Court File and Parties

Court File No.: BRAMPTON 10-9408

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael O'Donnell

Before: Justice Robert Kelly

Ruling on s. 11(b) Application

Heard: May 23 and 24, 2012

Released: June 14, 2012

Counsel

Mr. F. McCracken — for the Crown

Mr. D. Lent — for the defendant Michael O'Donnell

KELLY J.:

1:0 OVERVIEW

[1] On August 1, 2010, a police officer responding to a 911 call followed Michael O'Donnell's vehicle and pulled him over. The officer soon arrested him for impaired driving and took him to 22 Division where breath samples produced readings over the legal limit. A few hours later, he was released on a Promise to Appear.

[2] On August 9, 2010, an information was sworn charging Mr. O'Donnell with driving while impaired and over 80. The case was set for trial on June 20, 2011 but did not proceed that day. A couple of months later, the trial was rescheduled for May 23 and 24, 2012.

[3] Mr. O'Donnell seeks a stay of proceedings on the basis that a total delay of 21½ months has infringed his right under s. 11(b) of the Charter to be tried within a reasonable time.

[4] The parties take sharply divergent positions. The applicant criticizes the Crown for failing to make timely disclosure and contends that all of the delay following the aborted trial date is attributable to the state. The respondent accuses the defence of manufacturing delay with the aim of eventually drawing the s. 11(b) sword and submits that the delay after the first trial date should fall entirely on the defence's side of the ledger.

2:0 HISTORY OF THE PROCEEDINGS

[5] The submissions of counsel have saved me the need to set out an appearance-by-appearance chronology. I will instead give a brief history of the case in overview form to give background and context to the discussion that follows.

[6] After an unremarkable intake period, a one-day trial was set for June 20, 2011, well within a reasonable time from the laying of the charges.

[7] On June 20, 2011, the case was on the court's "TBA" list and was reached at about noon. The trial did not begin, however, largely because of disclosure issues. The defence had only received a CD containing the 911 call at 10:40 that morning and did not have a copy of surveillance footage from 22 Division that showed Mr. O'Donnell at various points while he was in custody.

[8] About eleven weeks later, on September 9, 2011, the second trial date was set. The parties took the earliest dates offered by the court, namely, May 23 and 24, 2012, which was about 8½ months down the road. It was agreed during a judicial pre-trial conference that the proceedings would begin with a s. 11(b) application.

3:0 GENERAL PRINCIPLES

[9] Mr. O'Donnell bears the burden to establish that his right to be tried within a reasonable time has been infringed: R. v. Morin (1992), 71 C.C.C. (3d) 1 at page 14 (S.C.C.).

[10] Section 11(b) of the Charter exists to protect the individual's right to liberty, security of the person, and a fair trial. Its secondary purpose is to protect the societal interest in effective law enforcement and the just disposition of criminal charges. In determining whether the right has been infringed, the court must balance these individual and societal goals with the length, causes, and consequences of the delay in the progress of a case: Morin at pages 12-13, 23 (S.C.C.), R. v. Qureshi (2004), 190 C.C.C. (3d) 453 at paras. 8-9 (Ont. C.A.).

[11] The s. 11(b) analysis does not involve the application of a mathematical or administrative formula. Instead, it requires a judicial determination with a flexible balancing of interests and a consideration of all relevant factors. In the end, the court must assess the reasonableness of the total passage of time – from the laying of the charges to the end of the trial – in light of the reasons that explain its constituent parts and any prejudice arising from the delay: Morin at page 14, R. v. Allen (1996), 110 C.C.C. (3d) 331 at pages 345-346 (Ont. C.A.).

[12] The administrative provincial court guideline for institutional delay established in Morin was 8 to 10 months. In Peel, the guideline for a "straightforward" case is 8 to 9 months: R. v. Rego, [2005] O.J. No. 4768 at para. 4 (C.A.), R. v. Apolinario, [2007] O.J. No. 4788 at para. 126 (S.C.J.), R. v. Reid, [2005] O.J. No. 5618 at paras. 76 to 80 (S.C.J.). But the guidelines are not limitation periods. Rather, they are factors to be weighed in the overall assessment of the reasonableness of the total delay: R. v. Cranston, 2008 ONCA 751 at para. 36. A deviation from the guideline in either direction can be justified by the presence or absence of prejudice. Where institutional delay is on the edge of what is constitutionally tolerable, the issue of prejudice will be central to the outcome of the s. 11(b) analysis: Apolinario at para. 126.

4:0 ANALYSIS

4:1 Introduction

[13] It is unnecessary to recite the well known Morin framework. The total delay of 21½ months calls for an inquiry and there was no waiver.

[14] My analysis will proceed in three parts. First, I will address the reasons for the delay by discussing what I see as the five main blocks of time and then summarizing my allocation of the various periods. Second, I will address prejudice. Third, I will do the final balancing and state my conclusion.

[15] The s. 11(b) analysis is not merely an exercise in computation. As the Supreme Court of Canada reminded in R. v. Godin, 2009 SCC 26 at para. 18, one should not lose sight of the forest for the trees. That said, some degree of calculation is inevitable. In the discussion that follows, I will not reduce each time frame to a precise number of days. Instead, I will speak in terms of months, sometimes, and solely for convenience and clarity, rounded to the nearest decimal.

4:2 Reasons for the Delay

[16] There are five main blocks of time.

4:2.1 Block One: August 9, 2010 to October 18, 2010 [2.3 months]

[17] It is common ground that this is neutral intake time.

4:2.2 Block Two: October 18, 2010 to June 20, 2011 [8.1 months]

[18] This is the period from the setting of the first trial date to the date itself.

[19] In R. v. Tran, 2012 ONCA 18 at para. 32, the Ontario Court of Appeal adopted the approach in R. v. Lahiry, 2011 ONSC 6780 at paras. 25-37. Simons J.A. wrote:

… [T]he parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them [citations omitted].

[20] Despite Mr. Lent's submissions on this issue, Tran is binding. I must follow it.

[21] Given defence counsel's availability letter of October 15, 2010, I treat the period from October 18 to December 23, 2010 as time inherently required to schedule and prepare for the trial. I appreciate that Mr. Lent offered October 25, 2010, but it is unrealistic to think that both parties could be prepared for a multi-witness trial (which included a Charter application requiring the service and filing of materials in accordance with the time lines in the rules of court) in seven days, even without the additional police witnesses for the over-holding issue. While the defence also offered November 26, 2010, and while Mr. Lent may feel he could have been prepared for trial, five weeks for the Crown to secure the attendance of three civilians and three police officers and to respond to the Charter application pushes the bounds of reasonableness when one considers the volume of cases in Brampton.

[22] A period of about two months for scheduling/preparation of a first trial date is, in my view, reasonable for this case. Mr. Lent offered December 23, 2010 and many dates after that. I would start the institutional delay clock on that day. I allocate 2.2 months (66 days) to inherent time requirements and 5.9 months (179 days) to institutional delay.

4:2.3 Block Three: June 20, 2011 to August 9, 2011 [1.6 months]

[23] This period is difficult. There are many reasons why the trial did not begin and end on June 20, 2011, and why a date for a judicial pre-trial conference was not set until August 9, 2011. Some of these are attributable to the Crown, some to the defence, some to both, and some cannot be ascribed with any confidence on the record before me. In the end, this period defies precise allocation and should, I find, be apportioned.

[24] I will set out the factual background before turning to my discussion.

4:2.3.1 Factual Background

[25] On August 11, 2010, within hours of the first court appearance, the defence faxed a request for the 911 call. On the "Request for Crown Disclosure" form required by the Peel Crown Attorney's Office, under the heading "Disclosure Specifics", the defence checked a box titled "Video, Audio, CD's" and, in the space below, wrote: "We require a copy of the 911 call made to police." On the same day, the defence faxed a letter requesting "McNeil disclosure" and the criminal record of any civilian witness.

[26] On August 19, 2010, during a resolution meeting, the parties agreed on a trial time estimate of one day. They now disagree on whether the defence told the Crown its Charter application would include a s. 9 claim of "over-holding" (which required two additional police witnesses). I cannot resolve this dispute on the record as I have it. But leaving this issue aside, this was a case involving six Crown witnesses (three civilians and three officers), possible defence evidence, and almost certainly some Charter issues.

[27] By June 2011, the defence had received no response to its written requests for disclosure. There had been no court appearances or pre-trial meetings since October 18, 2010, when the trial date was set. The defence had sent no further correspondence or otherwise followed-up with the Crown about outstanding disclosure.

[28] On June 3, 2011, 17 days before the scheduled trial date, the defence filed a Charter application seeking relief for, among other things, non-disclosure of the requested items. On June 7 and 13, 2011, the Crown responded to the requests for criminal record checks and "McNeil information."

[29] As for the 911 call, the record shows that Crown Counsel, Ms. O'Marra, began making her own efforts to obtain the CD on May 13, 2011, which was three weeks before the defence filed its Charter application and five weeks before the scheduled trial date. The Crown was obviously aware of the need to disclose the 911 call before receiving the defence's application.

[30] According to Ms. O'Marra's comments before Ready J. on June 20, 2011, there appears to have been some sort of miscommunication between the police and the Crown Attorney's office about the 911 call. Whatever the root of the problem, Ms. O'Marra did not receive the CD until about 10:40 on the morning of June 20, 2011, the scheduled trial date. At about the same time, Ms. O'Marra disclosed the notes of Sgt. Margison, which had become relevant because of the Charter claim of over-holding that formed part of the application served on June 3, 2011.

[31] On June 20, 2011, this matter was scheduled as a "TBA" trial. The Crown had eight witnesses: three civilians, the three original police witnesses, and two additional officers on the over-holding issue. The defence had witnesses present. There was a Charter application raising a number of issues. The case was "reached" and transferred to Ready J.'s court around noon.

[32] In their submissions before Ready J., the parties focused on two items of disclosure: the 911 call and surveillance footage from 22 Division. The notes of Sgt. Margison were mentioned but were not at the forefront of anyone's mind. That remains the case on this application.

[33] The surveillance footage requires some elaboration. It appears, according to the June 20, 2011 transcript, that at some point, the Peel Regional Police began video-taping certain areas of its divisions; for example, the sally port, lodging area, cell area, and possibly the room where the detainee speaks with counsel. Previously, they did not video-tape these areas so there was nothing for the prosecution to disclose. It is not clear on the record when the practice changed.

[34] According to the transcript of June 20, 2011, Mr. Lent asked Crown counsel on the morning of trial whether there was any additional video disclosure. Ms. O'Marra's inquiries led her to believe there was some surveillance footage relevant to this case, although she was not certain.

[35] Mr. Lent's contention before Ready J. was that the Crown should have produced the surveillance footage even without a request from the defence, and that the failure to disclose the information necessitated at least an adjournment, if not a stay of proceedings. The Crown's position was that the defence had raised the issue for the first time that morning and that the Crown would make best efforts to comply with the request as soon as possible, bearing in mind the need to have the footage edited to address legitimate privacy concerns. In the end, the matter was adjourned to July 5, 2011, on the understanding that it would take about a week to have the footage edited in preparation for disclosure.

[36] As it turned out, the editing process was more complicated than Crown counsel had originally anticipated, in part because there were multiple camera angles of some areas in the division. It became clear that a week was not enough. On June 28, 2011, Ms. O'Marra offered to have defence counsel view the footage at the Crown Attorney's office and then tell the Crown which tracks he would like edited and disclosed. Mr. Lent declined.

[37] During the appearance before Ready J. on July 5, 2011, the Crown offered to give Mr. Lent a laptop for a couple of weeks so he could watch the footage at his own office and then tell the Crown which portions he wanted disclosed. The defence declined. Their position was that they were interested in every single shot of Mr. O'Donnell and they wanted to view the footage in private with their client. The matter went over to August 9, 2011.

4:2.3.2 Discussion

[38] In examining this challenging point in the case's history, I will address what I see as the four main factors that prevented this trial from starting and finishing on June 20, 2011, and that delayed the scheduling of a judicial pre-trial conference until August 9, 2011.

Factor 1 – The time estimate was right on the line, if not inaccurate

[39] Even assuming the Crown was unaware of the over-holding issue at the resolution meeting on August 19, 2010, this was a case involving six Crown witnesses, possible defence evidence, and almost certainly some Charter issues. Bearing in mind, as well, the time required for submissions of counsel, judicial experience in this jurisdiction suggests it is unlikely the trial could have been completed in one day, even if it had started on time. I doubt the accuracy of the original joint time estimate of the parties.

Factor 2 – The case was not reached until noon

[40] On June 20, 2011, this case, which the system had scheduled as a "TBA" trial, was not reached until noon. The Crown had eight witnesses. The defence had witnesses present. There was a Charter application raising a number of issues. To state the obvious – there is no way this trial would have finished in three hours. This had become at the very least a two-day trial, even without the s. 11(b) application.

Factor 3 – Late disclosure of the 911 call

[41] The defence made a timely written request in the proper form for disclosure of the 911 call. They did not follow-up until the Charter application of June 3, 2011. Five weeks earlier, however, Crown counsel had started working on the issue. Due to a breakdown in the communication system between the police and the Crown, the CD did not become available to be disclosed until 10:40 on the morning of trial.

[42] Following its initial disclosure request on the day of the first appearance, there was almost nine months of silence until, 17 days before trial, the defence sought a stay of proceedings on the basis of, inter alia, non-disclosure. I agree with the submission that this conduct falls below the standard of diligence the defence is obliged to meet in pursuing outstanding disclosure: R. v. Dixon, [1998] S.C.J. No. 17 at para. 37. It also fails to respect the obligations of professional cooperation and courtesy imposed on both parties in resolving disclosure issues: see, generally, R. v. Stinchcombe, [1991] S.C.J. No. 83 at para. 23. The Crown and the system were entitled to expect more from the defence by way of follow-up on its disclosure requests.

[43] Having said this, and while earlier follow-up by the defence might have produced the 911 CD sooner, I cannot ignore the fact that five weeks before trial and three weeks before receiving the Charter application, Crown counsel started working on the 911 call issue and was still only able to disclose the CD on the morning of trial. This is not satisfactory.

[44] Even though the 911 call was only a couple of minutes long, Mr. McCracken did not strenuously dispute the fact that the timing of its disclosure justified an adjournment. The failure of this trial to start on June 20, 2011 must, therefore, be partially attributed to the Crown's late disclosure of this item.

[45] As for the defence, I cannot make a finding on this evidentiary record that the lack of diligence in pursuing disclosure was part of a strategy designed to increase the risk of delay in contemplation of a s. 11(b) application. Having said that, the defence's conduct on this issue, seen in the context of the record as a whole, has some bearing on the assessment of prejudice.

Factor 4 – Unavailability of the surveillance footage

[46] I examine this factor by looking at why the surveillance footage from the division was not disclosed in time for the June 20, 2011 trial date and what happened after that date until August 9, 2011 when it was disclosed.

[47] First, I find that the defence's fax on August 11, 2010 did not constitute a request for disclosure of the DVD footage from 22 Division. It is not reasonable to suggest that in August 2010, the ticking of the "Video, Audio, CD's" box, together with the words "We require a copy of the 911 call made to police", should have been taken as anything other than a request for the 911 call; it certainly cannot be seen as sufficient to put the Crown on notice that the defence wanted in-station surveillance footage, especially given the Peel Regional Police's historical practice of not recording activities in its divisions.

[48] Second, I find that the defence did not intend on August 11, 2010 to make a written request for disclosure of the DVD footage. If this information had been on the defence mind at any point before the trial date, they would have mentioned it in their June 3, 2011 Charter application, as they did the 911 CD and other information.

[49] Third, I do not find that the defence sprung the request for in-station footage on the Crown on the morning of June 20, 2011 as a delay tactic. A fair reading of the record leaves the strong impression that the issue of the in-station footage is something that came up on the morning of trial as a result of a question from Mr. Lent to Ms. O'Marra; that neither party had been aware of the existence of the footage until that time and that Ms. O'Marra scrambled throughout the morning to inform herself about the issue. None of this is terribly surprising, in my view, given what appears from the record to be a climate of change and perhaps uncertainty surrounding the practice of the Peel Regional Police in this area. There was, as Ready J. put it on June 20, 2011, something of a "learning process" going on. This is an important contextual feature that must be kept in mind when considering the reasons why the footage was not disclosed before the trial date.

[50] Fourth, I disagree with the submission that the Crown should be faulted for failing to disclose the DVD footage even without a request from the defence. Again, there was, for years, no in-station surveillance to disclose in drinking and driving cases in Peel. This changed at some point that cannot be determined on the record. In my assessment, the record does not support the view that as of August 2010 or even June 2011, in-station surveillance recordings were on the same disclosure footing as, for example, witness statements or even breath room DVDs, which, for a number of years, have formed part of routine disclosure in accordance with established systems and practices. On the record in this case, I would not be critical of the Crown for failing to disclose the DVD footage before the first trial date absent a specific request for this information from the defence.

[51] In sum, the division footage was obviously discloseable, but in all the circumstances, I do not blame the Crown for s. 11(b) purposes for failing to disclose it before June 20, 2011. Nor do I find that the defence's raising the issue on the morning of trial was a tactical move to generate delay. The record on this issue leaves me with the firm sense that this was simply an unforeseen last minute development to which the Crown and the defence had to respond.

[52] I now look at what they did.

[53] The record shows that between June 20 and August 9, 2011, the Crown, in particular, Ms. O'Marra, acted with commendable diligence in seeking to expedite disclosure of the in-station surveillance and minimize delay. The editing of the footage was not simple and the process took longer than she had anticipated. On June 28, 2011 and again on July 5, 2011, Ms. O'Marra proposed ways in which the parties could work together in the hope of expediting the setting of the second trial date. The defence declined to participate.

[54] The Crown's offers of assistance to the defence, while not perfect solutions, were reasonable and reflected the spirit of cooperation, creativity, and flexibility encouraged in the case law. While there is no doubt the defence is entitled to private consultation with their client when reviewing disclosure, it is equally clear that their refusal of the Crown's offers did nothing to expedite the rescheduling of the trial. The defence's stance on this issue could only have delayed the setting of the second date.

4:2.3.3 Apportioning the Time

[55] Given all of these factors and considering the record as a whole, I apportion this relatively brief period of 1.6 months evenly between the parties – 0.8 months to each of the Crown and the defence.

4:2.4 Block Four: August 9, 2011 to September 9, 2011 [1 month]

[56] On August 9, 2011, the prosecution disclosed the DVD footage from the division. The Crown's position was that the original time estimate had to be adjusted and that the trial would now take 1½ days, which meant that a judicial pre-trial conference was required before a date could be set.

[57] The Crown's position was reasonable. This was, again, a multi-witness trial with a number of Charter issues. There was now a s. 11(b) application. The parties disagreed on how long the trial would take. A judicial pre-trial conference was necessary.

[58] Despite comments in earlier cases, the latest word from the Ontario Court of Appeal about characterizing the time referable to scheduling judicial pre-trials is Tran, in which, at paragraph 34, Simons J.A. wrote:

… [I]t seems to me that requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure the overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treatment as part of the inherent time requirements of the case.

[59] Thirty days to schedule a judicial pre-trial conference for an out of custody case in Brampton is not unreasonable. Under Tran, I treat this one-month period as part of the inherent time requirements of the case. If I am wrong, the overall institutional delay should be increased by one month.

4:2.5 Block Five: September 9, 2011 to May 24, 2012 [8.6 months]

[60] On September 9, 2011, there was a judicial pre-trial conference. The parties still disagreed on the time required for trial. The Crown estimated three days while the defence felt two days would be sufficient. The parties agreed, however, that the s. 11(b) application should be addressed first.

[61] In the end, two days were set. According to the scheduling sheet from the Trial Coordinator's office, the first dates offered were May 23 and 24, 2012, the dates ultimately selected. Mr. Lent's availability letter of September 8, 2011 shows that he offered 54 dates before May 13, 2012 and requested the earliest of those dates.

[62] By June 20, 2011, this case was in s. 11(b) trouble. By September 9, 2011, this had become even more obvious. A delay application was a certainty. There is nothing on the record to show that the Crown or the system made any effort to give this case priority. Given the transcript of September 9, 2011 and the scheduling sheet from the Trial Coordinator's office, I can only conclude that this matter was scheduled in the normal course for trial dates 8½ months away with a resulting delay from set-date to trial that is longer than that attributable to the setting of the first trial date.

[63] The defence's request for the earliest of 54 proposed dates before May 23, 2012 is consistent with a desire to bring the matter to trial in an expeditious manner. By September 9, 2011, Mr. O'Donnell was entitled to have system give case priority. It did not. This, for me, is one of the most troubling features of this application, given the strong statements from the Ontario Court of Appeal on this issue over a number of years.

[64] By June 20, 2011, the defence had prepared for trial and both parties had filed their Charter materials. As of September 9, 2011, Mr. Lent was not available until October 12, 2011.

[65] In my view, the Tran/Lahiry approach has some application at this stage. It would be wrong to treat the period from September 9 to October 12, 2011 as the result of systemic congestion when Mr. O'Donnell's counsel of choice was not available to do the trial during that time: Lahiry at para. 34. I allocate this 33-day period to inherent scheduling/preparation requirements. I disagree that decisions like Godin and Brace mandate a different approach. Since this was a second trial date and delay was a real issue, it is not too much to ask that the Crown subpoena its witness and be ready for trial in about a month.

[66] The remaining period of 7.5 months from October 12, 2011 to May 24, 2012, must, one the record before me, be considered institutional delay.

4:2.6 Summary

[67] To summarize my assessment of the reasons for the total delay of 21½ months, I consider:

• 2.3 months to be neutral intake time;
• 2.2 months to be time inherently required to schedule the first trial date;
• 5.9 months as institutional delay referable to the setting the first trial date;
• 0.8 months as Crown conduct that contributed to the failure of the case to start and finish on the first trial date;
• 0.8 months as defence conduct that contributed to the failure of the case to start and finish on the first trial date;
• 1 month as time inherently required to schedule the judicial pre-trial conference;
• 1 month as time inherently required to schedule the second trial date; and
• 7.5 months as institutional delay in setting the second trial date.

[68] Emphasizing once again that the s. 11(b) analysis involves much more than counting up days, fitting them into slots, and then doing the numbers, the totals here look like this:

• 6.5 months neutral time;
• 0.8 months Crown delay;
• 0.8 months defence delay;
• 13.4 months institutional delay;

TOTAL: 21.5 months.

4:3 Prejudice

[69] Mr. O'Donnell was released on a promise to appear. He appeared by agent or counsel at each of the eight pre-trial court appearances. He makes no claim of prejudice to his liberty interest.

[70] In his affidavit, Mr. O'Donnell expressed the opinion that the passage of time will cause memories to fade resulting in an unfair trial. On the record before me, and as Mr. O'Donnell himself went some way towards acknowledging in his testimony, it is speculative to suggest that the recollection of any witness has faded in a way that would operate to the defence's detriment. I find that the delay has not compromised his right to a fair trial or to make full answer and defence.

[71] In his affidavit and testimony, Mr. O'Donnell gave the following evidence:

1. The stress from having the charges hanging over his head has affected many aspects of his life and has increased over time;

2. He has trouble sleeping. While this has been a problem since the charges were laid, it is a constant thing that has contributed to his exhaustion as time has progressed. He wakes up in the middle of the night with a racing mind and has difficulty settling down and getting back to sleep. His wife started sleeping in another room;

3. Mr. O'Donnell has had what he described as anxiety attacks. He recalled three times when he had to leave meetings at work because he started to panic when his thoughts turned to the future and the possible consequences of being convicted. He believed these episodes occurred after the first trial date;

4. While Mr. O'Donnell's job description includes the ability to drive, he is able to fulfill most of his current responsibilities without operating a vehicle. He has not, however, applied for promotions because of a concern he will lose his job if convicted. Only one person at work knows about the charges and people have asked him why he has not pursued these positions. This has been another source of stress – worrying about everyone at work finding out about the charges and his future with the company;

5. The process has created financial stress for Mr. O'Donnell and his wife. Retaining counsel for two different trial dates has significantly increased his legal costs. He and his wife have postponed plans to renovate their home and put it up for sale. They have avoided taking vacations. Mr. O'Donnell has held off replacing his vehicle.

[72] Mr. O'Donnell testified in a straightforward and balanced way. His evidence was compelling and found firm support in the testimony of his wife. His evidence was credible and I accept it.

[73] While many of the effects on Mr. O'Donnell's life stem from the laying of the charges, there is no doubt they have been prolonged by the 21½ months his case has been before the court. I accept the testimony of Mr. O'Donnell and his wife that his anxiety has increased over time and that his emotional state is getting worse. I have also taken into account that the increased legal costs associated with the loss of the first trial date has added to his financial burden.

[74] On the whole of the evidence, I find that Mr. O'Donnell has established some prejudice to his security of the person interest caused by the delay as opposed to the fact of being charged. In my assessment, this prejudice is beyond the nominal prejudice sometimes seen in these applications. In saying this, I am not ignoring the defence's attitude and approach at certain points in the history of the case.

4:4 Balancing

[75] Until the first trial date, there was no delay problem in this case. After a reasonable intake period, a date was set well within guidelines.

[76] The trial did not start on the first day, and if it had started, it would not have finished. There are many reasons why the case ended up in this state, some more clear on the record than others. In the end, the problems are, in my assessment, attributable in part to the Crown, in part to the defence, and in part to the system.

[77] A second trial date had to be set. By this point, the case was in grave s. 11(b) danger. There is nothing on the record to suggest that the Crown or the system gave the matter any priority. There is no explanation for why the institutional delay in rescheduling the trial is longer than that referable to the setting of the first trial date. This is troubling.

[78] A total of 21½ months to bring this case to trial is a long time, even recognizing that it should not be classified as straightforward, simple, or routine. The delay attributable to the state (Crown/system) exceeds 14 months. The cumulative institutional delay is just under 13½ months, well in excess of the administrative guidelines, whether one works with Morin or the Brampton-based authorities.

[79] The evidence establishes prejudice to Mr. O'Donnell's security of the person interest beyond the minimum, although there was no harm to his liberty interest or fair trial rights.

[80] The final balance is difficult. There is a public interest in all drinking and driving allegations being tried on their merits. That interest will suffer if the proceedings are stayed. On the other hand, the total delay is lengthy, the state delay plainly overshoots the guidelines, there is more than minimal prejudice to Mr. O'Donnell's security of the person interest, and neither the prosecution nor the system gave this case any priority when it was in such obvious delay trouble when the second trial date was set.

[81] In the end, I am satisfied on a balance of probabilities that Mr. O'Donnell's right to be tried within a reasonable time has been infringed. Under s. 24(1) of the Charter, I stay the proceedings.

Released: June 14, 2012

Justice Robert Kelly