COURT FILE No.: Brampton 10-17467

DATE: January 31, 2012

Citation: R. v. Aldana, 2012 ONCJ 90

ONTARIO COURT OF JUSTICE

Central West Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

harol aldana

Before Justice Richard H.K. Schwarzl

Heard on January 31, 2012

Reasons for 11(b) Charter Ruling given on January 31, 2012

Mr. Jeremy Schaffer ................................................................................................ for the Crown

Ms. Heather Spence for the Accused

SCHWARZL, J.:

11(b) CHARTER RULING

1.0: Introduction

[1.] Mr. Harol Aldana was charged in November 2010 with two drink/drive offences. His first trial date of October 5, 2011 was not reached due to an overloaded trial list. His second trial date of December 6, 2011 was reached but it did not proceed because there was no fully accredited Spanish interpreter. On January 31, 2012 his matter was marked for trial at which time it was the only matter on the list and there was a fully accredited Spanish interpreter to assist him. Mr. Aldana seeks an order of this Court that his trial was not held within a reasonable time and that it should be stayed and not tried on the merits.

2.0: Chronology of Relevant Events

[2.] On November 6, 2010 Mr. Aldana was charged with driving with excess alcohol and with impaired driving. He was released unconditionally. The Information was sworn on November 29, 2010.

[3.] His first appearance in court was one and one-half months later on January 10, 2011. He appeared by counsel and disclosure was provided at that time. The matter was adjourned for three weeks to January 31, 2011 in order to conduct a resolution meeting with the Crown before setting a trial date.

[4.] On January 31, 2011 counsel for Mr. Aldana asked for a one-month adjournment to February 28, 2011 to receive his instructions.

[5.] On February 28, 2011 the parties agreed to set a one day trial. Both parties accepted the first date offered by the court which was October 5, 2011, 7 ¼ months in the future. Mr. Aldana required a Spanish interpreter in order to conduct his trial.

[6.] On October 5, 2011 Mr. Aldana’s full-day trial was one of six trials on the docket for that court. His trial was never reached and no courtroom was ever able to accommodate his case that day. The trial coordinator offered the parties thirteen dates, including eight in October, three in November and two in December. The Defence was not available for seven of those dates and the Prosecution turned down five of them. The first date that both the Crown and Defence were available was December 6, 2011.

[7.] When the matter returned to court on December 6, 2011 there was plenty of room and time to try the case. However, the court did not provide a fully accredited Spanish interpreter to assist Mr. Aldana and therefore the case was not able to proceed. Due to the lack of sufficient interpreter resources, the case was adjourned. The Trial Coordinator offered two dates in December, but the Defence was not available for either of them. Those two dates were within one week of the second trial date. The next date offered by the Trial coordinator was January 31, 2012 which was accepted by both parties.

[8.] On January 31, 2012 the conditions were right to hold a trial because (a) there was no competition from other cases for court time and (b) a fully accredited Spanish interpreter was present.

3.0: Applicable Legal Principles

[9.] All citizens enjoy the right to be tried within a reasonable time as enshrined in section 11(b) of the Canadian Charter of Rights and Freedoms. It is presumed that the state has respected that right and the burden is on the Applicant to establish on a balance of a probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.).

[10.] There is no cut-off or stale date at which the length of the trial process becomes automatically unreasonable. The determination of whether a delay has been unreasonable requires an assessment of the entire time from the time of the charge or when the Information is laid to the end of the trial: R. v. Allen (1997), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), affirmed 1997 331 (SCC), 119 C.C.C. (3d) 1 (S.C.C.); R. v. Morin, supra at ¶ 32 – 36.

[11.] Some delay in bringing a matter to trial is inevitable. In assessing whether the entire time is unreasonable, courts must balance a myriad of factors identified by the Supreme Court in Morin, supra. Those factors are:

(a) The length of the delay;

(b) The waiver of any delay by the Applicant;

(c) The reasons for the delay, including:

(i.) The inherent time requirements of the case;

(ii.) The actions of the Accused/Applicant;

(iii.) The actions of the Crown including the police;

(iv.) Limits on institutional resources; and

(v.) Other reasons for delay; and

(d) Prejudice to the Applicant caused by the delay.

4.0: Analysis of the Morin Factors

4.1: Length of the Delay

[12.] An inquiry under section 11(b) of the Charter should only happen where the total delay of the case is sufficiently lengthy to mandate a review. In this case, the Applicant was charged on November 6, 2010. However, the Information was not sworn until November 29, 2010, which is the date the clock starts running. The case was finally brought to trial on January 31, 2012. The total length of the delay in this case is therefore 14 months. The parties agree that the delay is sufficient to require an assessment of the unreasonableness, if any, of that time period.

4.2: Waiver of Time Periods

[13.] Mr. Aldana has not waived any time in this case.

4.3: The Reasons for the Delay

4.3.1: Inherent Time Requirements

[14.] The concept of “inherent time requirements” encompasses a number of different aspects: (a) the intake period of the case; (b) the court time required to try the case; (c) adjournments required to find additional court time to try the case when the initial time estimates prove inaccurate; and (d) the complexity of the case: R. v. Ferguson, 2005 28538 (ON SC), [2005] O.J. No. 3442 (S.C.J.) at ¶140 – 149. Preparation time is also part of the inherent time requirements: R. v. M.(N.N.) (2006), 2006 14957 (ON CA), 209 CCC (3d) 436 (Ont. C.A.) The inherent time requirements of a case are considered neutral in the 11(b) analysis and are not included in systemic delay: R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.).

(a) Intake

[15.] In this case, the time between the Information being sworn and the setting the of the first trial date, being November 29, 2010 to February 28, 2011, was three months. In most drink/drive cases the usual intake period is two to three months.

(b) Court Time to Try the Case

[16.] In Brampton the court day in Ontario Court commences at 10:00 a.m. and concludes at 4:30 p.m. Out of that six and one-half hour period, there are nearly two hours in breaks to accommodate recesses and lunch. Therefore, a court day in Peel Region allows for a maximum of four and a-half hours for actual litigation.

[17.] Since the advent of the Charter nearly thirty years ago, trial time for many cases involving Charter claims, particularly in drink-drive cases, has ballooned. It is very common that drink-drive cases with Charter issues take more than one court day to complete. This reality was recently recognized by Code, J in the case of R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 where he noted:

158 ... It will be remembered that Darlene Morin was charged with both impaired driving and "over 80". On the trial date, in early 1989, her counsel argued the s. 11(b) Motion unsuccessfully and then conducted the trial on the merits. The Crown called the arresting officer and the breathalyzer technician and filed one exhibit (the breathalyzer certificate of analysis). No defence evidence was called. The trial evidence was described as "brief, covering only thirty-eight pages of trial transcript". The entire case, including the s. 11(b) Motion, must have taken no more than an hour, or two hours at the most. See: R. v. Morin (1990), 1990 10952 (ON CA), 55 C.C.C. (3d) 209 at pp. 217-218 (Ont. C.A.).

159 Modern drinking and driving trials, such as the cases under appeal, bear no resemblance to Morin's Case. In Lahiry, a full day was set aside for a one witness trial and Motion. In Davidson, two full days were set aside for the trial and a further half day was set aside for the Motion. In Carreira, four hours was scheduled for trial but then it expanded and ended up taking between two and three full days. Four hours was scheduled for the Shelson trial.

160 The Supreme Court of Canada was setting standards for short, efficient, high volume summary trials in Morin's Case. The four cases under appeal do not fit this description….

[18.] In this case, the trial estimate of one day (or 4.5 real hours) appears appropriate. However, common sense dictates that it will always take longer to find a date for a trial which takes more, not less, time. Accordingly, dates deeper into the Court’s calendar must be examined in order to accommodate a trial of this length.

(c) Adjournments to find additional time to try the case

[19.] No adjournments were necessary in order to find additional trial time. The problem in this case is that has yet to begin at all.

(d) Complexity of the case

[20.] This is a relatively simple case that presents no unusual complexities.

4.3.2: Actions of the Applicant

[21.] Mr. Aldana appears to have moved this case along with appropriate diligence and his conduct is not a factor in this case.

4.3.3: Actions of the Crown

[22.] Like Mr. Aldana, the Crown has acted with reasonable dispatch in bringing this case to trial. Therefore, behaviour of the Crown is not a factor in this situation.

4.3.4: Limitations on Institutional Resources

[23.] The time between setting the first trial date and the trial date itself was 7¼ months, which was the first date offered by the court. Considering preparation time for both sides, I would assign 6½ months of institutional delay and ¾ of a month as neutral preparation time to this period.

[24.] With respect to the two months between the first and second trial dates, the court offered a large number of dates, but either one or the other of the parties was not available. Of these two months, I would assign one month as institutional delay and one month as neutral time to this period.

[25.] As for the 1¾ month gap between the second and final trial dates, I find that the trial coordinator offered only three dates, two of which were within a week of the second trial date and then nothing from then until January 31, 2012. In my view, 1½ months was institutional delay while one-quarter month was neutral.

[26.] Therefore, I find the total institutional or systemic delay in this case to be nine months. In Peel Region, the guideline for bringing a matter to trial in Ontario Court is eight to nine months of institutional delay: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.) affirmed 2004 30221 (ON CA), [2004] O.J. No. 3812 (C.A.); R. v. Rego, 2005 40718 (ON CA), [2005] O.J. No. 4768 (C.A.); R. v. Reed, [2005] O.J. No. 5618 (S.C.J.)

4.3.5: Other Reasons for Delay

[27.] I am not able to find any other reasons for delay beyond the ones I have already discussed.

4.4: Prejudice

[28.] The Applicant submits both general and specific prejudice due to the delay in commencing this matter within 14 months. The Crown submits that the Applicant has suffered no prejudice that should attract any remedy by this court.

4.4.1: General Prejudice

[29.] Section 11(b) of the Charter is designed to guard against prejudicing a person’s rights to (i) liberty, (ii) security of the person, and (iii) to make full answer and defence: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.). In the case at bar, it is the second and third rights that must be assessed.

[30.] Prejudice to these rights can be inferred the longer the overall delay. Delay, in and of itself, can be expected to have a detrimental effect on a fair trial: R. v. Godin, supra.; R. v. Brace (2010), 2010 ONCA 689, 104 O.R. (3d) 32 (C.A.).

[31.] Conduct of the Applicant which is inconsistent with a desire for a timely trial is something that the court must consider in evaluating the degree of prejudice, if any, suffered by the accused: R. v. Morin, supra, at ¶ 62.

[32.] Prejudice to the Applicant must be balanced with society’s interest in adjudicating matters on their merits: Morin, supra at ¶ 26 – 30; R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No. 5004 (C.A.); R. v. Kporwodu, 2005 11389 (ON CA), [2005] O.J. No. 1405 (C.A.). This balancing of the Applicant’s interests and society’s interest in a trial on the merits is even more important where the charges are serious: R. v. Seegmiller, supra. Drinking and driving offences are serious crimes: R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.).

4.4.2: Specific Prejudice

[33.] In his affidavit, the Applicant states that since being charged he has suffered emotional stress associated with the potential penal and other consequences of conviction. This stress is due mainly to being charged. Accordingly such stress has a modest impact on the 11(b) analysis. The Applicant also says that he has suffered specific prejudice from having to pay legal fees for several trial dates.

4.4.3: Assessment of Prejudice

[34.] In assessing the general and specific prejudice alleged or inferred, very little of it is a self-inflicted wound created by Mr. Aldana. He was always ready to move the case along in a timely way. Nor is any prejudice the responsibility of the Crown who was also ready and willing to litigate the case every time it was up for trial.

[35.] The prejudice suffered by Mr. Aldana in this case is palpable and real. He has been forced to incur additional legal expenses because the court could, or would, not accommodate his trial in either October or December, 2011. He has suffered actual and significant financial hardship. He has suffered additional anxiety by never knowing when - or if - his trial would actually take place. The lack of court space and the lack of accredited interpreters are serious systemic problems that have not been adequately addressed by the provincial government for years. I find that Mr. Aldana has been significantly compromised by this institutional malaise.

[36.] The total institutional delay is within the range tolerated by appellate courts. However, just as there is no stale date at the upper end at which point the delay is automatically unjust, there can be no bottom end at which all cases will be justly tried regardless of the number of times the case has been up for trial. In these circumstances, it a fact that there have now been three trial dates set and attended within nine months. This, in my opinion, has offended Mr. Aldana’s right to be tried with a reasonable time.

5.0: Conclusions

[37.] The delay in this case between November 29, 2010 and January 31, 2012 is 14 months. My findings of the reasons for delay and their apportionment are as follows:

Waiver 0 months

Inherent Time Requirements: 5 months

(intake, not ready for trial)

Actions of the Applicant: 0 months

Actions of the Crown: 0 months

Limits on Institutional Resources: 9 months

Other Reasons for Delay 0 months

Total Delay: 14 months

[38.] In assessing whether or not the delay in this case was unreasonable or not, I have taken into account the following:

(a) Both parties acted reasonably and with due diligence;

(b) Institutional delay is within the guidelines for Peel Region;

(c) This was a simple case that got derailed by systemic factors that are both significant and long standing; and

(d) The prejudice to the Applicant was tangible.

[39.] Balancing all of the factors set out by the Supreme Court in Morin, and for all the brief reasons set out herein, I find that the Applicant has established on a balance of probabilities that the delay in this case is unreasonable in all of the circumstances. His application under section 11(b) of the Charter is granted. The charges are stayed.

Released: January 31, 2012

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice