Court File and Parties

Court File No.: Toronto 12001353 Date: 2012-02-08 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Eric Leung

Before: Justice J.W. Bovard

Heard on: January 3, 2012

Reasons for Judgment released on: February 8, 2012

Counsel:

• Ms. H. Song, for the Crown
• Mr. P. Lindsay, for the accused Eric Leung

Reasons for Judgment

Bovard J.:

Introduction

[1] This is a ruling on an application for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms for breaches of s. 11(b) and s. 7 of the Charter. The police charged Mr. Leung with 'Over 80' on March 10, 2010.

[2] The onus is on the defence to prove on a balance of probabilities that Mr. Leung's Charter rights were breached and, if they were, that the court should enter a stay of proceedings.

The Purpose of s. 11(b)

[3] In R. v. Askov, [1990] 2 S.C.R. 1199, the court held that:

Section 11(b) explicitly focuses upon the individual interest of liberty and security of the person. (Paragraph 43)

Although the primary aim of s. 11(b) is the protection of the individual's rights and the provision of fundamental justice for the accused, nonetheless there is, in my view, at least by inference, a community or societal interest implicit in s. 11(b). That community interest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Second, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest. (Paragraph 44)

The Proper Approach for Analysing an Application Under s. 11(b)

[4] The proper approach in determining whether a person's rights under s. 11(b) have been breached was set down by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay (Para. 26).

[5] The police charged Eric Leung with 'Over 80' in an Information sworn on March 10, 2010. This is when the s. 11(b) clock starts ticking: Morin (Para. 30). The end of the period of delay that is in issue is January 3, 2012. This was the second continuation date of a trial started on March 7, 2011. This is a delay of approximately 21 months and three weeks, which is sufficient to trigger an inquiry into the reasons for the delay.

[6] Morin outlined the factors that must be considered in determining the causes of the delay as follows:

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 delay; and
4. Prejudice to the accused.

(Para. 31)

Length of the Delay

[7] The length of the delay is 21 months: March 10, 2010 when the Information was sworn to January 3, 2012 the last continuation date of the trial.

Waiver of Time Periods

[8] There is no waiver of any time period by Mr. Leung.

Chronology and Reasons for the Delay

[9] March 10, 2010 - the Information was sworn and the police released Mr. Leung on a Promise to Appear and gave him a first appearance date of April 21, 2010:

This is one month and 11 days of delay, which I characterize as part of the neutral intake period.

[10] In R. v. Lahiry, 2011 ONSC 6780 @ para. 22, Code J. stated that "The normal six week return date on an appearance notice, issued at the police station, is a reasonable period to carry out… preliminary tasks, before requiring a first appearance in court. Indeed, more time is usually needed after the first appearance to complete these steps. See: R. v. Ham, 2010 ONCJ 632."

[11] The steps to which Code J. referred are the police preparation of disclosure, the Crown's review, vetting and editing of the disclosure, the retaining of counsel by the accused, legal aid applications, defence counsel's interview of the accused and any witnesses and the securing and preservation of any documentary or real evidence.

[12] Accordingly, I characterize this period as part of the neutral intake period: Lahiry @ para. 19.

[13] April 21, 2010 – Mr. Leung appeared in court and the Crown gave him initial disclosure. Duty counsel told the court that Mr. Leung wanted to retain counsel and the court adjourned the case to May 19, 2010:

This is 28 days of delay, which I characterize as intake neutral delay for the reasons stated above.

[14] This is 28 days of delay, which I characterize as part of the neutral intake period for the reasons stated above.

[15] This delay brings the case about nine days beyond what Code J. held is the "normal intake period". He pointed out that "in a simple summary conviction drinking and driving case, like R. v. Morin,… two months was held to be reasonable." He also cited R. v. Meisner (2003), 57 W.C.B. (2d) 477 "where Hill J. held that two months was a normal intake period" in routine drinking and driving cases."

[16] The "normal intake period" may have to be extended a bit in the case at bar because unlike in Morin there is a Charter application for the exclusion of evidence because of alleged breaches of Mr. Leung's rights under sections 7, 8, and 9. This takes it out of "Morin" simplicity. I could not find a reference in the Meisner case to a Charter application other than the s. 11(b) motion. One might argue that these days it is routine in drinking and driving cases to have Charter motions for the exclusion of evidence for alleged breaches of a variety of Charter rights. Nonetheless, however routine these cases are becoming, Charter motions complicate and lengthen drinking and driving cases. That being said, the case at bar is not a complex or difficult case. I would characterize it as a modern day routine drinking and driving case with a routine Charter motion.

[17] For the above reasons I characterize this delay as part of the neutral intake period.

[18] May 18, 2010, the day before the next court appearance, defence counsel sent a letter to the Crown requesting the following disclosure:

Approved Instrument

• The complete historical record of the maintenance and use of the Approved Instrument
• The complete historical record with details and particulars of the inspections of the simulator and simulator thermometer used with the Instrument
• The calibration logs showing the changing of the alcohol standard solution for the two months leading up to the date of the alleged offence and for one month after, including:
  • The serial number and location of the instrument
  • The date that the alcohol standard was changed
  • The manufacturer, lot number and expiry date of the new alcohol standard
  • The simulator temperature during, and the result of the calibration check performed immediately after the standard was changed
  • Any observations made during the changing of the standard
  • The name and/or badge number of the individual who changed the standard
• The maintenance logs showing:
  • Dates that the instrument was either placed in or removed from service
  • Dates that the instrument was transferred to a new primary testing facility, excluding temporary uses at hospitals
  • Information about preventative maintenance inspections and calibration of the instrument including: date and the inspection report
  • Information about the instrument's mechanical breakdowns including: date, description of malfunction, action taken, and repairs performed
• Proof of the date and times of the last 50 calibration checks on the instrument prior to the test on Mr. Leung

Approved Screening Device

• Details and particulars of the inspection of the approved screening device and accessory equipment when they were first put into service and of all subsequent inspections thereafter up to the time of the breath tests in this case, including records of parts replaced and any modification to hardware or software and any approvals of such modifications.
• The maintenance logs recording the device's history of use, problems and maintenance
• The calibration logs showing, inter alia, the results of calibration checks for the two months leading up to the date of the alleged offence and one month thereafter

[19] May 19, 2010 – The defence states that they have just been retained and ask that the case be adjourned to June 16, 2010 for the additional disclosure referred to in its letter dated May 18, 2010.

This is a delay of 28 days, which I characterize as intake neutral delay for the reasons stated above.

[20] June 16, 2010 - The defence ordered the transcript, but did not receive it from the reporter and, consequently, could not provide it to the court.

[21] But in terms of what happened between April 21, 2010 and July 21, 2010, the Applicant's factum provides a chronology chart that states that the defence was obtaining disclosure, conducting a pre-trial with the Crown and setting a date for a judicial pre-trial. These are all "intake" related activities.

June 16, 2010 Disclosure Letter

[22] The defence sent a letter to Mr. Goddard of the Crown's office dated June 16, 2010 stating that on the court appearance of May 19, 2010, "our office was told to speak to you in order to expedite the disclosure" previously requested in the defence's first disclosure letter of May 18, 2010. All that the Crown had told the defence up to this point was that they forwarded the defence request to the officer in charge of the case. The letter stated that the defence "would like to move the matter along and set a date on the next appearance."

[23] July 7, 2010 – The defence asked for an adjournment to July 21, 2010 for further disclosure and undertook to send a further letter to the Crown requesting the outstanding disclosure.

July 7, 2010 Disclosure Letter

[24] The defence sent another letter to Mr. Goddard on July 7, 2010 stating that when the matter was in court on June 16, 2010 (no transcript) three items of disclosure were outstanding:

• In-car video
• Booking and breath video
• Intoxilyzer and screening device disclosure as per my letter dated May 18, 2010

[25] Mr. Lindsay, defence counsel, wrote that as of July 7, 2010 he had not been told that these items were available, but upon going to the Crown's office on July 7, 2010 they gave him the booking and breath video, but the in-car video tape was not yet available. He stated that he required both video tapes in order to conduct a "proper pre-trial".

[26] In R. v. Maxwell, [2006] O.J. No. 4604, at paragraph 21, Lipson J. underscored the importance of the video tapes for the purposes of pre-trial meetings:

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

See also: R. v. Proo, 2011 ONCJ 379, [2011] O.J. No. 3343 at paragraph 28.

[27] Mr. Lindsay referred me to the decision in R. v. Godfrey, [2005] O.J. No. 2597 in which J.M. Wilson, J. found at paragraph 7 that "Early disclosure of the video tape taken at the police station should be routine and the norm in routine cases". The case at bar is a routine case, but I would not characterize the disclosure of the video tapes of what occurred at the police station as "early disclosure" because it was approximately four months after the police laid the charge.

[28] In R. v. Farry, [2010] O.J. No. 1977, (Ont. Sup. Ct. of Justice), Trotter J. dealt with a case where DVD disclosure was not available until four and one half months after the date of arrest. He stated his concern with this as follows:

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

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

[29] In the case at bar the Crown conceded that it does not have a reason for the late disclosure of the video tapes. This is an important aspect of this case because it shows how tardy disclosure bogged the case down in the "intake" period. Code J. stated in Lahiry at paragraph 19 that "pre-trial resolution meeting[s]" are part of the "neutral intake period". In the case at bar, since the trial was going to last at least one day, according to the practice of the court at Old City Hall, a judicial pre-trial was required before a trial date could be set. This would be normally held after the defence meets with the Crown for a pre-trial discussion. The reason for this requirement is so that a judge can examine the case with counsel and try to resolve the matter without the necessity of a trial, or if this is not possible, the judge works with counsel to narrow the issues and to arrive at a realistic estimate of how long the trial will take. After the judicial pre-trial is finished, the judge gives his or her direction to counsel and to the trial coordinators as to how many days should be set aside for the trial. This is an effort to try to minimize the expenditure of court resources where possible.

[30] The effect of the court's practice is that it prevents counsel from setting a date for a trial that will last one day or more until a judicial pre-trial is held.

[31] This situation in the case at bar should be examined in light of R. v. Kovacs-Tatar, [2004] O.J. No. 4756. The charge in Kovacs-Tatar was a sexual assault by a health care provider and the Crown intended to call expert evidence. The defence refused to set a trial date until it received the expert's report, which was the only piece of disclosure that was outstanding. In these circumstances the Court of Appeal took issue with this:

Something should be said about counsel's refusal to set a date because the expert report was not available. The Crown is obliged to make initial disclosure before the accused is called upon to plead or to elect the mode of his trial. See the comments of Sopinka J. in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.) at pp. 13-14. In this case, since the Crown had elected to proceed summarily, election of the mode of trial was not an issue. Having regard to the length of time before trial, the appellant's counsel knew the expert's report would be completed many months before the appellant had to plead and the appellant would have had ample time to obtain his own expert's report had he wished to do so. Also, because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The defence was not forfeiting its "Stinchcombe rights" by agreeing to set a trial date. Counsel for the appellant did not act reasonably in insisting that he receive the expert report before setting a trial date.

[32] It is not clear in Lahiry if "pre-trial resolution meetings" include judicial pre-trials. The reason that I point this out is because in R. v. C.R.G., [2005] O.J. No. 3764, Rosenberg J.A. held at paragraph 30 that judicial pre-trials are part of institutional delay:

In my view, reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists. That court has seen a huge increase in its caseload so that, according to statistics filed in the Morin case, it handles 95 percent of criminal cases in Ontario: see R. v. Morin, at p. 27. It is entirely reasonable that the court attempt to take measures that will reduce the impact of cases that are expected to be a particular burden on resources. The purposes of the judicial pre-trial are, in part, to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of the time required to hear the case. Whether there is potential benefit from and room for some flexibility in the requirement for, and scheduling of, pretrials in the Hamilton Ontario Court of Justice, is principally a matter for that court. That said, I do agree that the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case. See R. v. Chatwell (1998), 122 C.C.C. (3d) 162 (Ont. C.A.) at para. 11. (Emphasis added)

[33] July 21, 2010 - In the case at bar, the transcript from July 21, 2010 shows clearly that a 21 day delay was incurred between July 21, 2010 and August 11, 2010 for the purpose of having a mandatory judicial pre-trial. At page 2 of the transcript, Mr. Lindsay told the court that he had conducted a Crown pre-trial that day and he was ready to set a date for trial, "but because it's a one day trial, plus a disclosure motion, we have to do a JPT."

[34] Mr. Lindsay also mentioned that he had not yet received the "Intoxilyzer and screening device disclosure" that he requested "almost two months ago." But he was content to set a trial date upon receiving the in-car video. He said that his client was "anxious to move the matter along."

[35] Counsel obtained a date for a judicial pre-trial of August 11, 2010, which was the first date offered, so the court adjourned the matter to that date.

[36] There were 21 days of delay between July 21, 2010 and August 11, 2010, which, pursuant to C.R.G., I characterize as institutional delay.

[37] August 11, 2010 – Counsel held a judicial pre-trial and afterwards set January 7, 2011 for a half day disclosure motion. The parties had obtained a first trial date of March 7, 2010 from the trial coordinators, but the Justice of the Peace did not want to set the trial date until the disclosure motion was heard so he adjourned the setting of the trial date to January 7, 2011.

[38] The defence stated that January 7 and March 7, 2010 were the "first offered dates. Counsel did have much earlier dates and our client does not waive his s. 11(b) rights" (Page 5 of the August 11, 2010 transcript).

[39] The defence did not supply the court with the "much earlier dates" on which it would have been ready to proceed to trial. The Trial Verification Form simply states "first available date offered was taken." This would have been very useful information for the court to have given that the appellate courts have held that it is crucial information in order to determine the amount of institutional delay involved in acquiring a trial date. In Lahiry at paragraphs 25 to 36, especially at paragraph 26, Code J. stated that supplying this information "is a correct and necessary approach to the calculation of institutional delay."

[40] Citing from several authorities, Code J. explains that this information is crucial so that the court can correctly distinguish between the time that it takes counsel to prepare for the trial, which is part of the inherent time requirements of the case and is properly characterized as neutral in the s. 11(b) calculation, and institutional delay which, according to Morin (supra) is calculated from the date on which "the parties are ready for trial but the system cannot accommodate them." Code J. points out that the courts have held that counsel is never prepared to proceed to trial "immediately" after the trial date is set. Therefore, the time that it takes counsel to clear his/her calendar and prepare for trial is part of the inherent time requirements of the case, not part of institutional delay (Para. 26).

[41] I find that the same logic applies to when counsel in the case at bar would have been ready to argue the disclosure motion.

[42] My understanding of Lahiry is that when the defence fails to tell the court the earliest dates on which it could have started the trial, the court is required to estimate when the earliest time would have been based on all of the circumstances.

[43] In argument, the court asked Mr. Lindsay what the earliest date was on which he could have conducted the trial. He told the court that the case at bar is distinguishable from Lahiry because in the case at bar the Crown did not finish giving the defence disclosure until the morning of trial when it gave the defence an 11 page document of disclosure. The 11 page disclosure dealt with the record of inspections, maintenance and repairs of the Approved Screening Device between March 20, 2004 and March 7, 2011.

[44] Mr. Lindsay contended that he could not have conducted the trial any earlier because he did not have full disclosure yet. This argument apparently convinced the Crown because counsel jointly submitted to the court that the period between August 11, 2010 (the day that the trial date was obtained from the trial coordinators) and March 7, 2011 (the first trial date) is institutional delay. Although the Justice of the Peace refused to officially set the date for trial on August 11, 2010 because he wanted the court to deal with the disclosure motion first, March 7, 2011 is the date that the trial coordinators gave the parties and it was the date on which the trial started. Therefore, for all intents and purposes August 11, 2011 was the day the trial date was set.

[45] I find that the Crown and defence fell into the same error that Justice Code corrected in Lahiry and its companion cases. In paragraph 2, at the beginning of his decision Code J. stated that:

The one error that is common to all four appeals is the proper calculation of institutional delay. In all four cases, the entire period from the set date appearance to the trial date was automatically characterized as systemic or institutional delay, without further analysis. This is not a correct approach to calculating this particular cause of delay, given that institutional delay only "starts to run when the parties are ready for trial but the system cannot accommodate them", as Sopinka J. put it in R. v. Morin (1992), 71 C.C.C. (3d) 1 at p. 18 (S.C.C.). The Court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were ready to try the case.

[46] Code J. also pointed out that "The court is not bound by the Crown's erroneous concessions, especially in constitutional litigation" (Para. 35).

[47] I question how the Crown can avoid responsibility for some of this delay because had it provided disclosure in a timely manner, the court would have then been bound to follow the logic set out in Lahiry and to ascribe a month or two of this delay to the preparation time that the defence would have required to get ready for the disclosure motion and for the trial. The result of this would have been that this month or two would have been classified as part of the inherent time requirements of the case, rather than institutional delay.

[48] However, I find that I can still reasonably ascertain a period of time that can be fairly attributed to defence preparation because even though the Crown did not make full disclosure prior to the trial date, a reasonable inference can be drawn that the defence spent some time preparing for trial because it was able to start the trial in spite of receiving late disclosure on the day of trial. In fact, on January 7, 2011, the day that the disclosure motion was to be heard, the defence abandoned the motion because the disclosure issues were resolved except for "a couple of points". This means that as of January 7, 2011, the defence had sufficient disclosure to prepare for the trial to a significant degree.

[49] Mr. Lindsay postulated that since he specializes in drinking and driving cases he would have been ready to conduct the trial at the end of August 2010, but I do not think that this takes into consideration that the defence intended to call an expert toxicologist and given the court's experience in these matters they are usually not available on just 20 days notice.

[50] Based on Meisner (supra), the circumstances of this case and on what Mr. Lindsay told the court, I estimate that he would have needed at least 30 to 60 days to clear his calendar, arrange for the toxicologist and to prepare for the trial. I will settle on 30 days as what I find is a reasonable amount of time to allow Mr. Lindsay to clear his calendar, arrange for the toxicologist and conduct the preparation that he could using the disclosure that he had. The reason for this is that Mr. Lindsay was able to use the disclosure that he had to prepare sufficiently to begin the trial in spite of receiving the late disclosure. This is a testament to his expertise in these matters and to his diligence in trying to proceed with the trial as soon as reasonably possible. However, it also means that he did spend some time preparing for the trial before the received the late disclosure. Consequently, I find that this delay should be categorized with the inherent time requirements.

[51] Between August 26, 2010 and January 5, 2011 the defence and Crown exchanged the following further letters about disclosure:

• August 26, 2010 – The defence requested ICAD reports and radio transmissions.
• September 15, 2010 – The defence requested further explanation of the Calibration Checks Report, Operation Errors Report and of the logs of the 50 tests before and after Mr. Leung's breath tests.
• October 15, 2010 – The Crown who was case managing the case wrote to the defence seeking clarification of some of its disclosure requests and stating the Crown's policy regarding the defence disclosure requests.
• December 10, 2010 – The Crown who was assigned to try the case sent the defence a letter asking for the defence's materials on the disclosure motion and asked if there were a way to resolve the matter.
• December 15, 2010 – The defence sent a letter to the Crown explaining that he received the disclosure regarding the explanation of certain codes used in the disclosure in Mr. Leung's case by way of disclosure in another similar case that he had in another court house. Therefore, he no longer required this disclosure in Mr. Leung's case. But, the defence stated that disclosure of "three materials with respect to the approved screening device used in his case" (emphasis in original) was still missing. The defence stated that if the Crown provided this, he would not have to proceed with the disclosure motion.
• January 5, 2011 – The Crown sent a letter to the defence which included further disclosure and asking if, in light of this, the defence was still going ahead with the disclosure motion.
• The defence replied by letter on the same day posing two questions about the disclosure, the answers to which he needed in order to decide whether to continue with the disclosure motion.

[52] January 7, 2011 – the parties appeared in court and the defence abandoned the disclosure motion because the disclosure issues were resolved except for "a couple of points". The defence suggested that the matter be put straight over to the previously assigned trial date of March 7, 2011, 10 a.m.

[53] The Crown stated that "I'm in agreement with my friend that I will be following up on the last little piece. I don't know if there is anything or not but I'll make my inquires and have a timely response, okay?"

[54] It is important to note that the Crown's tardy disclosure caused the defence and the court to have to set a separate date for the disclosure motion and in the end, the Crown disclosed everything that the defence requested. The inference is that it was relevant and should have been disclosed as part of the Crown's normal disclosure package. Had this been done it would not have been necessary to delay the trial date by having to first set a date for the disclosure motion and perhaps the date set for the disclosure motion could have been used as the trial date.

[55] I recognize that although it is possible that had the Crown disclosed this information in a timely fashion the date for the disclosure motion could have been used to begin the trial, I must also recognize that as tempting as it is to assume that all of the witnesses would have been available on the day of the disclosure motion, perhaps they would not have been. Had they been, I would have found that the delay between the date of the disclosure motion (January 7, 2011) and the trial date (March 7, 2011) would have been the Crown's fault. But this issue was not addressed during the s. 11(b) motion and I find that it would be too speculative to make these assumptions.

[56] However, I think that it is fair to estimate that it took the defence at least two weeks to prepare for the disclosure motion in addition to the time that it took to prepare for trial.

[57] The delay between August 11, 2010 and March 7, 2011 is 208 days, which is 6.83382153 months. I will round this off to 7 months.

[58] For the above mentioned reasons, I ascribe 30 days of this delay to the inherent time requirements of the case because it is the time estimate that I make for defence preparation for trial.

[59] For the above mentioned reasons, I ascribe 14 days of this delay to the Crown because this is the time that I estimate it took the defence to prepare for the disclosure motion, which was caused by the Crown's tardy disclosure.

[60] This leaves 164 days, which is 5.392 months. I will round this off to 5 1/2 months. I ascribe this period to institutional delay as being "the period that starts to run when the parties are ready for trial but the system cannot accommodate them": Morin at paragraph 42.

[61] March 7, 2011, the trial date – At 1:45 p.m the defence received the final missing disclosure in the form of 11 pages which were faxed to the Crown and then given to the defence. Mr. Lindsay reviewed the disclosure and agreed to start the trial that afternoon. It is clear that the trial was set down for one day, but could not start until the afternoon because of late disclosure. This was the Crown's fault.

[62] Two witnesses were heard and the case was adjourned to July 28, 2011 for further evidence. The defence thought that the trial would only take half of a day more to finish, but one day was set out of an abundance of caution. In any case, the trial coordinators told counsel that an earlier date could not be secured even if it were for only half of a day – it was the same delay for one day as for half of a day. Pages 42 to 45 of the transcript show that the court and counsel and the trial coordinators tried mightily to set an earlier date, but it was impossible.

[63] The trial verification form indicates that on the following dates that the trial coordinators offered the Crown was not available: July 20, 21, 2011 and that the defence was not available on: June 23, 24, 2011; July 5-6, 18, 2011.

[64] The defence submitted an Affidavit sworn by Anna Mok of their office. It states in paragraph 2 a) that Mr. Lindsay informed her that "when the trial continuation date in the Applicant's matter was set on March 7, 2011, Mr. Lindsay and the toxicologist had the following earlier dates available:

April 2011: 19, 21, 26, 27 May 2011: 26, 27 June 2011: 30 July 2011: 20, 21

[65] The delay between March 7, 2011 and July 28, 2011 for the purpose of finding a continuation date is 143 days. This is 4.701 months, which I will round off to 5 months.

[66] In Lahiry, Code J. noted at paragraph 67 that:

There is now a substantial a body of case law dealing with this issue of re-scheduling a trial that has not commenced or that has not been completed on the scheduled trial date. These authorities hold that the case must be given priority in the system and that the delays resulting from re-scheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances. See: R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.); R. v. Allen, supra at pp. 347-351; R. v. Satkunanathan (2001), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.); R. v. M.(R.) (2003), 180 C.C.C (3d) 49 at paras. 6-9 (Ont. C.A.); R. v. W.(A.J.) (2009), 2009 ONCA 661, 257 O.A.C. 11 at paras. 29-43 (Ont. C.A.); R. v. Khan, supra at paras. 58-71.

[67] In R. v. Allen (1996), 110 C.C.C. (3d) 331 (C.A.), the court said at paragraph 27 that:

When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate: R. v. Hawkins (1991), 6 O.R. (3d) 724 at 728 (C.A.), aff'd, (1992), , 11 O.R. (3d) 64 (S.C.C.); R. v. Philip (1993), 80 C.C.C. (3d) 167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. (Emphasis added)

[68] In the case at bar the reason that a continuation date had to be found was that on March 7, 2011, the trial began at 2:15 p.m. because of the last minute disclosure. It was not a case of an inaccurate estimate of time. It is not certain, but it is possible that had the case begun as scheduled at 10:00 a.m., it could have finished that day. It was set down for one day after a judicial pre-trial so it is reasonable to assume that one day would have been sufficient. In support of this assumption I point out that although the case started late, it proceeded expeditiously with two witnesses being completed in half of a day. As a result, I find that the Crown must share the responsibility for this delay with institutional delay. The time requirements of the case did not expand from the setting of the trial date so I cannot say that this delay was caused by inherent time requirements.

[69] Therefore, in the circumstances of the case at bar, I find that it is appropriate to apportion half of the delay to the Crown, which is 71 ½ days or 2.334 months rounded off to 2 ½ half months and the other half to institutional delay.

[70] July 28, 2011, the first continuation date – In his submissions, Mr. Lindsay, defence counsel, reminded the court that it had two continuations that it dealt with in the morning. The Crown did not object to this and I do not have any reason not to accept what Mr. Lindsay says. There is no reference to this in the transcript because the morning's proceedings were not transcribed and nothing was said about this when Mr. Leung's case began in the afternoon. The transcript does show that Mr. Leung's matter was spoken to briefly by the court in the morning or early afternoon before the 1 o'clock lunch hour, but for reasons that are not clear, counsel were not in court so it was adjourned to 2:15 p.m. for continuation of the trial.

[71] Upon resuming at 2:15 p.m, counsel went to get a continuation date because it was clear that the case was not going to finish that day. Counsel tried to get the earliest date and the trial coordinators offered August 2, September 21, September 29, and December 22, but the defence was not available on the first three dates and the court was not available on the last date due to having to preside at another court location. The date selected was January 3, 2012.

[72] The case resumed at 3:21 p.m. and one witness was completed (another example of the efficiency of how this case proceeded once it began to be heard). The case was adjourned to January 3, 2012.

[73] An Affidavit sworn by Anna Mok of defence counsel's office states in paragraph that "when the trial continuation date in the Applicant's matter was set on July 28, 2011, Mr. Lindsay and the toxicologist had the following earlier dates available:

August 2011: 11, 17, 22, 24, 31 September 2011: 7, 13, 14 October 2011: 25 November 2011: 1, 4, 14, 21, 22 December 2011: 12, 14, 20, 21, 22 January 2012: 2

[74] There is nothing to indicate that the inherent time requirements increased. It is not clear why the case did not resume at 10 a.m or soon thereafter, but the parties worked efficiently in finishing with one more witness in spite of resuming the trial at 3:21 p.m.

[75] The delay between July 28, 2011 and January 3, 2012 is 159 days, which is 5.3 months. I will round this off to 5 months, 6 days. Based on the above jurisprudence and the circumstances of the case at bar, I will apportion this delay to institutional delay.

[76] January 3, 2012 - the defence brought this s. 11(b) motion.

Actions of the Accused

[77] With regard to the actions of the accused, I find that Mr. Leung did not do anything that caused delay.

Other Reasons for the Delay

[78] With regard to other reasons for the delay, I find that there are none.

Summary of the Characterization of the Delay

[79] For the above mentioned reasons I characterize the delay in this case as follows:

The Neutral, Intake Period – 3 months, 8 days

[80] March 10, 2010 - April 21, 2010 - the Information was sworn and the police released Mr. Leung and gave him a first appearance date of April 21, 2010: one month and 11 days

[81] April 21, 2010 – May 19, 2011 - Mr. Leung appeared in court and the Crown gave him initial disclosure. Duty counsel told the court that he wanted to retain counsel and the court adjourned the case to May 19, 2011: 29 days

[82] May 19, 2010 – The defence stated that they had just been retained and asked that the case be adjourned to June 16, 2010 for the additional disclosure referred to in its letter dated May 18, 2010: 28 days

Institutional Delay – 13 months, 27 days

[83] July 21, 2010 to August 11, 2010 - Counsel obtained a date for a judicial pre-trial of August 11, 2010, which was the first date offered, so the court adjourned the matter to that date: 21 days.

[84] The time between the set date day of August 11, 2010 to March 7, 2011, the first trial date, minus 30 days for defence preparation for trial and 14 days for the disclosure motion: 164 days – 5 ½ months

[85] March 7, 2011 to July 28, 2011- the delay for the purpose of finding the first continuation date is 143 days. Half, 71 ½ days, is apportioned to institutional delay - 2 ½ mo.

[86] The delay between July 28, 2011 (the first continuation date) and the second continuation date of January 3, 2012: 5 months, 6 days.

Crown Delay – 3 months

[87] The 14 days that it took the defence to prepare for the disclosure motion lies at the feet of the Crown because it caused the need for the disclosure motion by delaying disclosure that it should have given when the defence first asked for it.

[88] March 7, 2011 to July 28, 2011- the delay for the purpose of finding a continuation date is 143 days. The Crown is apportioned half or 71 ½ days.

Inherent Time Requirements of the Case – 30 days

This is the time that I estimate it took the defence to prepare for the disclosure motion and for partial trial preparation.

Prejudice

[89] In Askov, Cory J. held that:

There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay. (Para. 69)

[90] Lamer C.J.C. stated in Askov that:

Cory J. adopts the consideration of "prejudice" from Wilson J.'s position in Mills, at p. 967:

There may, indeed, be an irrebuttable presumption in favour of prejudice flowing from the fact of an accused's being charged with a criminal offence but that is not protected by s. 11(b) of the Charter. The prejudice arising from anxiety, stress and stigmatization by family and friends also exists where the accused is tried within a reasonable time. What the accused has to demonstrate under s. 11(b), in my opinion, is that he has suffered an impairment of his liberty and security interests as a result of the Crown's failure to bring him to trial within a reasonable time, not as a result of the Crown's having charged him. (Para. 114)

[91] More recently, Code J. commented on the prejudice factor in Lahiry, stating:

The fourth factor is prejudice to those interests of the accused that s. 11(b) seeks to protect, namely, liberty, security of the person, and fair trial. Prejudice to one or more of these interests can be inferred, without extrinsic evidence, from "a very long and unreasonable delay", in other words, from delay that is "substantially longer than can be justified on any acceptable basis". In a case where the period of unjustified delay is "closer to the line", the accused may lead evidence of actual prejudice to one or more of the protected interests, in order to show "that there has been unusual prejudice by reason of special circumstances". See: R. v. Askov, supra at pp. 474 and 482-4; R. v. Morin, supra at 23-4; R. v. Smith, supra at p. 111. (Lahiry (supra) at para. 8)

[92] In the case at bar, Mr. Leung submitted an affidavit and also testified in support of his contention that he suffered actual prejudice.

[93] Mr. Leung is 32 years old and does not have a criminal record or any other outstanding charges. He works in information technology at Rogers where he has been for about 4 ½ years. In addition, he has his own business "involving made-to-measure dress suits and shirts". He has had this business for about one year.

[94] It has been "very hard" for him to have this case outstanding for 21 months. He worries about it all of the time and this worry has become worse the longer it takes. He is worried about losing his driver's licence because he has to drive for both of his jobs. He is worried about the financial consequences of being convicted, such as, increased insurance rates and the Ministry of Transport fees for the various driving programs that he would have to take. In addition, he had to pay fees for his expert toxicologist to come to court on two occasions. He also worries about having a criminal record and "its potential effects on my future." He worries as well because his memory has faded.

[95] In cross-examination, he stated that he has not seen a doctor or started taking medication as a result of his concerns. His employment has not changed due to the trial and he still has his licence so he has been able to drive while awaiting trial. None of his personal relationships have been affected. He has had some sleepless nights depending on how near his next court dates were, but he has not seen a doctor about it. With regard to his memory, his counsel interviewed him early on in the case and made notes that he can use to refresh his memory.

[96] With regard to his bail, Mr. Leung was released on a Promise to Appear and, therefore, he was not subject to strict bail conditions.

[97] Based on Mr. Leung's evidence and the circumstances of this case, I find that he has not established that he suffered actual prejudice. The evidence does not establish "that there has been unusual prejudice by reason of special circumstances". I find that the presumed prejudice is the only prejudice that exists.

Balancing the Societal Interest in a Trial on the Merits Against the Rights of the Accused Under s. 11(b) of the Charter

[98] The court in Lahiry summarized the dangers of drinking and driving as follows:

It must be remembered that, for over twenty-five years now, drinking and driving has been regarded as a very serious offence. Indeed, it has been authoritatively stated that "it has a far greater impact on Canadian society than any other crime", that it is "clearly the crime which causes the most significant social loss to the country", and that "every drinking driver is a potential killer". See: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 at para. 16 (S.C.C.); R. v. McVeigh (1985), 22 C.C.C. (3d) 145 at 150 (Ont. C.A.); R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 at paras. 19-23 (Ont. C.A.). Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important in drinking and driving cases. (Para. 89)

[99] It is preferable to resolve drinking and driving offences on their merits whenever possible. In balancing society's interest in having cases decided on their merits against the Mr. Leung's rights under s. 11(b) of the Charter, I have considered all of the circumstances including Mr. Leung's breath readings, which were 130 and 120. The readings are not low, but neither are they high. I find that they fit into the high end of the low category. I also note that there was no accident. Mr. Leung does not have a criminal record for drinking and driving offences, or for any offence. Nor is he on bail for any other offence.

[100] All drinking and driving offences are serious because of the dangers involved even in cases where there is no accident and the breath readings are low. I would characterize the case at bar as being on the lower end of the spectrum with regard to seriousness. This somewhat attenuates the societal interest in having Mr. Leung tried on the merits.

Conclusion

[101] The institutional delay in this case is 13 months and 27 days. In Morin (supra) the court said that "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" (Paragraph 50). Recently, in Lahiry (supra), Code J. approved of this guideline for cases originating in Toronto: See paragraph 72.

[102] Morin pointed out, however, that the guideline is "neither a limitation period nor a fixed ceiling on delay" (Paragraph 43). In addition, the court said that "A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors" (Paragraph 46). And "The application of a guideline will also be influenced by the presence or absence of prejudice" (Paragraph 48).

[103] In addition to the institutional delay, there is a three month delay attributable to the Crown.

[104] The case at bar originated at the Old City Hall court house in Toronto. In R. v. Salehji, [2010] O.J. No. 4889, Hryn J. observed at paragraph 10 that:

There is current case law specific to the Old City Hall, that a reasonable delay with respect to drinking and driving cases should be at the lower end of the range of eight to ten months, set out in Morin; see Regina v. Bhatti, [2010] O.J. No. 3595, Regina v. Lima, [2006] O.J. No. 1746, Regina v. DePada, [2010] O.J. No. 2992, Regina v. Black, [2006] O.J. No. 513; see also Regina v. Sharma, [1992] S.C.J. No. 26 and Regina v. Meisner, [2003] O.J. No. 1948.

[105] I find that in all of the circumstances the institutional delay alone is sufficient to put the case significantly beyond the approved guidelines of eight to ten months. Although the only prejudice is the presumed prejudice, I find that this is an unreasonable delay and, therefore, breaches Mr. Leung's rights under s. 11(b) of the Charter. Consequently, the charge is stayed pursuant to s. 24(1) of the Charter.

Released: February 8, 2012

Signed: "Justice J.W. Bovard"