Court File and Parties

Court File No.: Halton 11-2146 Date: 2012-10-16 Ontario Court of Justice

Between: Her Majesty the Queen — and — Antonio Papandrea

Before: Justice Stephen D. Brown

Heard on: September 6, 2012

Ruling on 11(b) Application released on: October 16, 2012

Counsel:

• Erinn O'Marra for the Crown
• Jonathan Rosenthal for the accused Antonio Papandrea

Brown, J.

A. INTRODUCTION

[1] The defendant is charged with Impaired Operation of a motor vehicle and operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 mgs of alcohol in 100 mls of blood contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code respectively.

[2] The defendant through his counsel makes an application pursuant to s. 11(b) of the Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time" has been infringed.

[3] The relief sought pursuant to s. 24(1) of the Charter is a judicial stay of proceedings.

[4] He was charged with these offences on June 29th, 2011 and after four court appearances he set a trial date on September 12, 2011 for May 24, 2012. On that date the court that the trial date was scheduled in could not possibly accommodate the trial so the matter was adjourned to my court but did not commence until shortly before 1:00 p.m. and could not be finished that day.

[5] A continuation date is set for October 19, 2012. The defendant will have waited approximately 15 months and 20 days since he was charged to have his matters adjudicated in this court. Although the Crown opposes the application they do acknowledge that the period of delay warrants examination.

B. THE SECTION 11(b) ANALYTICAL FRAMEWORK

[6] Courts have, since R. v. Morin, [1992] 1 S.C.R. 771, been instructed to apply the section 11(b) principles flexibly, taking into account several required factors. The factors that have to be considered are set out as follows:

1. The length of 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.

[7] In R. v. Godin, 2009 SCC 26, 2009 S.C.J. No 26, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:

18 The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

[8] The Court went on to restate, "... that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice". The Court further stated at paragraph 37 and 38 that:

37 It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

38 Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. 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.

[9] An 11(b) analysis requires a balancing of two distinct rights: the individual rights of the accused and general societal rights. As Mr. Justice Laskin explained in R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.), at paras. 8 and 9:

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] 1 S.C.R. 771, 71 C.C.C. (3d) 1 (S.C.C.) at p. 12.

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] 3 S.C.R. 45, 128 C.C.C. (3d) 483 (S.C.C.) at p. 496.

C. APPLYING THE ANALYTICAL FRAMEWORK

1. The length of the delay

[10] The total time from charge to conclusion of trial in this matter will be 15 months and 20 days, a time that warrants scrutiny into the reasonableness of the delay.

2. Waiver of some or all of the time periods

[11] There is nothing in this case that indicates that the defendant was not ready and willing to proceed to trial expeditiously. He retained counsel before the first court appearance and then moved expeditiously to obtain and review disclosure, set a Crown pretrial date wherein an estimate of ¾ of a day of trial time was arrived at by both parties, and then took the first available trial date that was offered on September 12, 2011, which was May 24, 2012. The first date available to the Crown but not the defence because of a conflict was May 16, thereafter the defence was available on May 17 but the Crown was not. Both parties were available on May 24, 2012 so that date was set.

3. Reasons for the Delay

(a) Inherent time requirements of the case

[12] This is a straightforward case with no complex legal or Charter arguments filed, conducted by a skilful and effective defence counsel who, in my experience, identifies and argues the important issues in a case and does not waste arguments on marginal legal minutiae likely to fail. The investigation was complete on the night of the accused's arrest. The trial time needed was estimated to be ¾ of a day by both parties, a realistic time estimate in my view, and did not underestimate the time required as is often the case.

[13] There is no reason why this trial cannot and should not have been accommodated within the guidelines as suggested in R. v. Morin supra, that is an institutional delay period of between 8 to 10 months.

[14] On that first trial date however the court that the defendant's case was assigned to was fully booked and was unable to accommodate the trial because of other matters that the Crown gave priority to.

[15] As is the normal procedure if another court list collapses the trial coordinator is advised and if possible a case from a clogged court is transferred into an available court. This was done in this particular case as my court list on that day had cases that had collapsed thus freeing me up to take in other matters.

[16] By the time that my court was in a position to assist, the trial could not commence until 12:40 p.m., which effectively assured all parties that it would not complete that day.

[17] The intake period of this case was done within a reasonable period of time by both parties and, of course, is neutral time in the analysis. This period was from the date of the charge (June 29-11) to the time the parties were able to set the first trial date, which was September 12, 2011 a neutral time period of 2 months and 13 days. Deducting that amount of time from the overall time frame of 15 months and 20 days, we then reduce the total time under scrutiny as institutional delay to a period of 13 months and 7 days.

(b) Actions of the Accused

Availability of Counsel

[18] In the case of R. v. Tran 2012 ONCA 18, [2012] O.J. No. 83, the Court of Appeal stated that; "parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel requires time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing ... and these times are part of the inherent time requirements of the case".

[19] In determining these issues there should be some evidence either at the time the trial date was set, or at the 11(b) hearing, upon which this matter can be ascertained. If not it would appear that the court is free to (as in Tran) substitute its own estimates. In assessing the defence preparation time, obviously the counsel's expertise in dealing with this type of case is a consideration.

[20] The defence has filed an affidavit of a law clerk employed by Mr. Rosenthal which sets out that he could have been available as early as September 14th 2011 to try this case and a also says that he had a further seven dates in September 2011 when he was available for trial. Mr. Rosenthal suggested during oral argument that he could have "walked across the hall and done this trial on the date of the set date" which I took to be hyperbole used to emphasize the point that he is a very experienced and competent counsel and that his practice focuses on drinking and driving charges.

[21] I have no doubt that he could have prepared and filed the necessary paperwork required in this straightforward and simple case in a two-week period. Indeed, had Mr. Rosenthal known of the judgment to be released in November of 2011 in R. v. Lahiry et al, 2011 ONSC 6780, [2011] O.J. No. 5071 (Ont. Sup.Ct), he indicated that he may have filed notice with the Crown of the Charter motions prior to the set date. As it was, Mr. Rosenthal served and filed a standard ss. 8 and 9 Charter application on April 23, 2012.

[22] Ms. O'Marra for the Crown submits that the there should be a two month period ascribed as neutral time however I disagree. I accept that if Mr. Rosenthal had been offered one of the dates that he was available on in September or October of 2011 that he could have conducted the trial on that date. There is no evidence before me from the Crown that counsel at the Crown pretrial did not discuss the matter of a short ss. 8 and 9 prophylactic type of Charter motion.

[23] Taking all of these factors into account, I believe that ascribing a period of two weeks is appropriate in order for counsel to be prepared to conduct the trial and as such should be deducted from the period of institutional delay as per the factors set out in R. v. Tran. This reduces the overall time period for institutional delay to 12 months and three weeks.

[24] The Crown urges me to apportion some of the delay between the first trial date to the defence because Mr. Rosenthal was offered one trial date on September 7th 2012 which he was unavailable for. Both the Crown and the defence were available for October 16th 2012 however October 19th was chosen as the continuation date because it was most convenient to the breath technician who will be the next witness. I am urged to hold that the delay between September 7th and October 19th be attributed to the defence or classified as neutral time in the analysis. I decline to do so.

[25] To offer one date for continuation from May to September 7th does in my view not stop the clock running against the institutional delay on September 7th. I refer to Justice Cromwell's comments in R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3, (S.C.C.) at paragraph 23 where he states:

Scheduling requires reasonable availability and reasonable co-operation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

[26] It is also to be noted from the transcript, that on May 24th when a new date was being canvassed, the Crown at the time, Ms. Pecorella undertook to canvass with the trial coordinator whether any other dates became available before the final trial date on October 19th because she realized that "this is a matter that may be in 11(b) jeopardy" but to my knowledge this was not done.

[27] Mr. Rosenthal indicated on the record on May 24th that he had availability for trials on numerous dates in the months of June, July, August and September, including two dates available in the week following the May 24th date. To be offered just September 7th, and then October 16th and October 19th is in my view an unrealistic number of dates to offer in a case that is in 11(b) jeopardy.

[28] As well for the Crown to attribute as it does in its factum that the October 16th date was offered and available to the defence and Crown but not taken so as to accommodate the police officer so that he would not have to testify at the end of a night shift is unnecessary. The fact that the defendant through his counsel agreed to this 3-day extension of what was already an overall delay of almost 15 months and three weeks can in no way show that the accused was not interested in the earliest trial date available.

[29] This was done in regards to the third and last police witness so that they would not have to testify in court after having completed a night shift and done because the Crown at the time requested it. To turn around and say that this 3-day period should be classified as neutral strikes me as reaching, and not "seeing the forest for the trees" see Godin supra, at para 18.

[30] Even if I classified that period as neutral it is so short that it plays virtually no part in the overall analysis.

(c) Actions of the Crown

[31] The Crown chose on May 24th to proceed with an in-custody domestic violence trial that was up for the second time for trial. They cannot be faulted for giving priority to an in-custody accused over that of the defendant in this case but as Justice Hill stated in R. v. Pusic, [1996] O.J. No. 3329 (Gen. Div.) at page 11:

Where the prosecution seeks to give a priority to other cases in the system, the consequences of its conduct may be assessed accordingly.

(d) Limits on Institutional Resources

[32] Because of the chronic persistent and growing demands on the limited resources in Halton Region, we are slipping further into a crisis situation where the lack of allocation of government resources by way of an increase in judicial resources and a proper physical plant and infrastructure to deal with the explosive growth in this region is leading to a breaking point.

[33] There has been no further addition to the judicial compliment in Halton since 2004 when one additional judge was added.

[34] We have to deal with two separate court houses and if a court list in Milton collapses, it is difficult or impossible to transfer a case from Burlington to Milton or conversely from Milton to Burlington. A distance of 30 kilometers separates these two court facilities and adequate public transportation does not exist for parties without access to private motor vehicles.

[35] Based on the results of the Canadian census of 2006 and 2011, the Ontario Ministry of Finance states: "Halton is projected to be the fastest-growing census division in Ontario over the projection period, with growth of 86.9 per cent to 2036." (source: Ministry of Finance Information Centre, Ontario Population Projections Update 2010 – 2036).

[36] While the infrastructures and resources for all other vital community services have been enhanced to address the population surge in Halton, our judicial system has not. For example, the Halton Regional Police Service has been funded to hire 15 to 20 new officers every year for a number of years now. New schools, a new hospital, and other vital community services are continuing to be built to address the population increase.

[37] However when it comes to the judicial system in Halton, patchwork, cosmetic, and superficial changes are deemed sufficient.

[38] We have seven judges who are responsible for all criminal and family court matters in the two inadequate courthouses located in Burlington and Milton in the Halton Region. Two of these judges are tasked with the enormous family law needs of this jurisdiction which are as well exploding due to population increases and, without the benefit of a Unified Family Court in this region, they can only devote a smaller percentage of their judicial resources to criminal law matters.

[39] As a result of this, the resource requirements for fair and effective dealing with the needs of the justice system in Halton have been and continue to be ignored. Such is the prerogative of the legislative branch of the government and its implementational arms of the bureaucracy that are necessary to achieve these goals, and it is beyond the scope of my duties or qualifications to change that. I can, however, observe its effects on the day-to-day operations of the Ontario Court of Justice in Halton Region and apply it in my analysis of cases involving delay in criminal proceedings.

[40] The Charter of Rights and Freedoms is the supreme law of our country. The right to trial within a reasonable time is a right is enshrined in our Constitution and as such is an integral, fundamental, and basic right that every person facing charges in the Criminal Justice system is entitled to. As the Askov crisis of just over two decades ago showed, governments that ignore adequate funding for the justice system do so at the peril of having society robbed of having trials heard on their merits.

[41] In R. v. Morin supra, Justice Sopinka asked the following question some twenty years ago in para 48:

How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11(b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources.

[42] In Halton Region the resources available to the justice system are inadequate and are becoming intolerable. We as judges are running out of options. All of my colleagues in the Halton bench are extremely competent and hardworking. All of them devote much of their evenings, weekends and vacations to just try to tread water in this jurisdiction and to keep on top of the burgeoning workload. Our local administrative judge has spent the past week designated to be a holiday week for her in her chambers writing judgments. Yet despite this commitment and dedication the situation is getting worse, not better.

[43] Trial dates are now being set in this jurisdiction at the outer limit of tolerable delay. Trials are being added on to impossibly overbooked lists in the hope that some trials on those lists will collapse and the trial list will thereby become manageable. Some days this works and other days it does not. We are seeing more days now that it doesn't work than when it does.

[44] As such, I expect that we can anticipate an increase in 11(b) applications being advanced in this jurisdiction. As more and more defence counsel become aware of this problem they may commence setting cases on client instructions with a slim chance of success at trial, because they will likely advise their clients that even though they may be bereft of defences, their hope of getting reached on the first trial date becomes less likely, thereby opening up the possibility of a stay of proceedings.

[45] Though the client will ultimately make the decision whether to go to trial or not and pay the retainer fee for doing so, this is a consideration that I found many of my clients balancing during the lead up to, and in the fallout from the Askov crisis over two decades ago when I was defence counsel.

[46] The success of using the protection of s 11(b) as a sword instead of a shield is a distinct possibility in this climate of crisis and may have a negative influence on our already overcrowded case lists.

[47] This strategy is next to impossible to detect by judges but it can be stated simply in the following way; if the client's case will result in catastrophic consequences for their life, for instance the loss of their job or liberty, is it worth the risk, weighed against the "discount" for an early guilty plea to spend the money on setting a case for trial when no legal defences exist.

[48] A defence counsel may inform their client that 20 percent of cases in an overburdened jurisdiction are generally not reached on an average trial day. The client then weighs the 'benefit' of not getting tried within a reasonable time and having a successful stay application against the 'risk' of having to throw away the cost of their legal fees and whatever benefit may be obtained by an early guilty plea against the value to them of avoiding the consequences of a conviction.

[49] This is a subtle yet important consideration of the allocation of resources to allow trials within a reasonable time. In jurisdictions where there are six to nine month waits for trial this is not a consideration but in jurisdictions that are struggling, as Halton is, then this is a valid concern that further resources are needed to head off this mindset. Once the individuals facing trial in the jurisdiction realize that they have a chance of obtaining stays based on delay that can have an exponential effect on an overburdened region, resulting in a 'perfect storm', the need to withdraw or dismiss cases against a significant number of individuals who should be facing the consequences of their conduct.

(e) Other reasons for delay

[50] There are no other reasons for delay other than those mentioned above.

4. Prejudice to the applicant

[51] In R. v. Godin, supra, Justice Cromwell writing for the court states at para 30 that;

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.

[52] Mr. Papandrea filed an affidavit in this application and the Crown chose not to cross-examine him on it.

[53] He is 38 years of age with two daughters aged 11 and 9. He states that his family is almost entirely dependant on his income although his wife returned to work approximately five months ago.

[54] He has no criminal record, and is presently employed as an airfield specialist. His job necessitates his use of a motor vehicle.

[55] He says that he retained counsel as soon as he was charged and maintains that he wanted the criminal matter resolved as quickly as possible.

[56] He states that he has been extremely stressed and anxious with having the charges outstanding for such a long period of time and says that he has never in the past suffered like this and that his condition has worsened as time passes.

[57] He states that he has had great difficulty sleeping and often wakes up in the middle of the night and stays awake for hours. He says that this has continued to get worse and worse with the period of delay. This causes him to be anxious and stressed at work.

[58] Because his employment requires a security clearance that he will lose if convicted, this has heightened his anxiety, which has increased as time marches on.

[59] He relates losing patience at times with his daughters for simple things and attributes this to the constellation of worry and stress that the overall time period that this case has taken to resolve.

[60] He also recounts that the delay and the results that this has had on him has caused tension in his marriage and that he finds himself and his wife constantly arguing now.

[61] He states that he feels as if his life is in limbo and wishes that the matters had resolved much earlier. He relates "when the trial did not complete on May 24, 2012 I could not believe that I would have to stress and worry about this matter until October 19, 2012."

[62] He further states that he has had to incur further legal fees as a result of the trial not being completed on the date that it was scheduled for.

[63] Finally he states that his memory of what occurred back on June 29, 2011 is not as good as it was shortly after the incident happened. The Crown suggests that this is a type of prosecution that is somewhat shielded from the dangers of decay of memory as in a credibility assessment type of trial in that it is a case which from its perspective involves only police witnesses that have reduced their observations to notes.

[64] That said my review of the evidence of the first day of trial, particularly the cross-examination of Officer Scime in dealing with signs of impairment such as unsteadiness on his feet that elicited responses from the officer such as "I may have seen it. I didn't write it in my notebook." The officer fails to remember significant factors on several occasions but when pressed on this he falls back on a response such as the one noted above.

[65] This shows to me that even officers trained to observe and note signs of impairment are sometimes remiss in doing so and therefore suffer from the erosion of memory over time.

[66] In addressing the other issues of prejudice set out in the affidavit, it is true that much of this worry and stress flows from the fact of being charged with a criminal offence. This is the inherent prejudice faced by all individuals awaiting a trial. This is prejudice that is inferred and requires no foundation in evidence. The longer the wait to trial, the more important role inferred prejudice plays.

[67] However, the delay from the time of the first trial to the second trial date would have been unexpected and in my view particularly exquisite. That combined with the necessity of incurring further legal fees that no doubt would far exceed the amount of the minimum fine for a conviction for this offence is an example of actual prejudice accruing to this accused that I accept as established on the evidence.

[68] In R. v. Kovacs-Tatar (supra), the Court at para. 33 referred to R. v. Silveira, [1998] O.J. No. 1622, 35 M.V.R. (3d) 30 (Gen. Div.), where Hill J. clarified at para. 53, that:

"[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial". He accepted, however, that the delay to trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines."

[69] Prejudice can be inferred from the length of the delay. As Sopinka J. stated in R. v. Morin (supra) at para. 61:

"The longer the delay the more likely that such an inference will be drawn."

[70] As Zisman, J. stated in R. v. Lee [2010] O.J. No. 1831 (Ont. C.J.) the unexpected delay of not having a trial reached has a particular significance in the analysis. Her observations in my view apply to a trial that is reached but not concluded solely because it was not commenced until later in the day due to congested court lists. At para 40 she states:

40 However, there is a difference between an overall delay of about 14 months waiting for a trial and the stress and anxiety of coming to court for a trial and then being told that the trial could not proceed and that a new trial date would have to be set. The inevitable anxiety, stress and further costs are actual prejudice suffered by the applicant. The fact that the increased prejudice caused by a case not being reached for trial has the effect of shortening the constitutionally acceptable time to trial has been recognized in several cases. See for example, R. v. Egorov, supra, R. v. Peressotti, supra, R. v. Jaramillo [2002] O.J. No. 4435. As stated by the court in R. v. Morin, prejudice will often be the deciding factor in a determination of whether or not a delay was unreasonable.

[71] I have no doubt the stress and anxiety expressed by the applicant particularly about his employment, arises from the reality of being charged with a criminal offence. However, I am mindful of the comments of Nordheimer J., in R. v. Osei, [2007] O.J. No. 768 at para. 32 where he states:

"In the end result, it is clear to me that Mr. Osei has suffered prejudice arising from the prosecution of these charges and that that prejudice has been exacerbated from the failure of this matter to proceed expeditiously to trial."

[72] Nordheimer J., also states at para. 39 of the judgment in reference to the guidelines in R. v. Morin (supra) as follows:

"The guidelines were established to give some fairly clear direction to government as to what constitutes the outer limits of tolerable delay in the justice system. Governments have now had many years to adjust their priorities in order to ensure that the justice system receives sufficient resources to match their results against these guidelines. Indeed, I would note that the Supreme Court of Canada observed that, as time passed, it expected that cases would have to conform to the lower end of the guidelines. See R. v. Sharma (1992), 71 C.C.C. (3d) 184 at page 194."

[73] In my view, the time to complete this matter has resulted in actual prejudice, both financial and emotional to Mr. Papandrea as well as inferred prejudice.

(f) Balancing the Societal Interest in a Trial on the Merits

[74] In balancing the societal interest in a trial on the merits I am mindful of the judgment of Justice Code in R. v. Lahiry et al, 2011 ONSC 6780, [2011] O.J. No. 5071 (Ont. Sup.Ct.) where he states at paras 89 the importance of this step in the 11(b) analysis. He states:

89 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.

[75] That said, this case involves no accident and a person without a previous record. While recognizing that drinking and driving is a serious offence and that society has an interest in seeing these types of charges decided on their merits, I also note that society as well as the individual in this case has an interest in having a properly funded and properly run justice system that will allow for the resolution of criminal cases in a timely way within a reasonable time. No doubt the Supreme Court of Canada recognized this principle in the seminal decision in Morin, released some 20 years ago. In Quereshi, supra, the Ontario Court of Appeal stated that "promptly held trials increase public confidence".

[76] As the reducing of drinking and driving offences has shown to be a difficult task, so has the allocation of resources to enable prompt trials of individuals charged with these offences proven to be problematic.

D. CONCLUSION

[77] I have found the institutional delay in this case to be 12 months and 3 weeks. This time to trial is unacceptable for a simple drinking and driving trial.

[78] I have found that the defendant has suffered actual financial and emotional prejudice that cannot be described as trivial or trifling.

[79] I am mindful of societies right to have cases such as these decided on their merits.

[80] Balancing all of the above, I find that the applicant has shown on a balance of probabilities that his right to trial within a reasonable time has been infringed. Both charges in the information will be stayed.

[81] This judgment will be filed with the information on October 19th 2012 and it will not be necessary for the defendant or his counsel to appear in court on that date as I will release a copy of these reasons to the Crown and defence prior to that day.

Released: October 16, 2012

Signed: "Justice Stephen D. Brown"