.J. No. 1802 (Ont. C.A.);

Regina v. Omarzadah, [2004] O.J. No. 2212(Ont. C.A.);

Regina v. Qureshi, et. al., 2004 40657 (ON CA), [2004] O.J. No. 4711 (Ont. C.A.);

Regina v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588 (S.C.C.);

Regina v. Rowan, 2004 ONCJ 153, [2004] O.J. No. 3504 (Ont. C.J.);

Regina v. Smith, 1989 27 (SCC), [1989] 2 S.C.R. 368 (S.C.C.);

Regina v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120 (S.C.C.);

Regina v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435 (S.C.C.).

K.W. DECHERT, J.P. (orally)

INTRODUCTION

[1] Under Certificate of Offence no. 1260-1649263A, the defendant Lajpaul Singh Sran, stands charged that he on the 23^rd day of October, 2009 at 3:30 p.m. at Trafalgar Road and Steeles Avenue in the Town of Halton Hills, did commit the offence of careless driving, contrary to section 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to October 23^rd, 2009, hereinafter referred to as “the H.T.A.”[^1]. The defendant was charged by means of a certificate of offence. Accordingly, the procedure under Part 1 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to October 23^rd, 2009, hereinafter referred to as “the P.O.A.”[^2], is applicable in this proceeding.

[2] The trial of the charge began before me on January 26^th, 2011, during the 9:00 a.m. tier of cases, in the Milton Provincial Offences Court. Upon arraignment on the subject charge, the defendant entered a plea of not guilty. I then became seized with the trial of the matter. During the court proceedings of January 26^th, 2011, the defendant was assisted by a court-appointed interpreter in the Punjabi language.

[3] Following the arraignment, I began to consider the defendant’s application under subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, hereinafter referred to as “the Charter”. At that time, both the defendant’s representative and the prosecutor advised that they did not wish to proffer any viva voce evidence relative to the application. In considering the merits of the application, I took judicial notice of the subject certificate of offence, the defendant’s “Notice of Intention to Appear”, dated October 28^th, 2009, the “Notice of Trial” issued out of the Milton Provincial Offences Court on November 26^th, 2009, the transcript of the proceedings in this matter of July 13^th, 2010, as well as certain other facts which were received with the consent of the parties.

[4] The defendant’s representative advised that she was not seeking to adduce any evidence related to the issue of any prejudice which might have been suffered by the defendant as a result of the alleged unreasonable delay in the completion of the trial in this matter. The representative advised that she was relying on the contention that such prejudice could be inferred from the length of the delay.

[5] The defendant’s representative completed her submissions relative to the Charter application on January 26^th, 2011. The trial, including the continuation of the hearing of the subject application, was then adjourned to October 4^th, 2011 at 9:00 a.m., in the Milton Provincial Offences Court.

[6] On October 4^th, 2011, I received the prosecutor’s submissions pertaining to the Charter application as well as the submissions of the defendant’ representative in reply. The hearing of the application was then adjourned to January 3^rd, 2012 at 9:00 a.m. in the Burlington Provincial Offences Court, for my judgment. At the same time, the evidentiary phase of the trial was adjourned to January 9^th, 2012 at 9:00 a.m. in the Burlington Provincial Offences Court.

[7] The prosecution was represented by Ms. J. Stewart. The defendant was represented by his legal representative, Ms. L. Carter.

THE DEFENDANT’S NOTICE OF CONSTITUTIONAL QUESTION

[8] In a Notice of Constitutional Question dated December 6^th, 2010, prepared in accordance with the provisions of section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended, hereinafter referred to as “the C.J.A.”, the defendant Lajpaul Singh Sran advised that the application was made under subsections 11(b) and 24(1) of the Charter. The notice was served on the Attorney General of Canada and on the Attorney General of Ontario, by means of facsimile transmission on December 9^th, 2010. It was served upon the office of the Prosecutor for the City of Burlington and subsequently filed with the Provincial Offences Court for the Regional Municipality of Halton on December 20^th, 2010.

[9] In the Notice of Constitutional Question, the defendant/applicant stated, in part as follows:

The Applicant intends to claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Ontario.

The question is to be argued on January 26^th, 2011, at 9:00 a.m., at 100 Nipissing Road, Unit 2, Rm. #1, Milton [Milton Provincial Offences Court].

The following are the material facts giving rise to the constitutional question:

1. The Applicant was charged on October 23^rd, 2009, with the following offence(s):

Careless Driving, HTA, s.130, 1260-1649263A

A Notice of Trial was issued November 26, 2009, and disclosure obtained May 17, 2010.

2. The matter was originally scheduled for trial on July 13^th, 2010, the court appointed interpreter, which was properly requested on the notice of intention to appear for trial, attended however was required in Criminal Court in Mississauga for 10 a.m. and unavailable for this court. A new trial date of January 26, 2011 was selected. (Transcripts attached)

3. The overall delay from the date the charge was laid and the currently scheduled trial date is 15 months and 3 days which is prima facie unreasonable and accordingly a section 11(b) inquiry is warranted.

4. At no time did the Applicant waive the constitutionally protected right to a trial within a reasonable time.

5. The delay in this matter is the direct result of a lack of institutional resources of the availability of court appointed certified interpreter (sic) in this jurisdiction.

[10] As stated above, the trial of the subject charge against the defendant commenced with his arraignment on January 26^th, 2011. At that time, the Court embarked on the hearing of the defendant’s Charter application. The trial, including the hearing of the application, continued on October 4^th, 2011 following which time it was adjourned to January 3^rd, 2012, for my judgment. The evidentiary phase of the trial was adjourned to January 9^th, 2012.

[11] In considering the subject application, I have taken judicial notice of the fact that the total length of the delay in the actual commencement of the evidentiary phase of the trial in this matter is 26 months and 6 days. This period of time is calculated from November 3^rd, 2009, when the defendant filed his “Notice of Intention to Appear” with the Halton Provincial Offences Court until January 9^th, 2012, being the anticipated trial completion date.

THE EVIDENCE

[12] According to the Certificate of Offence in this matter, the defendant was served with an Offence Notice pertaining to the subject charge on October 23^rd, 2009. The subject Certificate of Offence was filed with the Provincial Offences Court located at 100 Nipissing Road, Unit 2, Milton, Ontario, on October 26^th, 2009. The Certificate indicates that the allegation of careless driving involved a motor vehicle collision.

[13] The defendant completed a “Notice of Intention to Appear” relative to the subject charge on October 28^th, 2009. The Notice was filed with the Provincial Offences Office in Mississauga, Ontario on the said date.

[14] According to a stamp on the face of the said document, the said Notice was filed with “Halton Court Services” being the Provincial Offences Court for the Regional Municipality of Halton, on November 3^rd, 2009. In the said Notice of Intention to Appear, the defendant set forth his address in Oakville, Ontario, advised that he intended to challenge the Provincial Offences Officer’s evidence and requested that the officer attend the trial. Furthermore, in the said Notice, the defendant made the following further statements:

I intend to appear in court to enter a plea at the time and place set for the trial and I wish that it be held in the English language. I request a Punjabi language interpreter for the trial.

[15] On November 26^th, 2009, the Clerk of the Milton Provincial Offences Court issued a “Notice of Trial” in this proceeding to the defendant at his address in Oakville, Ontario. In the said Notice, the Clerk advised the defendant that the trial of the subject careless driving offence had been scheduled for July 13^th, 2010 at 9:00 a.m. in the Ontario Court of Justice located at 100 Nipissing Road, Unit #2, Milton, Ontario. The Clerk certified that on November 26^th, 2009, a copy of the Notice had been sent by mail to both the defendant and the prosecutor.

[16] The proceedings of July 13^th, 2010 in this matter are fully set out in a transcript of that date. The defendant filed the transcript with the Court as evidence in support of his Charter application.

[17] On Tuesday, July 13^th, 2010, during the morning tier of cases, the defendant att ended in the Milton Provincial Offences Court before Her Worship Justice of the Peace M. Farnand for purposes of the trial of the subject careless driving charge. At that time, the defendant was represented by Ms. L. Carter and the prosecution was represented by Ms. A. Senkus.

[18] The trial did not proceed on the said date. The prosecutor sought an adjournment of the trial as the Punjabi language interpreter who had been scheduled by the provincial offences court administration for 9:00 a.m. on the subject date, had also been booked to provide interpretation services in Criminal Court in Mississauga, Ontario at 10:00 a.m. that morning. Accordingly, the interpreter left the provincial offences court in Milton to attend the Criminal Court in Mississauga, prior to the commencement of the trial of the defendant’s charge. The prosecutor then applied for an adjournment of the subject proceeding.

[19] The transcript of the proceedings of July 13^th, 2010, reads as follows:

Ms. Senkus: If we could start with Lajpaul Sran? It appears at number 18 on the docket.

Ms. Carter: Your Worship, for the record it’s Carter, initial ‘L’ and Mr. Sran is before the Court. Mr. Sran is in need of an interpreter which I will let me friend speak to you on and so as such I will just be identifying him.

The Court: Okay.

Ms. Carter: Can you tell the Court your name?

Mr. Sran: Lajpaul Sran.

Ms. Senkus: Your Worship, a Punjabi interpreter was present this morning. I neglected to get her name, although I think Madam Clerk signed her interpreter slip. The main point being that she only advised me when we took the recess that she needs to be in Mississauga for criminal court at 10:00, as a result, Ms. Carter and I approximately 10 minutes ago or so indicated to her that we would be indicating to the Court that she does have to leave. That unfortunately – that puts the prosecution into a position where we need to ask for an adjournment as the defendant indicates, and Ms. Carter indicates the defendant does require the interpreter. As a result, I do have all my witnesses here; two civilians as well as the police officer. However, that is the circumstance that I am dealt with today. As a result, I am seeking an adjournment.

The Court: Okay, well, we absolutely cannot proceed without an interpreter.

Ms. Carter: That’s my concern, Your Worship. I do want to put on record that we are not waiving my client’s rights and that court scheduling, regardless of whether it’s time within the court or interpreter’s availability and things of that sort, are certainly no detriment to the court, however, they are prejudice to my client.

The Court: Okay, thank you. And a suggested date to return?

Court Clerk: The first available date is January 19^th.

Ms. Carter: January 19^th?

Ms. Senkus: Could the officer come forward? I’m getting an indication that one of the civilian witnesses is not available.

Ms. Carter: That’s agreeable for us, Your Worship, as best as I can make out with Mr. Sran.

Ms. Senkus: Is January 26^th available or the 25^th?

Court Clerk: January 26^th is available.

Ms. Carter: Twenty-sixth?

Ms. Senkus: Is the 25^th available?

Ms. Carter: That’s agreeable.

Court Clerk: No.

Ms. Senkus: Can you come forward, please? If I may have a moment, Your Worship? January 26^th is agreeable.

Ms. Carter: That is, Your Worship.

The Court: January 26^th, 2011, 9:00 a.m., this court, it’s marked as the prosecution request.

Ms. Carter: Thank you.

Court Clerk: And Your Worship, could I inquire as to how many witnesses in total there will be?

Ms. Senkus: For the prosecution; two civilians and an officer.

Ms. Carter: And the defendant will be testifying.

Court Clerk: Okay.

The Court: Okay, And a Punjabi interpreter will be available that day, Madam Clerk?

Court Clerk: Thank you.

Ms. Senkus: And thank you to the witnesses for coming today.

Ms. Carter: You’re free to go if you want to wait for me in the hallway, okay? Thank you, Your Worship.

The Court: Thank you.

CHRONOLOGY OF EVENTS

[20] October 23^rd, 2009: The defendant is served with an Offence Notice relative to Certificate of Offence no. 1260-1649263A, pertaining to allegations against him of careless driving of that date.

[21] October 26^th, 2009: Certificate of Offence no. 1260-1649263A is filed in the Ontario Court of Justice, P.O.A. Office at 100 Nipissing Road, Unit 2, Milton, Ontario.

[22] October 28^th, 2009: The defendant prepares a Notice of Intention to Appear relative to Certificate of Offence no. 1260-1649263A and files it in the Provincial Offences Office in Mississauga, Ontario.

[23] November 3^rd, 2009: The Notice of Intention to Appear which was filed in the Provincial Offences Office in Mississauga, Ontario is transferred to and filed with “Halton Court Services” being the Provincial Offences Court for the Regional Municipality of Halton.

[24] November 26^th, 2009: The Clerk of the Milton Provincial Offences Court issues a Notice of Trial to the defendant advising him that his trial in respect of the subject careless driving charge would take place on July 13^th, 2010, at 9:00 a.m. in the Ontario Court of Justice, located at 100 Nipissing Road, Unit 2, Milton, Ontario, court room number 1. The Clerk of the Court certifies that a copy of the Notice of Trial was sent by mail to both the defendant and to the prosecutor on November 26^th, 2009.

[25] July 13^th, 2010 - the first trial date: The defendant attends the Milton Provincial Offences Court with his representative, ready to proceed with the trial. The prosecutor indicates that her witnesses (two civilians and one police officer) are in attendance and that in that regard, she is ready to proceed with the trial.

[26] July 13^th, 2010 – continued: The prosecutor advises the presiding judicial officer, Justice of the Peace M. Farnand, that the Punjabi language interpreter who had been booked by court administration to assist the defendant during the trial, had arrived prior to the commencement of court at 9:00 a.m., but had to leave to provide interpretation services in Criminal Court in Mississauga, Ontario at 10:00 a.m. The prosecutor then applies for an adjournment of the trial due to the unavailability of the interpreter.

[27] July 13^th, 2010 – continued: The Court grants the prosecutor’s application for adjournment and the trial is then adjourned to the earliest date which is available to both the Court and to the prosecution witnesses; being January 26^th, 2011, in the Milton Provincial Offences Court. The defendant’s representative is content with the proposed date but states that the defendant is not waiving his rights, noting that her client is prejudiced by the adjournment.

[28] December 6^th, 2010: The defendant’s representative prepares a Notice of Constitutional Question in this matter, returnable on January 26^th, 2011 at 9:00 a.m. in the Milton Provincial Offences Court, stating that the defendant’s right to be tried in a reasonable time in respect of the subject offence under subsection 11(b) of the Charter, has been infringed and claiming a remedy by way of a stay of the subject proceedings under subsection 24(1) of the Charter.

[29] December 9^th, 2010: The defendant’s representative serves a true copy of the Notice of Constitutional Question on the each of the offices of the Attorney General of Canada and the Attorney General of Ontario, by means of facsimile transmission.

[30] December 20^th, 2010: The defendant’s representative effects personal service of the Notice of Constitutional Question on the office of the Prosecutor for the City of Burlington and then files the said notice together with proof of service thereof with the Provincial Offences Court for the Regional Municipality of Halton.

[31] January 26^th, 2011 – the second trial date: The defendant appears before me in the Milton Provincial Offences Court for purposes of his trial commencing during the 9:00 a.m. tier of cases. The defendant’s representative advises that she is prepared to proceed with her client’s application under subsections 11(b) and 24(1) of the Charter.

[32] January 26^th, 2011 – continued: The defendant is arraigned on the subject charge of careless driving. He enters a plea of not guilty before me. I am now constituted as a court of competent jurisdiction for purposes of considering the defendant’s application under the Charter. I receive legal submissions from the defendant’s representative relative to the application. The hearing of the defendant’s application continues for a period of approximately two hours over part of the morning tier of cases.

[33] January 26^th, 2011 – continued: The defendant’s representative completes her legal submissions at approximately 12:34 p.m. and the matter is then adjourned by the Court, due to lack of time, to October 4^th, 2011 at 9:00 a.m. in the Milton Provincial Offences Court, for the continuation of the hearing of the application and the commencement of the evidentiary phase of the trial. The said date represents the earliest date available to the court administration, the prosecution witnesses and I, which would accommodate approximately two and one-half hours of trial time. The court administration advises that the court facility was available for the continuation of this matter on February 22^nd, 2011 however; I was not available on that date.

[34] January 26^th, 2011 – continued: The defendant’s representative acknowledges the proposed adjournment date. While acknowledging the date for the continuation of the proceeding, and acceding to that date, the defendant’s representative states that the defendant is not waiving any of his rights in this matter.

[35] October 4^th, 2011 - the third trial date: On this occasion I receive further legal submissions pertaining to the defendant’s Charter application from both the prosecutor and from the defendant’s representative in reply, during the period between 10:39 a.m. and 12:37 p.m. The hearing of the Charter application is then completed. The proceeding is then adjourned due to lack of time to January 3^rd, 2012, at 9:00 a.m. in the Burlington Provincial Offences Court for my judgment on the Charter application and to January 9^th, 2012 at 9:00 a.m. in the Burlington Provincial Offences Court for the commencement of the evidentiary phase of the trial in this proceeding.

THE LAW

Canadian Charter of Rights and Freedoms

[36] The following portions of the Charter are relevant to the defendant’s application herein:

ss. 11(b) Any person charged with an offence has the right… (b) to be tried within a reasonable time.

s. 14 A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

ss. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Relevant Common Law

[37] In the case at bar, the defendant stands charged with the offence of careless driving, which is being prosecuted under the procedure codified in Part I of the P.O.A. Accordingly, the comments made by Doherty J.A. in paragraph 3 of his endorsement decision in Regina v. Omarzadah, [2004] O.J. No. 2212 (Ont. C.A.), are apposite. In denying the prosecution application for leave to appeal a decision of a provincial offences appeals court, which granted a stay of proceedings in circumstances where a Part I prosecution for a speeding offence took 14 months to be tried, Mr. Justice Doherty stated, in part, as follows:

The applicant is concerned that the reasons below will be taken as establishing a six-month guideline for prosecutions under Part 1 of the POA. The applicant is concerned that delays beyond six months will be treated as presumptively unconstitutional. The reasons below should not be read as authority for that proposition. The analysis of s. 11(b) provided in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 applies to POA prosecutions. To the extent that guidelines are helpful where s. 11(b) claims are advanced in prosecutions under Part I of the POA, the R. v. Morin summary conviction guidelines should govern. Even those guidelines, however, should not necessarily be strictly applied. It must be acknowledged that any ‘stigma’ arising out of the delay in the trial of charges like speeding is virtually non-existent. In allocating finite resources, the state is entitled to give some priority to the speedy resolution of more serious allegations.

[38] In his decision in Regina v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 (S.C.C.), Sopinka J. writing on behalf of the majority of the Court, defined the purpose of section 11(b) of the Charter in paragraphs 26-30 of his decision as follows:

The primary purpose of s. 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this Court. I will address each of these interests and their interaction.

The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 1983 1873 (ON CA), 36 C.R. (3d) 73 (Ont. C.A.): ‘Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused…’ In some cases, however, the accused has no interest in an early trial and society’s interest will not parallel that of the accused.

There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway [1989 66 (SCC), [1989] 1 S.C.R. 1659 (S.C.C.)], a majority of this Court recognized that the interests of the accused must be balanced by the interests of the society in law enforcement. This theme was picked up in Askov [1990 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.)], in the reasons of Cory J. who referred to ‘a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law’. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.

[39] In describing the general approach to be taken in determining whether an individual’s right to be tried within a reasonable time has been denied, Sopinka J. in Morin, supra. remarked that that the reasoning does not involve “the application of a mathematical or administrative formula”. He went on to state that a Court considering such an issue should engage in “a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay”. In this regard, the jurist determined that the following factors be considered in analyzing the reasonableness of the length of any particular delay in bringing the trial of a charge against an accused person to its completion:

1. the length of the delay;

2. waiver of time periods;

3. The reasons for the delay, including

(a) inherent time requirements of the case,

(b) actions of the accused,

(c) actions of the Crown,

(d) limits on institutional resources, and

(e) other reasons for the delay; and

4. prejudice to the accused.

[40] Mr. Justice Sopinka went on to define the judicial approach relative to the consideration of an accused person’s contention that his/her rights under subsection 11(b) of the Charter had been infringed, in paragraph 32 of Morin, supra., as follows

The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in light of other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11(b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.

[41] In commenting on the “role of the burden of proof” in section 11(b) applications, Mr. Justice Sopinka adopted the unanimous decision of the Supreme Court of Canada in Regina v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120 (S.C.C.), in finding that in an application for a judicial determination that an accused person’s subsection 11(b) rights had been violated, the “ultimate or legal burden of proof” would rest on the accused throughout.

[42] The Court in Smith, supra. stated, however, that “a case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it”. The Court noted that “although the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case”. In that regard the Court made the following comments:

…For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances. …

[43] In her decision in Regina v. Aujla, 2010 ONCJ 531 (Ont. C.J.), Zisman, J. succinctly defined the allocation of the burden of proof in applications under subsection 11(b), as follows:

The onus to establish a breach of section 11(b) is on the applicant. It is the Crown’s responsibility to ensure that trial proceedings are not unduly delayed.

[44] In his decision in Morin, supra. Sopinka J. defined each of the factors which he determined to be associated with an analysis of the reasonableness of any particular trial delay.

[45] In addressing the factor of the length of the delay, the said jurist stated that an inquiry into an allegation of unreasonable delay “should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness”. In this regard, he went on to state as follows:

If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unless the applicant is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice. If, for example, the applicant is in custody, a shorter period of delay will raise the issue.

[46] In his decision in Regina v. Rowan, 2004 ONCJ 153, [2004] O.J. No. 3504 (Ont. C.J.), Conacher, J.P. found that for purposes of prosecutions under Part I of the P.O.A., the length of the delay in bringing a charge against an accused to trial ought not to be calculated from the date of the offence onwards. In reaching that decision, the jurist reasoned as follows:

…Firstly, pursuant to s. 3(1) of the P.O.A., the offence does not become a matter for the Courts until the Certificate of Offence is filed with the court thereby initiating process on the charge. For reasons too numerous to detail here, an issuing officer or his police service may never file the Certificate with the court. As well, if the Certificate is not filed within 7 days of the offence date, the Rules of the Provincial Offences Court require the Clerk to refuse to accept the Certificate. In either instance, there would be no further process against the defendant. Secondly, the P.O.A. does not confer a presumptive right to a trial on an accused charged under Part I. An accused must proactively exercise the option pursuant to s. 5.1(3) of the P.O.A., and apply for a trial. The issue of a trial and hence the issue of a right to a trial within a reasonable time does not come alive until the defendant takes that action. Thirdly, in R. v. Morin (supra) Sopinka J. provided a guideline at page 778, stating, ‘the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial.’ The date of the charge is to be distinguished from the offence date. Again, the P.O.A. provides:

3(1) In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court.

…In Part I matters under the P.O.A. then, the date of the offence is not necessarily the ‘date of the charge’. The ‘date of the charge’ may be considered to be the date of the filing of the Certificate of Offence with the court. From that time forward there will be some form of disposition of the matter by the courts and the accused becomes actively liable to conviction and penalty.

In any event, and for the purposes of considering a s. 11(b) Charter application involving a Part I of the P.O.A. in most instances, this case in particular, the ‘clock’ starts with the filing of the Notice of Intention to Appear. As stated above, it is at that point that the issue of a trial comes alive in Part I matters. This date may be up to 45 days after the date of the alleged offence.

[47] In discussing the issue of waiver of time periods in Morin, supra., Sopinka J. stated that “if by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted”. He went on to state that “in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights”. He noted that waiver “requires advertence to the act of release rather than mere inadvertence”.

[48] The said jurist reasoned that waiver could be explicit or implicit. He stated, however, that if it is argued that an accused had implicitly waived his/her rights under subsection 11(b) for a certain time period, then the conduct of the accused must be such as to permit a reasonable inference to be drawn that the accused knew of the “s. 11(b) guarantee, understood its nature and [had] waived the right provided by that guarantee”.

[49] In paragraphs 40 to 60 of his decision in Morin, supra., Sopinka J. addressed the factor of the “reasons for the delay”, including the constituent elements of that factor, identified as “inherent time requirements”, “actions of the accused”, “actions of the Crown”, “limits on institutional resources” and “other reasons for delay”. In his introductory remarks pertaining to the factor of the reasons for the delay, he remarked as follows:

If the application by an accused is not resolved by reason of the principles of waiver, the court will have to consider the other explanations for delay. Some delay is inevitable. Courts are not in session day and night. Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare. Over and above these inherent time requirements of a case, time may be consumed to accommodate the prosecution or defence. Neither side, however, can rely on their own delay to support their respective positions. When a case is ready for trial a judge, courtroom or essential court staff may not be available and so the case cannot go on. This latter type of delay is referred to as institutional or systemic delay. …

[50] In analyzing the element of inherent time requirements, Mr. Justice Sopinka remarked that “all offences have certain inherent time requirements which inevitably lead to delay”. In that regard, the jurist noted that the parties to a trial of a case need time to prepare, stating that “all other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins”. The jurist noted that the inherent requirements of complex cases “will serve to excuse longer periods of delay than for cases which are less complex”. He went on to state that “account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case”.

[51] Sopinka J. submitted that “as well as the complexity of a case there are inherent requirements which are common to almost all cases”. He acknowledged that these requirements could be described as “intake requirements”. He noted that these requirements “consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc.” and that while all of these activities may not be necessary in a particular case, “each activity takes some amount of time”. The jurist reasoned that “as the number and complexity of these activities increase, so does the amount of delay that is reasonable”, and that “the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay”.

[52] Sopinka J. argued that the length of time necessary for the performance of intake activities for various categories of offences would be influenced by “local practices and conditions and should reflect that fact”. He opined that the “intake period” in a particular region would tend to be the same for most offences, suggesting that the period would likely fall “within a range of a certain number of weeks or months”.

[53] The issue of the reasonableness of the duration of an “intake period” in the context of an offence prosecuted under the procedure codified in Part I of the P.O.A., has been considered in two Ontario provincial offences appeal court decisions.

[54] In his endorsement decision in Regina v. Hussain, [2005] O.J. No. 158 (Ont. C.J.), Casey J. found that an “intake period” of “a little less than two months” was a reasonable period relative to offences against the accused of “failing to stop at a red light”, contrary to subsection 144(18) of the H.T.A. and “failing to have an insurance card”, contrary to section 3(1) of the Compulsory Automobile Insurance Act. In making that finding the jurist observed that in these specific Part I P.O.A. proceedings, the accused filed his Notice of Intention to Appear with the Provincial Offences Office of the Ontario Court of Justice on June 25^th, 2003 and that the said office sent a Notice of Trial to the accused on August 21^st, 2003. Mr. Justice Casey opined that the period of time between the said two dates (a period of approximately two months) “could be found to be a reasonable intake period”.

[55] Furthermore, in his decision in Regina ex. rel. City of Toronto v. Andrade, 2011 ONCJ 470 (Ont. C.J.), Libman J. undertook an extensive review of the issue of the appropriate length of an “intake period” in the context of Part I P.O.A. prosecutions in the City of Toronto. In the decision, Mr, Justice Libman declined to follow Mr. Justice Casey’s decision in Hussain, supra., relative to the “assessment of an appropriate intake period” for these types of prosecutions.

[56] After considering the evidence adduced on appeal as to the issue of the “intake period” and in particular the practices and procedures employed by the City of Toronto in processing certificates of offence and notices of intention to appear and in scheduling trial dates, the said jurist concluded, in part, as follows:

I am respectfully of the view, in assessing the merits of the positions put forward by both the appellant and the respondent as to a reasonable intake period, that each fails to fully take into account the legitimate concerns of the other, that is, the high volume of trial requests processed by the municipality in scheduling trials, and the defendant’s right to have a trial promptly scheduled with some consideration as to his/her individual interest and availability in the date and time selected for the proceedings.

That said, I see no reason why a reasonable intake period for a traffic ticket, as a general rule, should exceed a period between 30-45 days. An intake period in the lesser range of 30 days will be appropriate where the defendant acts promptly within the 15 day window to respond to his/her ticket and files the notice of intention to appear in court for trial, and the officer, in turn files the certificate of offence or offence notice expeditiously in the court office, thereby allowing court administration to have all the necessary documentation within days of the issuance of the ticket. An intake period in the outer range of 45 days will be appropriate where the defendant does not act until the latter part of the 15 day window to respond to his/her ticket and file[s] the notice of intention to appear in court for trial, or the officer does not file with dispatch the certificate of offence or offence notice in the court office, thereby causing court administration to wait a lengthier period before having all the necessary documentation to schedule a trial date.

In either case, an intake period or inherent time requirement of 30 to 45 days should result in provincial offences trials for minor offences being scheduled within approximately two months of the offence date. …

[57] In addressing the element of the actions of the accused in Morin, supra., Sopinka J. commenced his analysis by stating that “this aspect of the reasons for the delay should not be read as putting the ‘blame’ on the accused for certain portions of the delay”. The jurist stated that included in this element are “all actions taken by the accused which are voluntarily undertaken”. He noted that actions such as change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver and attacks on search warrants would fall into this category. He concluded his comments by stating that he “did not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable”.

[58] In his decision in Regina v. N.N.M., 2006 14957 (ON CA), [2006] O.J. No. 1802 (Ont. C.A.), Juriansz J.A. briefly addressed the issue of the effect of the delay in the trial proceedings occasioned by an application under subsection 11(b) of the Charter, made by an accused at the outset of trial. In that regard, Mr. Justice Juriansz made the following comments in paragraphs 64, 65, 66 and 67 of his decision:

I summarize what happened as follows. The state offered the respondent [the accused] a trial date in early June 2004, some twenty-six months after he was charged. Instead, he chose to set a trial date at the end of November 2004, some thirty-two months after he was charged. Then, he brought a s. 11(b) application that further delayed the trial and argued that the delay to the anticipated completion of the trial would be approximately thirty-seven months after the charges were laid.

The respondent, of course, was entitled to bring the s. 11(b) application. However, the adjournment it caused is attributable to the defence. It is not a question of fault or blame but rather recognition of the reason why the trial was adjourned. As Arbour J.A. said in R. v. Harrison, [1991] O.J. No. 881 (C.A.) in relation to a defence application to quash a committal to trial:

The respondent was entitled to move to quash his committals for trial, even if these motions required a postponement of the original trial date. However, he must then accept the reasonable delays that occur as a consequence of this additional step in the pre-trial process.

Of the period in excess of eleven months between May 31, 2004 and the anticipated end of trial on April 9, 2005, I would allocate nine months to the defence. Based on the Crown’s concession, I would allocate the two remaining months to inherent time required to deal with the s. 11(b) application, await the court’s decision, and to hold the trial.

Since neither the inherent time nor the defence delay count against the Crown, it is apparent that the s. 11(b) clock stopped running when the accused refused a trial date in early June 2004.

[59] In addressing the element of the actions of the Crown in Morin, supra., Sopinka J. noted that “as with the conduct of the accused, this factor does not serve to assign blame”. He stated that in respect of this element of the factor of the reasons for the delay, the actions under consideration include “adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc.”.

[60] In citing an example of such an action, Mr. Justice Sopinka made reference to his decision in Regina v. Smith, supra., where adjournments were sought by the Crown in order to have a particular investigating officer attend the trial. The jurist advised that in the decision he concluded that while there was nothing wrong with the Crown seeking such adjournments, the delays associated therewith could not be relied upon by the Crown to explain away delay that was otherwise unreasonable.

[61] In respect of the general issue of the effect of actions of either the accused or the Crown in adjourning criminal proceedings, in paragraph 23 of his decision in Regina v. N.N.M. supra., Juriansz J.A. opined as follows:

…In my view, the party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time. The Crown, in this case, was available promptly. The defence was not entitled to expect the Crown to be available on the first date it offered.

[62] In considering the element of the limits on institutional resources in Morin, supra., Sopinka J. began his analysis by making the following comments:

Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter. It was the major source of the delay in Askov [supra.]. As I have stated, this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11(b) was either conceived or in which it operates. We live in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11(b), account must be taken of this fact of life. …

[63] In analyzing the issue of how the courts are to reconcile the demand that trials are to be held within a reasonable period of time “in the imperfect world of scarce resources”, Mr. Justice Sopinka stated, in part as follows:

…While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11(b) meaningless. The Court cannot simply accede to the government’s allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. This period of time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. …

The purpose of the suggested period was not therefore that it was to be treated as a limitation period and inflexible. The purpose in expressing a guideline is two-fold. First as I have already indicated, it is to recognize that there is a limit to the delay that can be tolerated on account of resource limitations. Second, it is to avoid each application pursuant to s. 11(b) being turned into a trial of the budgetary policy of the government as it relates to the administration of justice. The flavour of such a proceeding can be approached by a perusal of the voluminous record before the Court in this case.

A number of considerations enter into the adoption of a guideline and its application by trial courts. A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors. This premise enters into its formulation. The Court must acknowledge that a guideline is not the result of any precise legal or scientific formula. It is the result of the exercise of a judicial discretion based on experience and taking into account the evidence of the limitations on resources, the strain imposed on them, statistics from other comparable jurisdictions and the opinions of other courts and judges, as well as any expert opinion. …

[64] In commenting on the application of an administrative guideline relative to the issue of the length of a constitutionally tolerable period of institutional delay, Sopinka J. wrote as follows:

The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court’s concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact.

In this case we are dealing with the Provincial Court. The suggested period of institutional delay ranges from 6 to 10 months. The respondent suggests that 8 to 10 months of purely systemic delay would not be unreasonable in the Provincial Court. It admits, however, that it is aiming at institutional delay of no more than 6 to 8 months in Provincial Court. Arbour J.A. in Bennett, supra. [Regina v. Bennett, 1991 2701 (ON CA), [1991] O.J. No. 884 (Ont. C.A.)] suggests ‘a delay of 81/2 to 9 months in getting a case to trial in the Provincial Court, although not a model of brevity, is not outside the range of reasonableness’.

In Askov, [supra.] Cory J., after reviewing comparative statistics suggested that a period in the range of 6 to 8 months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay.

[65] In her judgment in Regina v. Liang, 2011 ONCJ 458 (Ont. C.J.), K.P. Wright J. determined that the delay in completing the trial of the criminal offence against the accused, which was caused by the Crown’s inability to provide the accused with the assistance of a competent interpreter, constituted institutional delay. In this regard, in paragraphs 11 to 15 of her judgment, the jurist stated as follows:

There is also no dispute that from the third trial date of February 3, 2011 until the fourth trial date of July 7^th, 2011 should be considered institutional delay. The trial did not continue on February 3, 2011 as scheduled because the accredited Mandarin interpreter, who had assisted on the first two trial dates, lost her standing. As such, a non-accredited interpreter attended and a voir dire was held to determine competency. The interpreter was deemed not competent and as a result the trial could not continue. At this stage it became abundantly clear that setting a continuing trial date was dependent on the availability of an accredited Mandarin interpreter. The earliest date that could be confirmed was July 7^th, 2011. Given that s. 14 of the Charter guarantees the right of the accused to the assistance of an interpreter, the lack of interpreter for Mr. Liang amounts to five months and four days of institutional delay.

The main areas of controversy in the application concern the time frame from September 28, 2010 to February 3, 2011.

The Crown argues that because the initial time estimate was not accurate and the matter took longer than anticipated, the two months and 17 days between the first and second trial date should be considered neutral. I agree, except for the 10-day period between December 6 and December 15. It is clear from the record that but for the scheduling of the interpreter the second trial date would have commenced on December 6, 2010. That 10-day period is wholly attributable to the shortage of accredited Mandarin interpreters and should therefore be considered institutional.

The second area of controversy covers the time frame between the second and third trial date, December 15, 2010 to February 3, 2011. Although it is clear that the interpreter’s schedule played a role in securing the date, the record is unclear as to the degree it played in securing a date. As such, I find that one month and 19 days to be a neutral time period.

I am satisfied that the 13 months and 21 days of delay was due to a shortage of accredited Mandarin interpreters and as such must be categorized as institutional delay.

[66] In addressing the final element described as “other reasons for delay” in Morin, supra., Sopinka J. identified a circumstance where the actions of a trial court judge could be the cause of delay. In considering this scenario, the jurist was reminded of the circumstances in the case of Regina v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588 (S.C.C.), wherein the trial judge initiated adjournments of the trial proceeding on nineteen separate occasions over a period of eleven months, after the accused had moved for a directed verdict. The jurist noted that while this form of delay was “not institutional in the strict sense”, it could not “be relied upon by the Crown to justify the period under consideration”.

[67] In concluding his comments relative to this element of the reasons for the delay, Mr. Justice Sopinka stated that “other delays that have not been mentioned may weigh against the accused, but in most cases delays will weigh against the Crown for the same reason as was discussed in Rahey supra.”.

[68] In addressing the final factor to be considered in assessing the reasonableness of trial delay; that being the factor of prejudice to the accused, Sopinka J. made the following comments in paragraphs 61 to 64 of his decision in Morin, supra.:

Section 11(b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a completion. We have decided in several judgments, including the unanimous judgment in Smith, supra., that the right protected by s. 11(b) is not restricted to those who demonstrate that they desire a speedy resolution to their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. In the American concept of this principle, expounded in Barker v. Wingo, [407 U.S. 514 (1972)] the inference is that no prejudice has been suffered by the accused unless he or she asserts the right. While the observation of Dubin C.J.O. in Bennett [supra.] that many, perhaps most, accused are not anxious to have an early trial may no doubt be accurate, s. 11(b) was designed to protect the individual, whose rights are not to be determined on the basis of the desires or practices of the majority. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.

This Court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial (see Askov, supra, at pp. 1225, 1227, 1229). While it was not necessary for the accused to assert her right to be tried within a reasonable time, strong views have been expressed that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of the accused. …

As noted by Cory J. in Askov, supra, ‘the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused’ (p. 1222). This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. This position is consistent with decisions of this Court in regard to other Charter provisions. For example, this Court has held that an accused must be reasonably diligent in contacting counsel under Charter s. 10(b) (R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435; R. v. Smith, 1989 27 (SCC), [1989] 2 S.C.R. 368). If this requirement is not enforced, the right to counsel could be used to frustrate police investigation and in certain cases prevent essential evidence from being obtained. Nonetheless, in taking into account inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay.

Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused’s security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to ‘the vexations and vicissitudes of a pending criminal accusation’ to use the words adopted by Lamer J. in Mills, supra, [Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863 (S.C.C.)] at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused’s ability to make full answer and defence.

Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated. The application of any guideline will be influenced by this factor.

[69] In the Supreme Court of Canada case of Regina v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.), the unanimous Court reversed the decision of the majority of the Ontario Court of Appeal panel which set aside the stay of the criminal charges against the accused as ordered by the trial judge, based upon unreasonable delay.

[70] In his decision in this case, written on behalf of the Court, Cromwell J. made the following comments relative to the factor of the prejudice to the accused:

The Court of Appeal disagreed with the trial judge’s analysis of prejudice and found that any prejudice to the accused’s interest in a fair trial was too speculative to be considered. Partly on this basis, the Court of Appeal found that the delay was not unreasonable. I respectfully disagree. In light of the length of the delay, of the Crown’s failure to explain the multiple delays adequately, and of the prejudice to the accused’s liberty and security interests – if not also to his interest in a fair trial – the delay in this case was unreasonable.

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise to raise a defence. See Morin, [supra.], at pp. 801-3.

The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, ‘prejudice may be inferred from the length of the delay’. The longer the delay the more likely that such an inference will be drawn’. Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

This approach was reflected in the trial judge’s reasons, where he wrote that the delay in this case was ‘well beyond any reasonable interpretation of the [Morin] guidelines’ (2007 CarswellOnt 5364, at para. 20) and that the appellant had suffered prejudice as a result. The judge referred specifically to the fact that the charges had been hanging over the appellant’s head for a long time and that he was subject to ‘fairly strict’ bail conditions (para. 22).

The Court of Appeal disagreed with the sequence in which the trial judge addressed the issue of prejudice, noting that the trial judge only turned to his consideration of prejudice after he had already concluded that s. 11(b) had been infringed. Respectfully, I cannot accept that the trial judge erred in this regard. It is in my respectful view clear from reading the judge’s reasons as a whole that he considered the relevant factors.

The majority of the Court of Appeal acknowledged that these charges had been hanging over the appellant’s head for a long time. It was reasonable, in my view, to infer as the trial judge did that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice. The majority of the Court of Appeal appears to have given no weight to this consideration. The majority of the Court of Appeal also disagreed with the trial judge’s finding relating to prejudice flowing from restrictive bail conditions. The appellant had been on judicial interim release for more than two years. It is true that his bail conditions were relaxed as the delay lengthened, but the trial judge did not err in the circumstances of this case by taking this consideration into account as one aspect relevant to his overall assessment of whether the long delay was unreasonable.

The majority of the Court of Appeal rejected as speculative the appellant’s contention that his ability to make full answer and defence had been prejudiced. There was evidence, however, that there was a risk of prejudice to his defence because of the delay. In my respectful view, the majority of the Court of Appeal erred by failing to accord any weight to this risk of prejudice.

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

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

[71] In the concluding paragraphs of the said decision, Cromwell J. noted that “the length of the delay and the evidence supported the trial judge’s inference that some prejudice to the appellant resulted from the delay”. He then made reference to the following passage from the concurring reasons of McLachlan J. (as she then was) in Morin, supra., at page 810:

…When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

[72] In the case of Regina v. Rahey, supra., the majority of the Supreme Court of Canada determined that a stay of proceedings is the minimum remedy for an infringement of s. 11(b), because, in that circumstance, the court has lost jurisdiction to proceed. In that regard, Lamer J. (as he then was) made the following comments in paragraph 51 of the decision:

It is, in other words, open to the courts to take preventative measures, based on their inherent power to control their process, prior to an actual violation of s. 11(b). Where, however, on balancing the various factors, the court decides that the accused’s right to be tried within a reasonable time has already been contravened, a stay of proceedings will be the appropriate remedy. It is not necessarily the only remedy, for additional remedies may be just and appropriate in the circumstances of the case. The stay is a minimum remedy, to which others may be added, such as, possibly, damages, if it be proved that there was malice on the part of the Crown and resulting prejudice.

ANALYSIS

[73] In attempting to reach a decision pertaining to the defendant’s subsection 11(b) and 24(1) Charter application herein, I must remind myself that it is not appropriate to resolve the issues raised by the application by means of a “burden of proof” approach. As stated by Sopinka J. in Morin, supra., while it is acknowledged that in such subsection 11(b) applications, the applicant (accused) “has the ultimate or legal burden throughout”, the preferred approach to the judicial determination of such applications is through a “balancing” of the “interests which the [subsection] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay”.

[74] In this regard, the said jurist identified four factors, including their constituent elements, which a Court should consider in analyzing the reasonableness of the purported delay in bringing the trial of a charge to completion. Many jurists considering applications under subsections 11(b) and 24(1) of the Charter, subsequent to the release of the decision in Morin, supra., have described the consideration of these four factors as the “legal framework” for the analysis of such applications. I shall apply each of the four factors to the experience of the case at bar, in the ensuing paragraphs of this judgment.

[75] In Morin, supra., Sopinka J. stated that “section 11(b) protects the individual from impairment of the right to liberty, security of the person and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion”. In commenting on the individual interests which subsection 11(b) is designed to protect, Cromwell J., in Godin, supra., followed the dicta of Sopinka J. noting that the “three interests of the accused” that subsection 11(b) protects are; (1) “liberty, as regards to pre-trial custody or bail conditions”; (2) “security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge”; and (3) “the right to make full answer and defence insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence”.

[76] Furthermore, in Morin, supra., Sopinka J. stated that subsection 11(b) of the Charter is also designed to protect certain societal interests. He described these interests as being secondary to the protection of the individual rights protected by the subsection. He identified the societal interests as, (1) society’s interest in seeing that individuals “accused of crime are treated humanely and fairly”; and (2) society’s interest in ensuring that those who “transgress the law are brought to trial and dealt with according to law”, noting that the “societal demand” that the accused be brought to trial increases with the seriousness of the offence.

[77] In her concurring decision in Morin, supra., McLachlin J. stated that when trials are delayed “the public interest in the fair and prompt administration of justice” may be affected. Moreover, in Godin, supra., Cromwell J. remarked that “there is a strong societal interest in having serious offences tried on their merits”.

[78] In his decision in the Ontario Court of Appeal case of Regina v. Qureshi, et.al., 2004 40657 (ON CA), [2004] O.J. No. 4711 (Ont. C.A.), Laskin J.A. made reference to both the individual and societal rights that subsection 11(b) “aims to protect”, as identified in Morin, supra. and then defined the issues to be decided in a subsection 11(b) application, as follows:

To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered.

[79] I will now apply each of the four factors relative to the judicial determination of the reasonableness of the length of delay in the completion of the trial of an offence, as identified in Morin, supra., to the facts of the subject case.

The Legal Framework

(i) The Length of the Delay

[80] I have determined the overall length of the delay in this proceeding to be 26 months and 6 days. That span of time is comprised of the period between November 3^rd, 2009, when the defendant filed his Notice of Intention to Appear with the Provincial Offences Court for the Regional Municipality of Halton, until January 9^th, 2012, being the anticipated completion date of the trial of the subject charge.

[81] In my view, the delay herein is of sufficient length to raise an issue as to its reasonableness. The length of the delay is certainly exceptional and it warrants an inquiry into the reasons for the delay.

[82] In reaching my decision to calculate the total length of the delay from the date of the filing of the Notice of Intention to Appear forward rather than from the date of the alleged offence forward, I have followed the detailed reasoning enunciated by Conacher J.P. in Regina v. Rowan, supra., as summarized above, which I have found to be persuasive.

(ii) Waiver of Time Periods

[83] The defendant has neither explicitly nor implicitly waived any time periods in this case.

(iii) The Reasons for the Delay

(A) Inherent Time Requirements

[84] The issues to be resolved under this element are:

1. whether or not there are any “intake requirements” associated with the subject careless driving offence, prosecuted under the procedure codified in Part I of the P.O.A. and, if so;

2. what would be a reasonable length of an “intake period” for the subject offence?

[85] In considering these issues, one must place significant weight on the view of the majority of the Supreme Court of Canada in Morin, supra., that “all offences have certain inherent time requirements which inevitably lead to delay”. While I acknowledge that the offence against the defendant herein is a H.T.A. offence which is being prosecuted under Part I of the P.O.A., it is nevertheless a strict liability regulatory offence, the circumstances of which relate to a motor vehicle collision involving the purported testimony of two civilians and one police officer. The issues related to careless driving allegations are, at times, complex, given the elements of the offence as defined by jurisprudence, which must be proved by the prosecution to the standard of proof beyond a reasonable doubt.

[86] In this matter, the defendant was not arrested at the time of the alleged commission of the subject offence. Accordingly there are no bail issues involved with this matter. However, it is reasonable for me to infer that in light of the nature of the subject offence, the alleged circumstances of the offence, the number of witnesses involved, the police and administration paperwork related to the processing of the certificate of offence, the preparation of disclosure of the prosecution evidence and the scheduling of the trial of the offence, including the scheduling of a competent interpreter in the Punjabi language, there are, in fact, inherent time requirements associated with the subject provincial offence proceeding.

[87] In considering the issue of the length of an intake period for this offence, I have taken into account the fact that the defendant proceeded expeditiously in filing his Notice of Intention to Appear with the Court, 10 days following the date of the offence, when he was served with the Offence Notice relative to the offence. He therefore applied for a trial in this proceeding within the 15 day window to respond to his ticket, afforded to him by the procedure codified in Part I of the P.O.A. In light of the defendant’s prompt response to the Offence Notice, the Clerk of the Provincial Offences Court was able to notify the defendant of the date of his trial (July 13^th, 2010), by means of ordinary mail on November 26^th, 2009, 23 days after the date that the defendant filed his Notice of Intention to Appear.

[88] In determining the appropriate length of the intake period in this matter, I am persuaded by the extensive reasoning of Libman J. in Regina ex.rel. City of Toronto v Andrade, supra., where he stated that he saw “no reason why a reasonable intake period for a traffic ticket, as a general rule, should exceed a period of between 30 to 45 days”. The jurist went on to say that “an intake period in the lesser range of 30 days [would] be appropriate where the defendant acts promptly within the 15 day window to respond to his/her ticket and files the notice of intention to appear in court for trial, and the officer, in turn, files the certificate of offence or offence notice expeditiously in the court office, thereby allowing court administration to have all the necessary documentation within days of the issuance of the ticket”.

[89] In the case at bar, the Certificate of Offence was filed in the Milton Provincial Offences Court within three days of the date of the alleged offence. The defendant filed his Notice of Intention to Appear with the Halton Provincial Offences Court for the Regional Municipality of Halton, on November 3^rd, 2009, ten days after he was served with the subject offence notice, thereby allowing the Milton Provincial Offences Court to issue a Notice of Trial in this proceeding on November 26^th, 2009.

[90] After considering all of the relevant factors in the determination of the appropriate length of the intake period as an inherent time requirement for the subject charge, I am of the view that the period between November 3^rd, 2009 and December 2^nd, 2009, a period of one month would constitute a reasonable intake period. In reaching this conclusion, I have taken into consideration the prompt and efficient actions of the defendant in responding to the Offence Notice, the fact that the Certificate of Offence was filed with the court within three days after the date of the service of the Offence Notice (the date of the offence), the nature of the charge, the alleged circumstances of the offence involving a motor vehicle collision and the requirement that the prosecution arrange for the attendance of a competent interpreter to assist the defendant at trial.

[91] I am satisfied that given these factors all of the necessary pre-trial activities to be completed by both the prosecution and the defendant, including issues pertaining to the retention of the defendant’s legal representative, police paperwork and the preparation of disclosure for the defendant as well as paperwork to be completed by both the defendant and by court administration pertaining to the processing of the charge and the scheduling of the trial date and the language interpreter, could adequately be completed within a 30 day period subsequent to the filing of the Notice of Intention to Appear. Accordingly, I find the 30 day period to be an inherent time period required for this particular case.

(B) Actions of the Accused

[92] As stated by Sopinka J. in Morin, supra., this element is relevant to those actions which are “voluntarily undertaken” by the accused and “which may have caused delay”. The jurist went on to identify a number of procedural or strategic motions or applications which might be pursued by an accused prior to trial and which could either cause or contribute to trial delay. He noted that it would be appropriate to take such actions into account in the process of assessing the reasonableness of the length of any particular trial delay.

[93] In the case at bar, the defendant applied for a stay of the subject charge under subsections 11(b) and 24(1) of the Charter on January 26^th, 2011, being the second trial date in the proceeding. This was a pre-trial motion, voluntarily undertaken, whereby the defendant sought an appropriate and just remedy for an alleged infringement of one of his legal rights, relative to the quasi-criminal offence against him, as guaranteed by the Charter. However, the commencement of the subject Charter application at the outset of the second trial date in this proceeding, was a significant contributing factor in the delay in the completion of the trial of the matter.

[94] It must be remembered that the prosecution was ready to proceed with the evidentiary phase of the subject trial on January 26^th, 2011, when the defendant’s intervening application served to postpone that aspect of the trial proceeding. It is therefore, appropriate that the actions of the defendant in pursuing the Charter remedy, form part of the Court’s analysis in determining the merits of his Charter application.

[95] In assessing the significance of the actions of the defendant in this regard as one of the causes of the delay in the completion of the trial in this matter, I have found the comments made by Juriansz J.A. in his decision in Regina v. N.N.M., supra., on the subject issue, to be quite persuasive. I am of the view that I am bound by the reasoning expressed by the said jurist in the said decision pertaining to the impact of the commencement of a subsection 11(b) application prior to or during the course of a trial, on the issue of the reasonableness of any trial delay occasioned by the hearing of and the determination of the application.

[96] As noted above, in N.N.M., supra., Mr. Justice Juriansz opined that while the accused was “entitled” to bring a subsection 11(b) application, the adjournment of the trial proceeding, which was caused by the time required to argue and consider the application, was “attributable to the defence”. In support of this position in respect of this issue, the appeal jurist cited the dicta of Arbour J.A. (as she then was) in Regina v. Harrison, supra., where the jurist stated that while the accused/respondent “was entitled to move to quash his committals for trial”, resulting in a postponement of the original trial date, “he must then accept the reasonable delays that occur as a consequence of this additional step in the pre-trial process”.

[97] In apportioning the responsibility for the various periods of trial delay in the case of N.N.M., supra., Juriansz J.A. allocated a period of two months to the inherent time requirements in “dealing with” the accused’s subsection 11(b) application and waiting for the Court’s decision on the application. He determined that the inherent time requirements relative to this type of pre-trial application, which caused the adjournment of the trial proceeding, should be categorized as an action of the accused. He concluded that the period of the delay occasioned by the pursuit of the application by the accused was attributable to the defence.

[98] In following the reasoning expressed by Mr. Justice Juriansz in N.N.M., supra., I am of the view that the delay to the commencement of the evidentiary phase of the subject trial proceeding on January 26^th, 2011, should be attributed to the defendant.

[99] On the other hand, I am of the view that the responsibility for the length of the period of delay following the adjournment of the subject trial on January 26^th, 2011 should not be fully borne by the defendant. It would be reasonable to allocate a period of approximately nine months during the period between January 27^th, 2011 and the anticipated completion date for the subject trial on January 9^th, 2012, as an inherent time requirement relative to the hearing of the Charter application and time required by the Court to consider the evidence and arguments presented during the hearing, and to render its judgment on the application. This nine month period of delay, in my view, falls at the feet of the defence. The balance of the period of delay subsequent to January 26^th, 2011, may be properly characterized as institutional delay.

(C) Actions of the Crown

[100] As stated by Sopinka J. in Morin, supra., this element of the factor of “the reasons for the delay” is concerned with actions of the prosecution which may cause a delay on the completion of a trial of an offence. The jurist noted that such actions would include “adjournments requested by the Crown, failure or delay in disclosure, or change of venue motions”.

[101] In considering this element in the context of the pre-trial activities of the case at bar, I must also afford significant weight to the comments of Juriansz J.A. made in paragraph 23 of his decision in N.N.M., supra., where he states that “the party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time”.

[102] As stated above, the first trial date in the subject proceeding was scheduled for July 13^th, 2010. It is apparent that both the prosecution and the defendant were ready to proceed with the trial at that time. Unfortunately, the trial was unable to proceed at that time, due to the unavailability of a court-appointed interpreter in the Punjabi language to assist the defendant during the course of the trial.

[103] As noted above, while the court administration had arranged for the attendance of an interpreter for the defendant on the subject trial date, the interpreter advised that she could not stay for the trial in the subject proceeding as she was also scheduled to provide interpretation services in the Criminal Court in Mississauga, Ontario, at a later time during the morning hours of July 13^th, 2010.

[104] In light of this circumstance, the prosecution sought an adjournment of the subject trial. The presiding judicial officer granted the prosecution request in this regard and the trial of the matter was re-scheduled for the earliest date available to both the court administration and the prosecution witnesses, being January 26^th, 2011.

[105] For reasons which I will expound upon below, under the sub-heading dealing with the element, “limits on institutional resources”, I am of the view that the delay of the trial proceedings on July 13^th, 2010 occasioned by the inability of the prosecution to provide the defendant with the assistance an interpreter in his first language, is properly categorized as institutional delay. I would point out, however, that the adjournment of the trial date was sought by the prosecution due to the unavailability of the requested interpreter. Accordingly, following the dicta of Mr. Justice Juriansz contained in paragraph 23 of his decision in N.N.M., supra., as set out above, I am of the view that the responsibility for the entire period of delay in this matter from July 13^th, 2010 until January 26^th, 2011, should be attributed to the prosecution.

(D) Limits on Institutional Resources

[106] As stated by Sopinka J. in Morin, supra., “institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter”. The jurist defined a period of institutional delay as “the period that starts to run when the parties are ready for trial but the system cannot accommodate them”.

[107] In considering the issue of an administrative guideline relative to the point in time when the Court will no longer tolerate delay based on a plea of inadequate court and /or judicial resources, Sopinka J. suggested that “a period of institutional delay of between 8 to 10 months” as a guideline for all criminal or provincial offences which are tried in the Provincial Courts. The jurist emphasized that the guideline suggested was not to be “treated as a fixed limitation period”, indicating that the guideline was “not intended to be applied in a purely mechanical fashion” and that “it must lend itself and yield to other factors”.

[108] Sopinka J. noted that the application of a guideline will be “influenced by the presence or absence of prejudice”. In this regard, he observed that the period of acceptable institutional delay might be shortened in circumstances where the accused is in custody while waiting for the completion of his/her trial, or in circumstances where the accused, while not in custody, is subject to restrictive bail conditions or “otherwise experiences substantial prejudice” during the course of any delay in the completion of his/her trial.

[109] In the alternative, Mr. Justice Sopinka submitted that “in a case where there is no prejudice or the prejudice is slight, the guideline may be applied to reflect this fact”.

[110] In carefully considering the chronology of events in this proceeding leading up to the anticipated completion of the trial of the subject charge on January 9^th, 2012, I am of the view that the total period of trial delay which may be attributed to the element of institutional delay is that if 16 months and 7 days. The responsibility for this type of delay rests on the prosecution.

[111] In apportioning the responsibility for the overall delay in the completion of the trial in this proceeding, relative to the factors which have either led to delay or were otherwise the cause of the delay; after weighing the evidence in this proceeding on a balance of probabilities, I have reached the following conclusions:

1. the period of time between November 3^rd, 2009 and December 2^nd, 2009, a period of one month, is a neutral time period relative to the inherent time requirements of the subject charge against the defendant;

2. the period of time between December 3^rd, 2009 and July 13^th, 2010 (the first trial date), a period of 7 months and 11, days is properly attributable to institutional delay. The responsibility for the delay during this period of time rests on the prosecution;

3. the period of time between July 14^th, 2010 and January 26^th, 2011 (the second trial date), a period of 6 months and 13 days, is properly attributable to institutional delay. The responsibility for the delay during this period of time rests on the prosecution. The delay during this period was caused by the inability of the prosecution to provide the defendant with the assistance of a competent interpreter in the Punjabi language for purposes of his trial of July 13^th, 2010;

4. the period of time between January 27^th, 2011 and July 27^th, 2011, a period of 6 months, is properly attributable to the actions of the defendant in bringing on his subsection 11(b) Charter application, resulting in an adjournment of the commencement of the evidentiary phase of the trial proceeding. The responsibility for the delay during this period rests with the defendant. In reaching this conclusion, I have allocated 6 months of the period of time between the second trial date of January 26^th, 2011 and the third trial date of October 4^th, 2011, as a reasonable inherent time period relative to the hearing and disposition of the defendant’s subsection 11(b) application. While I acknowledge that the actual period of delay between the second and third trial dates in this matter is that of 8 months and 7 days, in my view, it would be unreasonable to categorize the whole of this period of time to the constituent element of the “reasons for the delay” described as the “actions of the accused”. I am of the view that a reasonable inherent time requirement for the hearing of and disposition of the subject application would be no more than nine months. Accordingly, for purposes of this analysis , I have apportioned a total amount of 8 months and 29 days to the concept of the inherent time required to deal with the application, including the time required by the Court to prepare and render its judgment on the application;

5. the period of time between July 28^th, 2011 and October 4^th, 2011 (the third trial date), a period of 2 months and 7 days, is properly attributable to institutional delay. The responsibility for the delay during this period rests with the prosecution;

6. the period of time between October 5^th, 2011 and January 3^rd, 2012 (being the date reserved for the rendering of the Court’s judgment respecting the defendant’s Charter application), a period of 2 months and 29 days, is properly attributable to the actions of the defendant in commencing his Charter application at the outset of the second trial date in this proceeding. The responsibility for the delay during this period rests on the defendant. This period of delay relates to the concept of the inherent time required for the hearing and disposition of the defendant’s Charter application;

7. the period of time between January 4^th, 2012 and January 9^th, 2012 (the fourth trial date and the anticipated completion date of the evidentiary phase of the trial ), a period of 6 days, is properly attributable to institutional delay. The responsibility for the delay during this period rests on the prosecution.

[112] As noted above, I have attributed the trial delay in this matter during the period between July 14^th, 2010 and January 26^th, 2011, to the element of institutional delay. The delay during this period of time falls at the feet of the prosecution.

[113] In reaching this conclusion, I have followed the reasoning of K.P. Wright, J. in her decision in Regina v. Liang, supra. In that case, Madam Justice Wright stated, in part, as follows:

…Given that s. 14 of the Charter guarantees the right of the accused to the assistance of an interpreter, and it is the responsibility of the Ministry of the Attorney General to provide a competent interpreter, the lack of an interpreter for Mr. Liang amounts to five months and four days of institutional delay.

[114] At the conclusion of her decision in Liang, supra., the jurist stated that she was “satisfied that the 13 months and 21 days of delay” in completing the trial relative to the offences of impaired driving and operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood against the accused, “was due to a shortage of accredited Mandarin interpreters and as such must be categorized as institutional delay”.

[115] I acknowledge that while I am not bound by the reasoning of Madam Justice Wright, relative to the effect of a delay in trial proceedings caused by the failure of the Crown to provide a competent interpreter, as set out in Liang, supra., I find the force of her reasoning pertaining to the subject subsection 11(b) issue, persuasive and I am disposed to follow the said decision.

[116] Based on the reasoning expressed in Liang, supra., I am of the view that the 6 month and 13 day period of delay in the case at bar, between July 14^th, 2010 and January 26^th, 2011, constitutes institutional delay. In this proceeding, the defendant advised the administration of the Provincial Offences Court of his wish to be provided with an interpreter in the Punjabi language for purposes of his trial on the subject charge, when he filed his notice of intention to appear with the Court on November 3^rd, 2009. The court administration and by extension the Prosecutor for the City of Burlington, had ample notice of the defendant’s request for the services of an interpreter, at the time that the first trial date in this matter was set on November 26^th, 2009.

[117] As stated by Madam Justice Wright, in light of the fact that section 14 of the Charter guarantees the right of the accused to the assistance of an interpreter, it is the responsibility of the Crown, or in this case, the P.O.A. Prosecutor for the City of Burlington, to ensure that a competent court-appointed interpreter in the chosen language of the defendant is in attendance at the trial to assist the defendant. The inability of the prosecution to meet its obligation in respect to the provision of an interpreter on July 13^th, 2010, through an apparent scheduling error, caused the trial of that date to have to be adjourned. The period of trial delay that followed this adjournment through to the second trial date, January 26^th, 2011, is as a result of institutional factors and is properly characterized as institutional delay.

[118] The total amount of trial delay in the subject proceeding, which is attributable to institutional or systemic factors; being a period of 16 months and 7 days, is a period of time well in excess of the guidelines for constitutionally tolerable institutional delay (a period of between 8 and 10 months), as suggested by Sopinka J. in Morin, supra. The defendant is not in custody on the careless driving charge, nor is he subject to any bail conditions relative to the said charge. There is no basis, therefore, for the said guideline period to be shortened to address such concerns.

[119] Similarly, in my view, it is not obvious that the defendant has not suffered any prejudice as a result of the delay or that any prejudice suffered by him is “slight”, which would justify a lengthening of the said administrative guidelines for institutional delay.

(E) Other Reasons for Delay

[120] There are no other reasons for delay in this case.

(iv) Prejudice to the Accused

[121] In this section, I must determine whether the defendant has suffered prejudice to any of the three individual rights which subsection 11(b) of the Charter seeks to protect, as a result of the institutional or systemic delay in the completion of the trial in this proceeding. In briefly commenting on the factor of “prejudice to the accused”, in the context of the legal framework to be applied in determining the reasonableness of the length of trial delay, Laskin, J.A., in Regina v. Qureshi, et.al., supra., stated as follows:

Two kinds of prejudice are relevant here. First the court may infer prejudice from the delay itself and is more likely to do so the longer the delay. On the other hand, an accused’s action or inaction that shows a desire to avoid a trial on the merits may negate any inference of prejudice from the delay itself. Second, the accused or the Crown may lead evidence to show either prejudice or an absence of prejudice.

[122] During the hearing of the subject Charter application, the defendant did not lead any evidence to attempt to establish that he actually suffered prejudice to any one or more of the rights that subsection 11(b) aims to protect, as a result of the institutional delay in the completion of the trial in this proceeding. Those rights are as follows: (1) the right to security of the person “by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings”, (2) the right to liberty, “by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions” and (3) the right to a fair trial “by attempting to ensure that proceedings take place while evidence is available and fresh”.

[123] Similarly, the Crown declined an opportunity to lead evidence to dispel any notion that the defendant might have suffered prejudice to the identified individual rights, as a result of the identified period of institutional delay.

[124] As stated by Sopinka J, in Morin, supra., I have an obligation to consider all of the circumstances in considering an inquiry into the length of any given trial delay to determine whether an accused person has suffered prejudice to any of the three interests identified above. As stated in Morin, supra., “in an individual case, prejudice may be inferred from the length of the delay” and “the longer the delay the more likely that such inference will be drawn”.

[125] As noted above, the period of 16 months and 7 days out of the overall delay in this proceeding of 26 months and 6 days is attributable to limits on institutional resources. The institutional delay in this proceeding exceeds the guidelines for acceptable trial delay based upon institutional or systemic factors, by a period of 6 to 8 months.

[126] Based upon the length of the institutional delay alone, there is no basis upon which I am able to infer that the defendant has suffered prejudice to his right to security of the person as a result of the institutional delay in the completion of this Part I P.O.A., careless driving offence. It would be certainly speculative for me to conclude that the defendant has suffered prejudice as a result of the anxiety and stress allegedly associated with the delay of the trial of the subject offence. This conclusion is in my view enhanced by the fact that if the defendant were convicted of this quasi-criminal offence, he would only be liable to a fine of between $200.00 at the minimum and $500.00 at the maximum and an administrative penalty of the imposition of 6 demerit points on his driving record.

[127] In reaching my decision relative to the issue of inferred prejudice to the defendant’s right to security of the person caused by the institutional delay, I am reminded of the dicta of Mr. Justice Doherty in Regina v. Omarzadah, supra., where he made the following statements pertaining to the degree of “stigma” associated with the prosecution of a speeding charge under Part I of the P.O.A.:

…It must be acknowledged that any “stigma” arising out of the delay in the trial of charges like speeding is virtually non-existent. In allocating finite resources, the state is entitled to give some priority to the speedy resolution of more serious allegations.

[128] I agree with the comments of Mr. Justice Doherty in that regard. It seems to me that, even though the offence of careless driving under the H.T.A. is a more serious offence than the absolute liability offence of speeding, the very fact that the prosecutor has decided to proceed with the subject offence under the Part I procedure of the P.O.A.; thereby eliminating the possibility of the imposition of much more severe sentences upon conviction for the subject offence, any stigma associated with extensive delay in bringing the subject careless driving charge to trial, would, as in the case of a speeding charge “be virtually non-existent”.

[129] In considering the issue of whether the defendant has suffered any prejudice to his right to liberty as described by Laskin J.A. in Qureshi, et.al, supra., as the right to “[minimize] the effect of pre-trial custody or bail conditions”, arising out of the institutional delay herein, I am not satisfied that prejudice to that right may be inferred from the length of the trial delay. The defendant is charged with careless driving under the H.T.A., which is being prosecuted under Part I of the P.O.A. He was not arrested at the time of the alleged offence and he has not experienced any pre-trial custody or restrictive bail conditions while awaiting trial on the charge.

[130] Accordingly, the existence of prejudice to the defendant’s right to liberty occasioned by the institutional trial delay in this proceeding, may not be reasonably and logically inferred from the excessive length of the delay herein.

[131] On the other hand, it is logical to infer that the defendant has suffered significant risk of prejudice to his defence on the subject charge arising out of the delay in the trial of the subject charge. He has therefore suffered prejudice to his right to a fair trial, for the purpose of ensuring that “[trial] proceedings take place while evidence is available and fresh”.

[132] It is not speculative to conclude that given the extensive institutional delay in bringing the subject matter to trial, the defendant’s ability to recall the specifics of the alleged event has likely been impaired. The approximate 16 month period of institutional delay in this matter serves to diminish the ability of the defendant to adequately respond to allegations that, at the material time, he drove a vehicle without due care and attention. The excessive passage of time not only has the effect of impairing the defendant’s memory of the subject events, but serves to weaken the precision of the testimony of other witnesses who would likely be relying on their memory of the relevant events. A witness with a fading memory would be unable to recall details which might support the defendant’s defence or which, in the alternative, might permit the defendant to test the credibility of the witness’ testimony.

[133] In my view, it is reasonable to infer that the excessive period of delay in completing the trial in this matter has caused significant impairment to the defendant’s right to make full answer and defence. In a charge of careless driving involving a motor vehicle collision, the precision of the observations of independent witnesses is crucial to the issue of whether or not the accused person’s driving conduct at the material time departed from the standard expected on an ordinary, prudent driver. The defendant’s inability to adequately test the reliability of the anticipated testimony of the prosecution witnesses, by way of cross-examination, due to fading memories, represents significant prejudice to the defendant’s right to a fair trial. It is trite to say that if the trial proceeds as scheduled on January 9^th, 2012, it will not have taken place at a time when the evidence pertaining to the charge was fresh.

[134] As stated by Cromwell J. in Godin, supra., it is the “risk of prejudice” to the defendant’s ability to make full and answer and defence in this matter which has been prejudiced by the delay in the trial of the charge. I feel confident that I am able to draw the inference that the defendant has suffered some prejudice to his right to a fair trial on account of the substantial length of the institutional delay in bringing this matter on for trial. A conclusion that the defendant has not suffered an impairment of his right to a fair trial arising out of the delay would in fact be speculative and, in my view, defy common sense.

[135] The common sense view on this issue was expressed by Madam Justice McLachlan, in her concurring judgment in Morin, supra., at paragraph 86, where she stated that “[w]hen trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. …” Based upon this logic it is reasonable to draw an inference that the defendant suffered a risk of prejudice to his ability to make full answer and defence in the subject proceeding, due directly to the prima facie unreasonable period of institutional trial delay.

[136] The defendant’s right to a fair trial, one of the individual rights which subsection 11(b) is designed to protect, has been violated as a result of the degree of the delay in the trial of the charge. It has therefore been shown that the defendant suffered prejudice as a result of the extent of the institutional trial delay in this proceeding.

Balancing the interests of the defendant and the interests of society

[137] At this stage of the analysis, I must engage in an balancing of the interests of the accused in seeking a stay of the proceedings against him as a remedy for the purported infringement of his rights under subsection 11(b), against the societal interest in seeing that those who transgress the law are brought to trial to be dealt with according to law. As stated by Sopinka J. in Morin, supra., “as the seriousness of the offence increases so does the societal demand that the accused be brought to trial”

[138] In engaging in this balancing exercise, I acknowledge that the defendant is charged with careless driving, one of the most serious offences under the H.T.A. On the other hand, the prosecution has chosen to prosecute the subject charge under the procedure set forth in Part I of the P.O.A. rather than the more formal procedure set forth in Part III of the P.O.A. The prosecutor has apparently made this decision even though the subject charge involves allegations of careless driving in the context of a motor vehicle collision.

[139] As stated above, if the defendant is convicted of the subject Part I P.O.A. charge, he will be liable to a fine in the range of $200.00 to $500.00 as well as an administrative penalty of the imposition of 6 demerit points on his driving record. On the other hand, if the defendant was convicted of the subject offence prosecuted under the procedure codified in Part III of the P.O.A., he would be liable to a broad range of possible sentences including an increased level of fine, probation for a period of up to two years, an order suspending his driver’s licence and/or vehicle permit for a period of up to two years, and a period of incarceration of up to six months either in lieu of or in addition to a fine or in lieu of or in addition to a period of probation, as well as the administrative penalty of the imposition of 6 demerit points on his driving record.

[140] The subject careless driving charge cannot be considered a serious allegation given the relatively minor penalties associated with a conviction for this “ticketed” offence. One might reasonably infer that given the decision of the prosecutor to prosecute this matter under the informal Part I procedure of the P.O.A., that the motor vehicle collision involved in the subject event was also minor in severity. For these reasons, the societal interest in ensuring that the subject offence be tried on its merits is, in my view, marginal.

[141] On the other hand, the prosecution of the subject charge has lingered in the Halton Provincial Offences Court system for a period of 26 months and 6 days, prior to the anticipated completion of the trial of the matter on January 9^th, 2012. The defendant has, at all times, shown an interest in asserting his right to his trial of the matter within a reasonable time.

[142] It has been shown that the portion of the overall trial delay in this proceeding attributable to the element of the limits on institutional resources, for which the prosecution is ultimately responsible, is that of 16 months and 7 days. This degree of institutional delay is well beyond the guideline threshold established by the Supreme Court of Canada for acceptable periods of institutional delay in Provincial Courts, being a period of delay in the range of 8 to 10 months.

[143] I have found that the defendant’s right to a fair trial has been prejudiced by the extent of unacceptable institutional delay in this proceeding. After carefully weighing and balancing these various considerations, I am satisfied, on a balance of probabilities, that the defendant’s right to be tried on the subject charge within a reasonable time, has been infringed and that the defendant’s interests pertaining to his right to make full answer and defence in respect of the charge outweighs the minimal public interest in seeing that the subject H.T.A. offence is tried on its merits.

THE DECISION

[144] In adjudicating the defendant’s subsections 11(b) and 24(1) Charter application, I have engaged in a judicial balancing of the interests which subsection 11(b) of the Charter is designed to protect against factors which have, in this particular case either inevitably led to trial delay or have otherwise been the cause of the delay.

[145] After assessing and balancing these various factors, I have determined that of the 26 months and 6 days of overall trial delay in this matter, from November 3^rd, 2009 until January 9^th, 2012, 16 months and 7 days of that period is attributable to unacceptable institutional delay, for which the prosecution is responsible.

[146] Furthermore, I have determined by reasonable inference, that based on the excessive length of the institutional delay, the defendant has suffered prejudice to or impairment of his right to a fair trial in respect of the subject proceeding.

[147] Finally, I have engaged in a balancing of the interests of the defendant in seeking a stay of the subject proceeding under subsection 24(1) of the Charter, against the interests of society in ensuring that criminal or quasi-criminal offences are tried on their merits. Upon engaging in this judicial balancing exercise, I have found that the defendant’s right to be tried on the subject careless driving offence within a reasonable time and his right to be granted a remedy of a stay of the proceedings if that right is denied to him, outweighs the societal interest in seeing that all persons “who transgress the law are brought to trial and dealt with according to law”.

[148] Accordingly, I am satisfied, on a balance of probabilities that the defendant’s right to be tried on the subject offence within a reasonable time, under subsection 11(b) of the Charter, has been infringed. The appropriate and just remedy for this Charter violation under the authority of subsection 24(1) of the Charter is a stay of proceedings.

[149] Accordingly, the charge of careless driving contrary to section 130 of the H.T.A. against the defendant herein, as set out in Certificate of Offence no. 1260-1649263A, is endorsed as being stayed, pursuant to subsection 24(1) of the Charter.

Released: January 3^rd, 2012

Signed: “Justice of the Peace Kenneth W. Dechert”

[^1]: Section 130 of the Highway Traffic Act was amended effective January 1, 2010. As of December 31, 2009, that section read as follows:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $200 and not more than $1000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence may be suspended for a period of not more than two years.

Section 130 of the Highway Traffic Act, from January 1^st, 2010 to the present time, reads as follows:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.

[^2]: The Good Government Act, 2009, S.O. 2009, c. 33, enacted on December 15, 2009, effected a number of changes to the Provincial Offences Act. Certain amendments to the Provincial Offences Act, took effect on December 15, 2009. Further amendments to the Provincial Offences Act took effect on June 15, 2010 and other amendments will come into force on March 1, 2012.