COURT FILE No.: Toronto 10 – 12004155

Citation: R. v. Warlow, 2012 ONCJ 28

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NIKI WARLOW

Before Justice Paul H. Reinhardt

Heard on 26 September & 24 November 2011

Reasons for Judgment released on 20 January 2012

Francine Borsanyi ...................................................................................................... for the Crown

Marco Forte .......................................................................................................... for the defendant

REINHARDT J.:

[1] In this proceeding, I heard from two Crown witnesses, Constable Cameron Ross, Badge 9898 and Constable Paul Gribbon, Badge 9552. In addition, as part of the Section 11(b) Charter application, I read the affidavit of the defendant, Niki Warlow, sworn 2 November 2011.

[2] Initially, prior to the commencement of the trial, by Notice of Application dated 9 September 2011, the defendant brought an application pursuant to 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”) for the exclusion of evidence premised on the alleged breach of her sections 8 & 9 rights at the time of her detention and arrest. After the commencement of the trial before me on 26 September 2011, defendant, on 2 November 2011 brought an application pursuant to 24(1) of the Charter seeking an order staying the proceedings due to the alleged violation of her right to have a trial within a reasonable time as guaranteed by section 11(b) of the Charter.

1: The History of the Case

[3] The time that elapsed between the date on which the information charging the applicant was sworn (27 September 2010) and the date on which the trial concluded (24 November 2011) was fourteen. The history of the case can be summarized briefly.

[4] On 12 August 2010 the applicant was arrested and charged with “Impaired Driving” and “Over 80” contrary to sections 253 (1) (a) and 253 (1) (b) of the Criminal Code. The applicant was subsequently released on a Form 10 and promised to appear in court six weeks later on 24 September 2010. Her driver’s licence and driver’s privileges were immediately suspended under the Highway Traffic Act for 90 days.

[5] On 24 September 2010, the applicant attended court personally along with counsel. There was no Crown brief in court and it became apparent that a valid properly sworn information had not been placed before the court. There was no disclosure and with the assistance of the defence counsel the applicant was re-summoned to appear on 2 November 2010.

[6] On 2 November 2010 the applicant appeared through counsel and initial disclosure was provided by the Crown. The booking video, breath room video, and in-car arrest video listed on the Toronto Police Service Exhibit List were not in the Crown brief and were not provided to counsel on that date. The matter was remanded to 18 November 2010.

[7] On 15 November 2010 the applicant faxed a letter to the Crown requesting the missing videos listed on the police exhibit list.

[8] On 16 November 2010 the Crown responded that the “missing breath room and booking DVD was available to be picked up at the Crown’s office and that a further request for the in-car arrest video had been forwarded to the officer-in-charge.

[9] On 18 November 2010 counsel picked up the available DVD disclosure and remanded the matter to 2 December 2010, at the request of the Crown in order to arrange for an initial pre-trial with the Crown.

[10] On 22 November 2010 counsel for the applicant was advised that the first available Crown pre-trial date was 9 December 2010.

[11] On 2 December 2010 the applicant again appeared through counsel and the matter was adjourned to 9 December to accommodate the earliest available Crown pre-trial date and to set a date for trial.

[12] On 9 December 2010 a Crown pre-trial was held and time estimates were established of one day for trial which was intended to include a likely Section 8 & 9 charter application on the basis of the lack of requisite grounds to either detain or arrest the applicant or make an approved instrument breath demand.

[13] On 9 December 2010, following the Crown pre-trial, the matter was further adjourned at the request of the defence to 14 December 2010 to consider possible resolution with the client.

[14] On 14 December 2010 counsel attended at the trial coordinator’s office to set a trial date. Although the defence was available for trial on many earlier dates, the first trial date that was offered was 13 September 2011, which was unavailable to the defence. The next trial date offered was 26 September 2011, which was accepted.

[15] On 26 September 2011, at approximately 10:30 a.m., Crown counsel advised the applicant’s counsel that there was an additional page of police notes which had not previously been disclosed, dealing with the grounds for the detention and arrest of the applicant. Despite an unsuccessful application for adjournment, the Crown case did not commence until noon and was interrupted in the afternoon by un-related criminal matters that were spoken to. As a result, only one witness, Constable Cameron Ross, Badge 9898 was completed, and the matter was further adjourned to the next available court date, 24 November 2011, for the completion of the Crown’s case.

[16] In her affidavit dated 2 November 2011, Ms. Warlow deposed that she is the primary care-giver to her grandmother, who she nurses, baths and feeds, and drives to her medical appointments. In addition, Ms. Warlow deposed that her mother does not drive and therefore both Ms. Warlow’s mother and grandmother rely on her to carry out regular shopping for groceries and household items for which she is regularly required to use her car and drive on a weekly basis.

[17] Ms. Warlow deposed that because of these family obligations she is particularly concerned about the delay in completing the trial, because of her anxiety that if convicted she will not be able to drive her car and carry out her family obligations.

[18] Ms. Warlow also deposed that she has suffered financial hardship due to the extended time to complete this matter and resultant costs of her lawyer’s fees that have continued to mount over the past fifteen months.

[19] In this proceeding, I have concluded that there has been a serious infringement of Ms. Warlow’s Charter-protected interests, for which the only appropriate remedy is a stay. These are my reasons.

2: The Legal Framework

[20] The law with respect to section 11(b) is found in R. v. Morin (1992), S.C.J. No. 25 (S.C.C.) The factors to consider are:

1. the length of the delay;

2. waiver, if any, of time periods;

3. the reasons for the delay, including

a. the inherent time requirements of the case;

b. the actions of the Crown;

c. the actions of the accused;

d. the limits on institutional resources;

e. other reasons for the delay; and

4. prejudice to the accused.

[21] A recent decision by Justice Michael Code in the Superior Court of Justice in this province, R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071, cited with approval in the Superior Court of Justice by Justice Ian MacDonnell in R. v. Beteta-Amaya [2011] O.J. No. 5136 and in the Ontario Court of Appeal by Madam Justice Janet Simmons on 12 January 2012 in R. v. Tran (2012) ONCA 18, has clarified a particular area of this legal framework, the proper calculation of systemic or institutional delay. In the four cases under appeal before Justice Code, the trial judges characterized the entire period from the set date appearance to the trial date as systemic or institutional delay. As stated by Justice Code, in paragraph 2 of his decision in Lahiry:

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. (Emphasis added)

2.1: The Relevant Principles as they apply to the case at bar

2.1(a): The Overall Period of Delay

[22] The overall period of delay is calculated from the date the information is sworn to the date the trial is completed. (See R. v. Kalanj, [1989] S.C.J. No. 71.) The information was sworn on 27 September 2010 and the trial completed on 24 November 2011, an overall period of fourteen months. As stated by Justice Code, in Lahiry this first factor is simply a mechanism for weeding out frivolous applications. It is only necessary to go on and consider the other three factors if the overall delay is of sufficient length to raise an issue as to its reasonableness. (See R. v. Askov, [1990] S.C.J. No. 106 and R. v. Morin, [1992] S.C.J. No. 25, supra.) I am satisfied that because of the passage of fourteen months, the delay in this case requires further scrutiny.

2.1(b): Reasons for Delay – The Intake Period

[23] Although Ms. Warlow was arrested on 27 August 2010 and she was required to come to court on 24 September 2010, when she came to court on that date with her counsel. There was no Crown brief, and no information before the court. It was only through the cooperation of defence counsel and a further appearance by counsel that a valid information, sworn 27 September 2010 and confirmed 2 November 2010 was placed before the court and jurisdiction over Ms. Warlow established by the filing of a designation by counsel. As a result, the matter could not be set down for trial until 14 December 2011, a period of over 3 and ½ months after her arrest, well outside the normal intake period of two months envisioned in Morin. In Kalanj, supra, the Crown successfully argued before the trial judge that the eight month delay in swearing the information was required to enable the Crown to complete a complicated conspiracy investigation. This was certainly not the case here. This was a simple, straightforward investigation in which all the investigation work was completed on the date of the initial arrest, or shortly thereafter, well before the initial appearance date set out in the promise to appear. The applicant retained counsel immediately after her arrest, at her expense, and appeared with counsel on the 24th of September in this courthouse.

[24] Because of this breakdown in the basic steps required to be taken by the prosecution, the parties could not begin the usual intake procedures until 2 November that are necessary before the parties can appear in court and state on the record that they are “ready to set a trial date”. In Morin, two months was held to be reasonable and in R. v. Meisner [2003] O.J. No. 1948 (Ontario Superior Court of Justice) Justice Casey Hill held that two months was a “normal” intake period in routine drinking and driving cases.

[25] This failure by the police to swear the initial information and to prepare a Crown brief and thus impair the Crown’s ability to provide disclosure in a timely fashion resulted in a total delay of over four months, calculated as: in the intake period, two and one-half months (27 September to 14 December) and a delay in the commencement of the usual intake procedures from 24 September until 2 November, a period of over one month.

[26] In the resulting intake procedures, again because of breakdowns in the police provision of material to the Crown, the Crown could not produce the breath room and booking video until 16 November, and the transcript of the proceeding on 2 December reveals that “in-car-arrest video” was still not disclosed. However, counsel for Ms. Warlow informed the court that he was prepared to set a Crown pre-trial even without this necessary disclosure, and a date for the Crown pre-trial meeting was set for 9 December.

[27] In my view the defence proceeded expeditiously, and made no efforts to prolong the intake period unnecessarily. The only time that could be attributed to defence counsel, during the intake period, the factor that has been found to require greater scrutiny in Lahiry was the brief period from 9 December to 14 December, when defence counsel requested an adjournment to discuss resolution with his client. 9 December was the first available date for the Crown pre-trial, and it was only after the Crown pre-trial and those discussions between counsel that defence counsel could review the trial and resolution options with the client and seek instructions. This five day delay was an entirely appropriate and brief request for an adjournment, in my view.

[28] I have therefore concluded that at least one month of the intake period was directly attributable to the police neglect in swearing the information, preparing the Crown brief to place before the court, and providing necessary disclosure to the Crown, and then through the Crown to the defence.

2.1(c): Reasons for The Delay – Calculating Institutional Delay

[29] The second period of delay was from 14 December 2010 to 26 September 2011, when the trial proceeded, a period of nine and one-half months. This is the period that is generally understood as the period of “institutional delay”, in the analysis by Justice Sopinka, in R. v. Morin, supra:

the period that starts to run when the parties are ready for trial but the system cannot accommodate them.

[30] In Lahiry, the court concluded that the approach to calculating “institutional delay” has to reflect not just the passage of time from the day the parties are ready to set the date, and the date they receive, but must take into account defence counsel’s actual and realistic availability to attend and represent the client at trial.

[31] Thus, Justice Code looks at two factors: 1) the first available date that the defence could attend to represent the client at trial, and 2) the availability of defence counsel on the dates at which time the court can provide a courtroom and judicial officer to hear the case.

[32] Using this approach, Justice Code reduced the “institutional delay” in the initial fact situation he dealt with in Lahiry from just less than eleven months (from 3 March 2010, when the trial date was set, until 28 January 2011, when the trial proceeded) to just over nine months. Here is his calculation, at paragraphs 36 and 37 of his judgment:

36 In any event, in this case the trial judge properly insisted that defence counsel file his instructing letter to his agent as an exhibit. As the trial judge put it, "it would have been nice to know what those [earlier available] dates were". As a result, it was clear from the evidentiary record on the s. 11(b) Motion that the earliest dates on which counsel could accommodate this new case in his calendar were in late April or early May of 2010. This would also allow counsel time to properly prepare the case for trial and to prepare his s. 11(b) Motion.

37 As a result, the period of systemic delay in the case at bar, at best, ran from April 23, 2010 until January 28, 2011. In other words, this period of delay was just over nine months rather than just under eleven months. The remaining one month and twenty day period, from March 3 until April 23, 2010, was part of the inherent time requirements of the case as counsel needed time to accommodate a new case in his calendar and needed time to prepare it. This period of just under two months carries neutral weight in the s. 11(b) analysis. (Emphasis added)

[33] In the case at bar, I do not have the benefit of the “instructing” or “set-date” letter, or any indication on the record of counsel’s earliest date to appear for trial, other than counsel’s written submission to me at paragraph 11 of his Factum that he had “many earlier dates available to conduct the applicant’s trial.” What I do know is that the first trial date offered by the trial coordinator to the parties was 13 September, a date which was unavailable to the defence.

[34] Despite this lack of a complete evidentiary record on this point, for the purposes of this ruling, I am prepared to “impute” a one month period as neutral based upon the reasoning in Lahiry. Although there are some counsel who are factually not available for an early trial date, because of their busy schedule, it is my experience that the vast majority of counsel are available, if court space were provided. This is a very straightforward case, and thus preparation time would not preclude a much earlier trial date.

[35] Using that framework, the period of institutional delay in this case to the first day of trial, 26 September 2011, is reduced from nine and one-half months to eight and one-half months.

2.1(d): Reasons for Delay – The Further adjournment for Completion of the Trial

[36] In the case at bar, the trial, which was scheduled to take one day, did not finish on 26 September 2011, but was further adjourned to 24 November 2011 in order to complete the Crown’s case and hear from the second Crown witness, Constable Paul Gribbon.

[37] It was in the interim period between the first and second days of trial, in the beginning of November 2011, that the applicant prepared her Charter application for a stay of proceeding based upon delay.

[38] In Justice Code’s judgment of 16 November 2011, in Lahiry, which addresses four trial court judgments involving delay, it is actually the second fact situation, the case of Jose Carreira that involves adjournments that occur after the first scheduled trial date. In Mr. Carreira’s case, the trial was originally set for 12 September 2008, “with or without counsel”. On subsequent dates, prior to the trial date, various factors intervened, including the defence request for adjournments and waivers of the interim time periods. On the second date set for trial, 23March 2009, the trial commenced at 2:30 p.m. because of other matters on the list. The arresting officer completed her examination—in-chief, but the matter was not finished, so the parties attended at the trial coordinator’s office and obtained a new date of 26 August 2009, for further evidence. In fact, for various interruptions, the matter again did not commence at all, and had to be further adjourned until 14 December 2009, and further evidence was heard, but not until 3:30 pm because of the heavy docket, and the matter was further adjourned until 17 March 2011, when the trial evidence was completed.

[39] Justice Code summarizes the existing case law on re-scheduling of cases where the trial evidence is not completed, as follows:

67 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), 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), 257 O.A.C. 11 at paras. 29-43 (Ont. C.A.); R. v. Khan, supra at paras. 58-71. (Emphasis added)

[40] In the case at bar, the facts are not as complex as in Mr. Carreira’s case. On the first day of trial, the hearing of evidence was interrupted by a number of un-related criminal matters which required some time to be “spoken to” as is common in a busy courthouse such as Old City Hall in downtown Toronto. In addition, and more importantly, prior to the commencement of trial, on the trial date, the Crown advised the defence for the first time that there was an additional page of police notes that had not been disclosed to the defence and which specifically addressed the applicant’s Charter application for the exclusion of evidence based upon the lack of a legal factual basis for the detention and then arrest of the applicant.

[41] The defence counsel, after a brief discussion with the Crown and with his client sought an adjournment. This application for adjournment took some time to argue before me. A principal concern of the defence, as expressed in counsel’s argument, was the need to reconsider the evidence to be called by the defence, as a passenger, Jenny Barbieri, who no longer resided in Ontario, would be a witness that might be required to counter the new evidence. In the result, I did not grant the initial adjournment request but the matter could not be completed, and so the adjournment did take place in any event.

[42] The new date that was set of 24 November 2011, which was the first date that the Court and the Crown were available to continue the trial. This date was agreed to by the defence.

[43] In my view, all of the time between 26 September and 24 November 2011 must be treated as the responsibility of the prosecution. The defence is entitled to timely disclosure. Had the Crown been provided with all of the officer’s notes during the intake period, and therefore able to disclose them to the defence, there would have been no need to take court time at various stages of the proceeding to again deal with this. In this case, defence counsel was required to review the late disclosure, seek further instructions from the client, and argue the adjournment. Moreover, a significant trial issue, which involved the officer’s grounds for the detention and then arrest of the accused, could not be addressed initially in the pre-trial process, a potential essential witness was not recognized, and the resultant Charter application under section 8 & 9 might not have proceeded as it did. (see R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26, at paragraph 20)

[44] In addition, the availability of the potential defence witness, the passenger, Jenny Barbieri, could have been addressed at the outset of the case, and she could have been interviewed by the defence in initial trial preparation.

[45] In my view, this two month further adjournment must be attributed to the actions of the Crown and not the responsibility of the defence.

[46] The initial intake period took two and a half months, and I have attributed one of those months to the Crown as the direct fault of the police neglect in not preparing or swearing the information, not preparing the Crown brief and not providing timely disclosure.

[47] The delay from the setting of the date to the first trial date was a further nine and one-half months, eight and one-half of which I have found to be institutional.

[48] The delay from the first trial date to the second day of trial was just under two months, and all of it was the responsibility of the Crown, and therefore institutional.

[49] In the result, the total delay that I must now consider as to whether or not it is unreasonable is eleven and one-half months.

2.2(a): Prejudice

[50] In R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26, paragraphs 29 to 32, Justice Thomas Cromwell reviewed how trial judges should evaluate the issue of prejudice, and supported the trial judge’s view that actual prejudice had taken place, where the over-all delay of 30 months in a complex sexual assault case had contributed to a number of types of actual prejudice:

29 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.

30 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 the 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, at pp. 801-3.

31 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.

32 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).

[51] In my view, although the facts herein are quite different, and the delay of eleven and one-half months is not comparable to the facts in Godin, there is both implied and actual prejudice as explained by Justice Cromwell. The defendant’s liberty interest is affected, by the immediate licence suspension and the matter remaining before the courts longer than it needed to. The defendant’s fair trial interest is affected by the lack of timely disclosure. The defendant’s ability to carry out her specific role in her family as caregiver to both her mother and grandmother has been under question and threat for the entire period, if she were to eventually lose her driving privileges.

[52] In this case the defendant retained counsel prior to her first court appearance and was frustrated in her efforts to obtain an early trial date and complete the matter by the lapses in the police conduct both initially, in the swearing of the information and preparing the Crown brief, and throughout the intake and pre-trial period in providing timely disclosure to the Crown and through the Crown, to the defence.

[53] The defendant, a person of very modest means, has been required to pay legal counsel’s fees for representing her throughout the over fifteen months that this matter has been in litigation.

[54] In my view, there has been no waiver by the defence of the eleven and one-half months of delay in this case. It is well beyond the eight to ten month Morin guidelines.

[55] It is also necessary to state that the guidelines set out in Morin are just that, guidelines. They are not a limitation period. The delay and the reasons for the delay must be weighed against the societal interests involved. In this instance, that weighing very much favours the remedy of a stay, even though the delay itself is not extraordinary.

2.2(b): The Societal Interests

[56] As well as the societal concern that our legal system be fair, accessible and respectful of the rights of the citizen, there is a countervailing societal interest in law enforcement and more specifically in seeing persons accused of criminal activity brought to trial and their cases decided on the merits. This societal interest is addressed by Justice Sopinka, in Morin, supra, at paragraph 30, where he discusses the purpose of Section 11(b) of the Charter:

30 There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov 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" (pp. 1219-20). 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.

[57] This interest must be carefully weighed against the harm done, both to the individual’s Charter-protected interests, and to the other societal interests which are engaged, when cases do not proceed with dispatch.

2.2(c) The Granting of a Stay – Post Grant & Harrison

[58] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, at paragraph 71, Chief Justice McLachlin and Justice Louise Charron enumerate the principles that must be applied when considering exclusion under s. 24(2) of the Charter:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

[59] In my view, these same principles must now be applied in considering the appropriateness of a stay under 24(1), where the claim for relief comes from a breach of the defendant’s 11(b) right to have a trial within a reasonable time, subject to the other considerations that arise in the earlier case law under this subsection of the Charter.

[60] It is also clear from the application of these principles by the Supreme Court of Canada in Grant and Harrison that in the weighing of these factors, the trial court must be forward-looking and attempt to evaluate the impact on future trials, if the Charter-protected interests are not upheld in the final result of the matter before the court.

[61] The defendant was arrested and charged on 12 August 2010. It took fifteen and one-half months for the prosecution in this matter to be completed.

[62] There was an initial failure by the police to swear the Information and prepare a Crown Brief for the date set for the first appearance of the defendant in Courtroom 101, Old City Hall, on 24 September, 2010, some six weeks after the initial detention and arrest.

[63] On this first-appearance day, the defendant had already retained and instructed counsel and was ready to start the “intake” procedures to prepare for the setting of a trial date.

[64] There was no initial disclosure in the case until 2 November 2010.

[65] Between 2 November and 9 December, more than another month passed to “complete” what appeared to be sufficient disclosure for the parties to conduct a pre-trial, make time estimates for the trial and allow for the defence to get instructions on resolution. The Crown had still not provided one known item, the “in-car arrest video” but it was understood that that material would be provided in a timely fashion prior to the trial date. The presenting defence issue was to be an application for the exclusion of evidence, based upon breaches of the defendant’s Charter–protected rights under sections 8 & 9 of the Charter.

[66] Unfortunately for all concerned, the Crown, the defence, and the court process, the police had still not provided the Crown, and through the Crown, the defence, with essential police notes taken at the time of the detention and arrest, which dealt with the police officers’ grounds for the detention and the arrest.

[67] Those notes were only disclosed on the first day of trial, 26 September 2011, some thirteen and one-half months after they were made. This late disclosure, along with other systemic factors necessitated a further adjournment of the trial to 24 November 2011.

[68] Although this failure by the police to make timely disclosure may seem to be simply a series of small oversights, and therefore not serious, from the systemic perspective, they are indeed serious. The Crown and the defence proceeded to attempt to carry out their respective duties without essential information from the police investigation.

[69] The impact on the Charter-protected rights of the accused and on the system is obvious.

[70] The possibility for the resolution of the matter short of trial was lost and court time used unnecessarily. A defence decision to raise a Charter challenge to the admission of evidence and to run a trial was based, at least partially, on the lack of timely disclosure both during the intake period and then in the interim period prior to the first trial date.

[71] The societal interest in having this case tried on its merits must give way, in certain circumstances, to the protection of the integrity of the trial process itself and the rights of the defendant therein.

[72] In this case there was both implied and actual prejudice, for the defendant because of the lack of timely disclosure. In addition, society is not well served when simple and uncomplicated cases do not proceed in a timely fashion.

[73] On the particular facts of this case, society’s interest in a trial on the merits must yield to the societal and individual defendant’s right to timely disclosure and a trial within a reasonable time.

[74] In the result, the charges against the defendant are stayed.

Released: 20 January 2012

Signed: “Justice Paul H. Reinhardt”