Court File and Parties

Court File No.: 4813-998-11-333074 00

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Rachel Adonis

Before: The Honourable Justice A. Hall

Heard on: May 24th, 2012

Reasons for Judgment released on: June 18, 2012

Counsel:

• Mr. Dihim Emami for the Crown
• Mr. Marco G. Forte for the accused Rachel Adonis

HALL, J.:

Introduction

[1] This is an Application, by the Defendant, Rachel Adonis, to stay the proceeding pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms for an alleged breach of her right to have a trial within a reasonable time pursuant to Section 11(b) of the Charter. It was heard on the 24th of May and on the 1st of June 2012.

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

[3] The Applicant was charged on the 26th of October 2010 with an offence of over 80 contrary to Section 253(1)(b) of the Criminal Code, after being stopped by a R.I.D.E. spot-check in the area of Markham Road and Nashdene Road in the City of Toronto.

[4] The total period under consideration is approximately 17 months and 2 days.

[5] Ms. Adonis was charged with a narcotic offence as well at the same time. She was directed to appear at Old City Hall Criminal Court in Toronto on the 7th of December 2010. The narcotic was disposed of there at Old City Hall.

[6] The over 80 offence was transferred to Scarborough Court on January 26, 2011.

Legal Framework

[7] 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:

• The length of the delay
• The waiver, if any, of time periods
• The reasons for the delay, including:
  • The inherent time requirements of the case
  • The actions of the Crown
  • The actions of the accused
  • The limits on institutional resources
  • The reasons for the delay
• Prejudice to the accused

[8] In a recent decision by Justice Michael Code of the Superior Court of Ontario, R. v. Lahiry (2011) 2011 ONSC 6780, O.J. No. 5071 and cited with approval by the Ontario Court of Appeal in R. v. Tran (2012) ONCA 18, clarifies the legal framework as to how systemic or institutional delay should be calculated. Justice Code noted in paragraph 2 of R. v. Lahiry:

[9] 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 case 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.

[10] The Supreme Court of Canada has provided a guideline as to the acceptable range of institutional delay; that being between 8-10 months. See R. v. Morin supra. As well, the Ontario Court of Appeal has held that systemic delay of 12 months did not greatly exceed the jurisprudential guideline and was within the range of acceptable delay given the circumstances of the case. R. v. Morin, supra.

Court Appearances

[11] In this case there are four distinctive time periods:

Period	Details
October 26, 2010 - December 7, 2010 (went over to December 14, 2010)	Ms. Adonis was arrested and had her first Appearance in Old City Hall.
December 14, 2010 - January 11, 2011	Retained lawyer; charge was not yet delegated to the Provincial Crown; awaiting Disclosure.
January 26, 2011 - February 17, 2011	Court Appearance in Scarborough Court Intake stage and waiting Disclosure.
February 17, 2011 - March 3, 2011	Awaiting Disclosure; particularly Breath Room and booking DVD.
March 3, 2011 - March 9, 2011	Received full Disclosure.
March 9, 2011 - October 18, 2011	Judicial Pre-Trial, a trial date is set and final Disclosure is given.
October 18, 2011 - March 28, 2012	Defense sought an adjournment October 18, 2011 because DVD was defective and did not cover the booking or the first part of the breath test. Next trial date set for March 28, 2012.

Length of Delay

[12] Between the period of 26th of October 2010 to March 28, 2012, over 17 months; outside the range for institutional delay does attract judicial scrutiny.

Waiver

[13] There is no explicit waiver on the part of the Defense.

Reasons for Delay

Inherent time required for the case:

• October 26, 2010 - December 7, 2010 (went over to December 14, 2010): Neutral Intake period. These times are inherent to any case of this type.
• December 14, 2010 - January 11, 2011: Neutral Intake period.

Action of the Crown:

• January 26, 2011 - February 17, 2011: Failed to provide Disclosure within a reasonable time.

Action of the Crown:

• February 17, 2011 - March 3, 2011: This is a straightforward 'over 80' that is not complicated nor requires more than 2-3 months for initial intake.

Institutional delay:

• March 3, 2011 - March 9, 2011

Institutional delay:

• March 9, 2011 - October 18, 2011

Actions of the Defense:

• October 18, 2011 - March 28, 2012: The defense contributed to the delay. The evidentiary record indicates that defense counsel was in possession of the DVD evidence since March 3rd, 2011 yet it was not until prior to the eve of the trial date of the 18th of October that the Crown was advised of the defect in the DVD (with relation to the breath room tests and the booking procedure).

This in my view contributed to the delay of the trial. The defense must be held responsible for this period of the delay. The Defense should have advised the Crown of the difficulties with the DVD prior to the trial, not on the eve of the trial.

[14] Like Justice Reinhardt found in paragraph 34 of R. v. Warlo [2012] judgment: Court file No.: Toronto 10 – 12004155:

Despite this lack of a complete evidentiary record of 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 is some counsel as who are factually not available for early trial date because of their busy schedule, is my experience that the vast majority of counsel are available, if court spaces are provided. This is a very straight forward case and thus preparation time would not preclude a much earlier trial date. Therefore, I will deduct one month from the institutional delay and regard it as neutral.

[15] I arrived at the same position.

Operative Delay

[16] I find the operative delay to be 6 months for Institutional delay plus 2 months for Crown delay for a total of 8 months, which fall within the guideline, set by R v. Morin for the Ontario Court of Justice.

Prejudice

[17] Prejudice is an important factor to consider in the 11(b) analysis. If there is no prejudice demonstrated the Application loses its' potency. In this case, the applicants attempt to demonstrate prejudice was significantly challenged by the Crown, primarily because the Affidavit the Applicant relied on was found to contain some inaccuracies. However, despite some of the shortcomings in the Affidavit, I take the view; prejudice can be implied and actual. Because of my decision I need not develop this further however the Defendant did suffer some prejudice because of the time it took to come to trial.

Ruling

[18] I find that there is no breach of Applicants 11(b) Charter rights. The matter then will be heard on its merit and the Application is dismissed.

Released: June 18, 2012

Signed: "Justice A. Hall"