Court File and Parties

Court File No.: CENTRAL EAST – NEWMARKET 4911-998-11-04032

Date: 2012-07-09

Ontario Court of Justice (Central East Region)

Between:

Her Majesty the Queen (Respondent)

— and —

Karen Wood (Applicant)

Before: Justice Richard Blouin

Heard on: January 25 and July 9, 2012

Oral Ruling given: July 9, 2012

Written 11(b) Charter Ruling released: July 9, 2012

Counsel:

• T. Vanden Ende, for the Respondent Her Majesty the Queen
• S. Price, for the Applicant Karen Wood

BLOUIN J.:

Application

[1] Karen Wood stands charged that, on or about April 23, 2011, she committed the offences of Impaired Operation of a Motor Vehicle and Over 80. She makes application to have her charges stayed, pursuant to s. 11(b) and s. 24(1) of the Charter, because she was not tried within a reasonable time.

Relevant Dates

April 23, 2011 Defendant charged with Impaired Operation of a Motor Vehicle and Over 80

May 17, 2011 Defendant's first appearance. Counsel retained. Disclosure received. Three week adjournment request granted. Counsel had sent a letter requesting full disclosure on May 2, 2011

June 7, 2011 Further disclosure requested. Missing notes of the qualified technician and another officer. Many other disclosure items requested in June 6, 2011 letter from counsel to the Crown were missing.

June 28, 2011 Counsel received further disclosure and requested two weeks to conduct a pre-trial with the Crown.

July 12, 2011 911 DVD and notes of P.C. Rogers still missing. Counsel requests three weeks.

August 2, 2011 911 DVD still missing (although counsel's office had received it July 14, 2011). P.C. Rogers' notes disclosed. Counsel will attend to conduct pre-trial on August 12, 2011.

August 12, 2011 Counsel conducted a Crown pre-trial and a one-day trial was scheduled for November 29, 2011. Only one day prior to November 29 was offered (November 2), but defence was not available that day. Defence not waiving 11(b) rights.

November 3, 2011 Adjournment request brought by Crown since a witness was scheduled to attend professional training out of province on that day. Defence did not consent. Adjournment granted and new trial date of January 25, 2012 selected.

January 25, 2012 Because of other matters scheduled for trial, this case not reached until 11:45. The trial commenced but did not finish. July 13, 2012 was selected for the trial continuation. Counsel was prepared to continue trial on a number of days just after January 25.

Legal Framework

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

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

[4] As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin, supra at p. 13. While society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that the trials for such offences are held in a timely fashion: R. v. Kporwodu, [2005] O.J. No. 1405 at paragraph 194.

[5] 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:

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.

Length of Delay

[6] The time from the arrest date to the second trial date was approximately 14.5 months. That amount of time requires an examination of the Morin factors.

Waiver

[7] The defendant retained counsel within four days of the arrest and expressed a desire to have the matter determined quickly. The defendant expressly did not waive her 11(b) right.

Reasons for the Delay

(a) Inherent Time Requirements of the Case

[8] This is not a complex drinking and driving case. Mr. Price filed an affidavit executed by Min Pei, a lawyer in his chambers, which set out his client's position regarding trial readiness as discussed on R. v. Tran, 2012 ONCA 18.

2. On August 12, 2011, Mr. Price appeared on behalf of the Applicant in order to set a trial date in this matter. The date of November 2, 2011 was offered by the court but Mr. Price was not available. The next date offered, November 29, 2011 was agreeable to all for the purposes of trial. In agreeing to that date, counsel Mr. Price expressed that there was no waiver of the Applicant's 11(b) rights. On this date, Mr. Price had available dates:

   • August 2011: 15, 17, 19, 22, 24, 25, 29, 30
   • September 2011: 12, 14, 16, 19, 20, 23
   • October 2011: 7, 13, 14, 19
   • November 2011: 4, 8, 14, 18, 22, 23, 24

3. On November 3, 2011, when the Crown brought an adjournment application, again Mr. Price had dates commencing in November and a number of dates in each and every month prior to the January 25, 2012 trial date. Mr. Price's available dates are:

   • November 2011: 4, 8, 14, 18, 22, 23, 24, 29
   • December 2011: 5
   • January 2012: 3, 9, 12, 18, 19, 20, 24

4. On January 25, 2012, when the matter had to go over because it didn't start until 11:45am, Mr. Price had numerous dates available commencing in January. Mr. Price made it clear on that date that 11(b) was an issue and that an 11(b) application would be brought. On this date, Mr. Price's available dates are:

   • January 2012: 26, 27, 30
   • February 2012: 6, 7, 9, 23
   • March 2012: 1, 5, 6
   • April 2012: 2, 3, 23, 24, 25, 26
   • May 2012: 2, 11, 14, 15, 16, 18, 22, 28, 30, 31
   • June 2012: 1, 5, 6, 11, 12, 13, 19, 20, 22, 25, 26
   • July 2012: 2, 10, 11, 12

5. In the normal course of his practice, Mr. Price is not in Court every day of the week but instead has a number of dates every month that are available to him to prepare his trials. As Mr. Price has a great deal of experience in doing drinking and driving trials, he is familiar with most issues. As such when this matter was initially up to set a trial date on August 12, 2011, and November 3, 2011, he would have required very little preparation time and would have been in a position to do the trial whenever court time was available. As the trial was already prepared for on January 25, 2012, he would not have required further time to prepare beyond reading the transcript which again would have not interfered with the setting of a trial date.

(b) Actions of the Accused

[9] The defendant retained counsel four days after her arrest (on April 27, 2011). Counsel ordered disclosure at the earliest opportunity and was diligent in pursuing the missing material. Counsel repeatedly asserted that 11(b) was not waived.

(c) Actions of the Crown

[10] Disclosure was provided to defence on May 17. Counsel requested a three-week adjournment. When the matter returned on June 7, important disclosure, including notes of the arresting officer and the breath technician, were noted missing, and the case needed to be adjourned for three weeks. Some of the remaining disclosure was provided outside court that day. Further disclosure was provided to Mr. Price on the return date of June 28. Defence requested two weeks, to July 12, to digest that information. On July 12, the case was adjourned to August 2 to allow Mr. Price to conduct a Crown pre-trial personally. The matter then adjourned to August 12, even though a piece of disclosure (the 911 tape) was still missing.

[11] In my view, this record exemplifies what Rosenberg, J. refers to as "an inattention to disclosure requirements" in R. v. Steele, 2012 ONCA 383. Although the extended intake period due to insufficient disclosure in this case was nowhere near as long as in Steele, a delay was created by the Crown not fulfilling the most simple of disclosure obligations (police officer notes and a 911 tape).

[12] One of the witnesses called by the Crown, P.C. Rogers, had her notes unavailable to defence until August 2, 2011 (some three months and 10 days after they were made in her notebook). Although Mr. Price requested to be present personally to set the trial dates, I conclude that, at the very least, six weeks of the intake period is attributable to the Crown delay because of disclosure inattention.

(d) Limits on Institutional Resources

[13] No relevant facts apply to this heading.

Prejudice

[14] 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 R. v. Godin, 2009 SCC 26, paragraph 30.

[15] 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." See R. v. Godin, supra, paragraph 31.

[16] 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. See R. v. Godin, supra, paragraph 38.

[17] The applicant provided an affidavit supporting her 11(b) application.

[18] The Crown declined to cross-examine the defendant on her affidavit.

[19] The applicant is 47 years of age. She has never been charged with a criminal offence before April 2011. She took medication for depression before this charge, but since November 2011 she has been experiencing sleeplessness and sought psychotherapy. Additional medication was prescribed in January 2012.

[20] Additional financial costs have been incurred because the proceedings have extended.

Conclusion

[21] In my view, 11 months of delay can be apportioned as either institutional, and/or resulting from actions of the Crown. Since Mr. Price's schedule and preparation time issues did not delay the setting of the date for trial, the parties were prepared to go to trial on August 12, 2011 (see R. v. Tran). The trial will be completed on July 13, 2012 at the earliest, through no fault of the defendant. When I add the delay caused by Crown inattention to disclosure responsibilities, the relevant delay exceeds one year. Given the real prejudice suffered by the defendant in a simple drinking driving case, I find her s. 11(b) rights to be violated.

[22] The only appropriate remedy is a stay of proceedings.

Released: July 9, 2012

Signed: "Justice Richard Blouin"