Court Information

Court: Ontario Court of Justice, Old City Hall - Toronto

Between: Her Majesty the Queen

And: Julian Taylor

Counsel:

• L. Bridger, for the Crown/Respondent
• J.M. Rosenthal, for the Defendant/Applicant

Heard: January 30 and February 26, 2013

Judge: Melvyn Green, J.

Reasons for Ruling

(Re Charter s. 11(b))

A. Introduction

[1] On February 2, 2012, the defendant Julian Taylor was arrested and charged with having care and control of his motor vehicle while impaired and while his blood alcohol concentration (BAC) was above the legal limit. His trial was scheduled to take place on September 28, 2012. It was adjourned at the request of the Crown. A second trial date of April 15, 2013 was then set. Mr. Taylor, as applicant, asserts that the 14½-month delay between his being charged and his pending April 2013 trial date violates his right "to be tried within a reasonable time" as protected by s. 11(b) of the Charter. As a result, he says, the charges he faces should be stayed pursuant to s. 24(1).

[2] In the circumstances of this case, I am satisfied that the defendant's constitutional claim is made out. My reasons follow.

B. Evidence

(a) The Circumstances of the Alleged Offences

[3] The defendant was asleep when the police found him slumped over the steering wheel of a car in a parking lot on February 2, 2012. The car was immobile but the motor was running. There is no evidence of any collision or personal or property damage or, for that matter, that the defendant had ever driven the car. He was arrested at 4:08am. His truncated BAC readings were approximately twice the legal limit. The defendant was eventually released on a Promise to Appear.

(b) The Chronology of the Proceedings

(i) From Arrest to Fixing the First Trial Date

[4] An Information charging the defendant with the offences of impaired and "over 80" care and control of his vehicle was sworn on February 6, 2012, some four days following his arrest. The defendant retained counsel and requested disclosure before his first scheduled appearance on March 23rd. Disclosure was then incomplete and the matter was remanded to April 5th. By then the defence had scheduled a Crown pre-trial and the matter was put over two weeks to permit its completion. The defence tried to schedule the defendant's trial on the return date, April 19th, but the Crown brief was not available. As a result, the matter was adjourned one day. On its return, defence counsel advised that he had requested the "very first available date" from the trial co-ordinators' office. That date – September 20, 2012 – was agreeable to the defence but not to the Crown and, in the result, the date of September 28, 2012 (a little more than five months distant) was set for the defendant's trial. To "preserve [the defendant's] s. 11(b) rights", counsel further advised that the defence was "available and ready for trial" on April 26th and a number of other dates in May, June, July, August and early September. Crown counsel advised the court that the police witnesses' leave dates had been provided to the trial co-ordinators' office when available trial dates were canvassed. The Crown's earliest availability was not otherwise detailed.

[5] In brief, the defendant's first trial date was scheduled to occur close to eight months after his arrest, most of which was clearly attributable to limitations on institutional resources.

(ii) From Crown Adjournment to the Second Trial Date

[6] The defence was served with a Crown adjournment application on September 12, 2012, approximately two weeks before the scheduled trial date. The application was set down for September 19th, but a paucity of supporting information led to the motion not being heard until the next day. In essence, the officer in charge of the case (the OIC) failed to advise the "main police witness" (in fact, the arresting officer) of the trial date until September 7th. The essential witness had by then committed herself to an out-of-town charity run on the scheduled trial date. The Crown application to adjourn was opposed by the defence. In granting the "late adjournment application" (as rightly described by Crown counsel) the presiding judge noted that the defence "may find s. 11(b) relief as a result". At the Crown's request, the matter was remanded to set-date court on September 24, 2012, two juridical days later. The earliest date then offered by the Court, and the date fixed for trial, was April 15, 2013. The defence flagged its concern about the defendant's s. 11(b) rights. Citing R. v. Lahiry, the defence further advised that counsel was available to proceed to trial as early as October 4th and on numerous specified dates in October and each subsequent month from November through the early part of April. Crown counsel did not indicate what, if any, dates the prosecution was prepared to proceed prior to that fixed for trial. Nor, in the months following September 24, 2012, did the Crown advise defence counsel of any courtroom availability resulting from collapsed or collapsing trials or otherwise make any effort to expedite the defendant's trial.

[7] The defendant's application for s. 11(b)-founded Charter relief was filed on December 16, 2012, soon after receipt of the requisite transcripts. The Crown's response followed on January 21, 2013. The s. 11(b) hearing was set down for January 30th. It was not reached until late that day due to an ongoing trial and, as a result, was put over for continuation on February 26th.

[8] Summarizing, the Crown adjournment application led to the defendant's trial being delayed by a further 6½ months. The second trial date – that of April 15, 2013 – is some 14½ months after the defendant was first charged.

(c) The Defendant's Circumstances

[9] The defendant filed and was cross-examined on an affidavit tendered in support of his Charter application. He had immediately retained counsel following his arrest as he "wanted these matters to resolve as quickly as possible".

[10] The defendant is 34 years of age. He lives in Toronto and has a one-year-old daughter who lives with her mother in Brantford and for whom he provides support. Although there are trains to Brantford, the defendant ordinarily drives there to visit his daughter. The duration of the proceedings had protracted the resolution of child custody and support arrangements and aggravated the defendant's anxiety about future visits with his daughter.

[11] The defendant is a professional musician who performs throughout North America. He also works part-time as a salesman for a brewery. He depends on his driver's license for his livelihood.

[12] The defendant was diagnosed with Crohn's disease and colitis in 2009. Although the ingestion of alcohol can aggravate the condition if untreated, the defendant's prescribed medication does not preclude its consumption. Flare-ups of the defendant's medical condition can be debilitating, as occurred shortly after his trial was adjourned in late-September 2012 and which caused him to be "totally out of commission for about a week". The defendant averred that he was "constantly stressed and anxious" and that it had "all become significantly worse as time progressed".

[13] The defendant has no criminal record. In January 2009, charges generically similar to those he currently faces were stayed for unreasonable delay. The defendant denied Crown counsel's suggestion that, based on his 2009 experience, the adjournment of his trial in September 2012 offered him the hope of a strategic advantage rather than causing him additional distress. His position, in essence, is that he had always wanted the earliest possible resolution to sort out his custody, visitation and employment issues and to alleviate the stress that accompanied each. The protraction of the proceedings had only exacerbated his anxiety. The persistent defence efforts to secure the earliest possible trial dates and otherwise move the matter forwards weigh against my drawing the Crown-proposed inference.

[14] Other than his personal attendance before me throughout the s. 11(b) hearing, the defendant has always appeared by way of designation.

C. Section 11(b): The Analytical Framework

[15] The fundamental architecture of s. 11(b) analysis is long settled. The relevant factors are set out in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.), at para. 31:

1. 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 defendant;
   • (c) actions of the Crown;
   • (d) limits on institutional resources, and
   • (e) other reasons for delay; and
4. prejudice to the defendant.

[16] The "length of the delay", as said in Morin, supra, at para. 35, is "the period from the charge to the end of the trial". For purposes of s. 11(b) applications brought by way of preliminary motion (as most, including the one before me, are), the "end of the trial" is nominally the date scheduled for an accused's trial. The "charge", or start point in such calculation, is, as explained in Morin, supra (affirming R. v. Kalanj, [1989] 1 S.C.R. 1594, at 1607), "the date on which an information is sworn".

[17] Again citing the seminal case of Morin, at para. 31, the s. 11(b) exercise involves "a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay". In her concurring opinion in the same case, McLachlin J. (as she then was) noted, at para. 88, that, "[w]hat is important is how those factors interact and what weight is to be accorded to each". Indeed, the legal characterization and allocation of particular periods of delay is a common feature, as here, of the adjudication of s. 11(b) claims.

[18] The primary interests protected by this provision are those of the defendant: security of the person, liberty and fair trial rights. Societal interests (including that criminal charges, particularly serious ones, are tried on their merits and ensuring that those charged with criminal transgressions are not only brought to trial but quickly and fairly) are also of concern: R. v. Morin, supra, at para. 26-30, R. v. Askov (1990), 59 C.C.C. (3d) 449, at 474 (S.C.C.); R. v. Qureshi (2005), 128 C.C.C. (3d) 453, at 458 (Ont. C.A.) and R. v. Godin (2009), 2009 SCC 26, 245 C.C.C. (3d) 271, at para. 40 (S.C.C.)

[19] As with all assertions of a Charter breach, the defendant bears the burden of establishing a violation of his s. 11(b) rights. While no mathematical formula obtains, some assistance in defining the reasonableness of pre-trial delay may be found in the administrative guidelines first articulated by the Supreme Court in Morin. As there set out, the standard for permissible institutional or systemic delay in the case, as here, of a relatively simple provincial court trial is eight to ten months. (See R. v. G. (C.R.), (2005), 77 O.R. (3d) 308 (C.A.), at 315.) This metric must not be confused with a fixed limitation period; its dimensions have a somewhat elastic quality and may depend on a variety of societal and case-specific factors. I return to the appropriate measure for institutional delay in the case before me in due course.

[20] Finally, I note that a stay of proceedings is the only appropriate remedy in those cases where the s. 11(b) hurdle of "unreasonable delay" is crested: R. v. Thomson, 2009 ONCA 771, 248 C.C.C. (3d) 477, at paras. 9-10 (Ont. C.A.). Unlike other claims for such relief, the standard of "clearest of cases" has no application, nor need prejudice to a defendant's right to a fair trial or right to make full answer and defence be established to attract the constitutional remedy here sought.

D. Applying the s. 11(b) Framework

(a) Introduction

[21] As summarized by a unanimous Supreme Court in R. v. Godin, supra, at para. 18:

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.

The "length of the delay" for the instant s. 11(b) analysis is the period between February 6, 2012 (the date the Information charging the defendant was sworn) and April 15, 2013 (the defendant's second scheduled trial date). The Crown rightly concedes that this global delay of some 14.3 months attracts constitutional scrutiny. It is also acknowledged that there has been no waiver of s. 11(b) protection for any of the intervals that compose this delay; accordingly, the total delay for purposes of constitutional reckoning remains 14.3 months. None of this delay is attributable to the conduct of the defendant. Its explanation falls to three heads of consideration: the inherent time requirements of the case, the actions of the Crown and limits on institutional resources. Prejudice to the defendant must, of course, be factored into the ultimate assessment of whether the pre-trial delay is unreasonable, as must consideration of the societal interests that s. 11(b) is intended to protect.

(b) The Reasons for the Delay

(i) Inherent Time Requirements of the Case

[22] This is a routine case of care and control while impaired and while having an excessive BAC. Neither party suggests that there are any unusual or complex facets to its prosecution or defence. There have been no notices of expert witnesses. Although I have not been provided with a copy of the Crown brief, there seems no reason to believe that its prosecution can involve much more than the testimony of the officers who first attended on the defendant, the on-scene and booking room videotape evidence, if any, and the certificate of analysis of a qualified breath technician. Even if a constitutional argument is advanced, counsel, following a Crown pre-trial meeting, are agreed that no more than one day, by way of a blended proceeding, is required for a full trial of the matter, including any Charter motions.

[23] Further, the nature of the case is such that the entirety of the evidence necessary for its prosecution was complete by the time the officers concluded their shifts on the day of the defendant's arrest. Disclosure preparation required no more than the copying of the officers' notes, the documentation related to service of the relevant certificate and any videotape evidence. Yet, for reasons that remain unexplained and confounding, the defendant was not required to attend in court for some seven weeks after his release from the station on February 2, 2012. Some disclosure was provided to the defence on that first appearance date, March 23, 2012. Despite the seven-week hiatus and an express defence request for full disclosure, neither the certificate of analysis or in-car video was available on that date. No reason has been advanced for the delay in their production. The defence had already set a Crown pre-trial meeting by the return date (April 5, 2012) necessitated by the incomplete disclosure and was prepared to set a date for trial on the following appearance, April 19, 2012. A missing Crown brief led to a further adjournment, if only for one day, to April 20th. The defence was then prepared to accept the "very first available date" offered by the trial co-ordinators' office, that of September 20th, but the Crown was not available until September 28th, which date was fixed for trial.

[24] Those events that consume the weeks and, too often, months preceding the setting of a trial date are typically allocated to the inherent time requirements of the case and are thus neutralized in the calculation of the reasonableness of any delay. As famously said by Sopinka J. in Morin, supra, at para. 41:

All offences have certain inherent time requirements which inevitably lead to delay. Just as the firetruck must get to the fire, so must a case be prepared. …

As well as the complexity of a case, there are inherent requirements which are common to almost all cases. … [T]hey consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc. All of these activities may or may not be necessary in a particular case but each takes some amount of time. As the number and complexity of these activities increase, so does the amount of delay that is reasonable. Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay. [Emphasis added.]

[25] I have detailed, if at the cost of some repetition, the intake process preceding the fixing of a trial date in the case before me to make clear the reasons why, in my view, that period of more than 2½ months is not entirely attributable to "inherent" considerations. I appreciate, of course, that the defendant's case is one of many vying for the attention of the police and Crown, that the preparation of a police brief requires some organization for transfer to the Crown and ultimate dissemination to the defence by way of disclosure, and that each new case requires administrative attention as it's loaded into a busy court's calendar. That said, absent explanation – and none has been advanced – I cannot but echo the concerns expressed by a number of my judicial colleagues as to the delays involved in the completion of these tasks in the case, as here, of the most routine of prosecutions involving no more than a small handful of police witnesses whose evidence was chronicled and preserved by the time the defendant left the station. Nor has any explanation been proffered for why essential elements of disclosure (including the critical certificate of analysis) were not available by the defendant's first appearance, thus necessitating a further two-week adjournment. Absent some accounting, not all of the ten weeks preceding April 20, 2012 (when the trial date was finally scheduled) fall automatically under the rubric of "inherent time requirements". Whether a product of the police or the prosecution service, they are at least arguably colourable as "actions of the Crown".

[26] No bail hearings delayed the intake process. The defendant had retained counsel by his first required appearance. Inherent time requirements reasonably include an opportunity for defence counsel to consult with his client upon receipt of disclosure and some relatively brief period for a Crown pre-trial. But, as is clear from the instant chronology, the defence was prepared to fix a trial date immediately upon the completion of these intermediate steps. As noted by Code J. in R. v. Lahiry (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525, at para. 22 (Ont. S.C.), "two months is a reasonable intake period in simple drinking and driving cases". Given the conspicuous absence of a judicial pre-trial, no longer period can be condoned to accommodate the time requirements inherent in this case. These two months are of neutral value in the s. 11(b) calculus. However, the remaining two weeks of delay antedating April 20, 2012 are clearly attributable to the conduct of the state and are so allocated in the analysis that follows.

(ii) Limits on Institutional Resources

[27] The calculation of the delay properly attributable to institutional factors is here complicated by the setting of two trial dates and the reasons for and timing of the adjournment of the first.

[28] Some delay between counsels' readiness to proceed to trial and a court's capacity to absorb that trial is inevitable. As noted earlier, the Supreme Court sanctioned a guideline of eight to ten months for such institutional delay. However, even in Morin, at para. 52, the Court signaled that, "when the case load has been constant over a substantial period of time the delay envisaged by the guideline may be regarded as excessive". Indeed, in R. v. Sharma (1992), 71 C.C.C. (3d) 184, the companion case to Morin, the Supreme Court, at para. 26, applied the "lower range of the guidelines" in view of the original trial jurisdiction having had "time to address the problem" of institutional delay.

[29] Many judges in the two decades since Morin have spoken of a reduced tolerance for institutional delay, particularly in "simple" cases such as that presented by the fact scenario in Morin and Sharma and the one before me. As said by Molloy J. in R. v. Stephens, [2007] O.J. No. 3500 (S.C.J.), at para. 67, "in determining when delay can be said to be 'unreasonable', courts are increasingly looking to the bottom of the Morin guidelines, rather than to the extreme upper limits". (See also R. v. Meisner, [2003] O.J. No. 1948 (S.C.) and R. v. Osei, [2007] O.J. No. 768 (S.C.), at paras 39-40.)

[30] The caseload in this courthouse reflects the long-settled nature of prosecutions for offences involving allegations of operation or care and control of a motor vehicle while impaired or with an excessive BAC and, as well, the consequent downward adjustment of tolerance for institutional delay. Canvassing the relevant authorities, Hryn J., in R. v. Salehji, [2010] O.J. No. 4889 (C.J.), at para. 10, concluded:

There is current case law specific to the Old City Hall, that a reasonable delay with respect to drinking and driving cases should be at the lower end of the range of eight to ten months set out in Morin: see Regina v. Bhatti, [2010] O.J. No. 3595, Regina v. Lima, [2006] O.J. No. 1746, Regina v. DePada, [2010] O.J. No. 2992, Regina v. Black, [2006] O.J. No. 513.

(See also: R. v. Leung, [2012] O.J. No. 1874 (C.J.), at para. 104.) The history of the instant case empirically reinforces this assessment. The trial co-ordinators offered a trial within five months of the defendant's first set-date appearance on April 20, 2012, and a second less than seven months after the Crown adjournment application was granted. Like my judicial colleagues in this jurisdiction, I consider eight months the outer limit of reasonable institutional delay. While some jurists have described the Morin guidelines as a "sliding scale" in which the length of acceptable institutional delay and prejudice are inversely related (see R. v. Richards, 2010 ONSC 6202, [2010] O.J. No. 4958), my findings as to prejudice, which I soon address, give me no reason to amend my acceptance of eight months as the appropriate standard in this case. Of course, this factor is but one in the matrix that informs any s. 11(b) determination.

[31] Institutional delay, as said in Morin, at para. 47, "is the period that starts to run when the parties are ready for trial but the system cannot accommodate them". (See, also, R. v. Lahiry, supra, at para. 26, and R. v. Tran (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 32 (Ont. C.A.).) Put otherwise, the institutional delay clock begins to run not when counsel is ready to fix a date for trial but, rather, when he or she is available and prepared to conduct that trial. In Lahiry, at para. 31, Code J., rightly observed that, "in routine drinking and driving cases, the amount of time needed to prepare for a short trial is not great". Nonetheless, in the absence of a clear record as to counsel availability courts have frequently subtracted two weeks to a month from the interregnum between a trial and the date on which it was set to at least nominally allow for defence counsel preparation and availability. There is no need to resort to such legal fictions in the matter before me. Counsel for the defendant expressly indicated on April 20, 2012 that he was ready to proceed to trial some six days later, on April 26th. Given the routine nature of this prosecution, the ample preceding opportunity to review the disclosure brief and the vast experience of counsel in similar cases, I have no reason to doubt the sincerity of his proffer. In any event, the Crown was not available until some eight days after the first trial date then offered by the court, that of September 20, 2012. Rather than "lose sight of the forest for the trees", as cautioned against in R. v. Godin, supra, at para. 18, I treat the period from April 26, 2012 to the first scheduled trial date of September 28, 2012 – an interval of just over five months – as institutional delay.

[32] I do not approach the legal characterization of the almost seven-month period between the dates the second trial was fixed (September 24, 2012) and its scheduled occurrence (April 15, 2013) in the same manner. In my view, as I am about to develop, this latter period is properly read as delay attributable to the conduct of the Crown and it will be so assessed in the ultimate s. 11(b) calculus.

(iii) Actions of the Crown

[33] I have already assigned to "Crown conduct" two weeks of that period otherwise attributable to the inherent time requirements of the case. The more than 6½ months between the first and second scheduled trial dates (September 28, 2012 and April 15, 2013, respectively) are similarly colourable. Accordingly, slightly more than seven months of delay are assignable to the action or inaction of the Crown.

[34] As regards the substantial latter period, the Crown takes no issue with the obvious: state conduct caused the adjournment of the defendant's first trial date. Accordingly, as set out in the Crown factum, it "accepts responsibility for the adjournment and at least some of the delay that resulted". I see no basis for the qualification captured in the words "at least some of". As I have already said, the entire 6.7 months occasioned by the Crown adjournment properly falls to the Crown.

[35] The first trial date of September 28, 2012 was set to accommodate the availability of the Crown's witnesses. Yet it appears that no effort was made to advise the arresting officer of this trial date until September 7th, some 4½ months later, and no explanation has been tendered for the police laches. Had the officer been promptly informed of the trial date, logic rather than speculation generates three realistic scenarios, any of which would have abbreviated if not eliminated any further delay. First, the officer would have rightly prioritized her courtroom obligation and declined to participate in the charity event. If the officer had already committed herself to the event by the time she was informed of the trial date, she could still have withdrawn months before its occurrence and attended the trial or, by way of the third alternative, a very early Crown adjournment application could have been advanced which, if granted, would likely have extended the delay by only the difference between the set-date appearance on April 20, 2012 and the date of that early application, thus salvaging a trial which, to that point, was not in constitutional jeopardy.

[36] None of this transpired because the OIC failed to even notify the arresting officer (who, not incidentally, was the Crown's essential witness) about the trial date until a few weeks before its scheduled occurrence. "Regretfully", as Crown counsel put it, the OIC "dropped the ball". More regretfully, it fell directly on the defendant's s. 11(b) toe. The state still had a choice at this point. It could have insisted (by order of a superior officer or, if necessary, a subpoena) that the arresting officer attend on the defendant's trial date. This was the road not taken. Instead, the Crown elected to move to adjourn the defendant's trial, undoubtedly aware, as was the trial judge who granted the application, that the inevitable delay that followed might well imperil the defendant's right to a trial without unreasonable delay.

[37] To compound the problem, the Crown did not endeavour to expedite the defendant's trial when seeking the adjournment or when the matter returned to fix a fresh trial date. The Crown did not seek to adjourn less pressing or serious matters or those that were not constitutionally threatened. Despite defence counsel's opposition to the adjournment application and his strong assertion of his client's s. 11(b) rights, and despite the presiding judge alerting the parties to the risk of unreasonable delay inherent in the adjournment, the Crown made no effort to contact the defence respecting the availability of earlier trial dates. I appreciate, as said in R. v. Allen (1996), 110 C.C.C. (3d) 331, at 348 (Ont. C.A.), that "[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources". However, on the record before me there is no evidence that the Crown even inquired as to emergent court availability with the trial co-ordinators or canvassed this possibility within its own office. The Crown's conduct, on my assessment, speaks to a lamentable indifference to the defendant's s. 11(b) rights.

[38] The Crown, in short, not only caused the impugned delay but made no effort to mitigate its impact or otherwise prioritize the proceedings. In R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321, at para. 46, the Court of Appeal cautioned that,

… there may be circumstances in the course of a criminal proceeding where it is incumbent upon the Crown to select, or arrange for, a hearing date more commensurate with the right of an accused person to be tried within a reasonable time. Indeed, the longer the proceeding is in the system, the greater the responsibility of the Crown to expedite the hearing date to get the case on for trial.

The Crown here did nothing to acquit itself of this responsibility. (See also: R. v. M. (R.) (2003), 180 C.C.C. (3d) 49, esp. at para. 9 (Ont. C.A.), and R. v. W. (A.J.) (2009), 2009 ONCA 661, 257 O.A.C. 11, at para 41.)

[39] Delay attributable to the conduct of the Crown is generally viewed more seriously in the s. 11(b) calculus than that attributed to systemic factors. It has also attracted critical judicial comment. For example, in R. v. Brown, [2005] O.J. No. 2395, MacDonnell O.C.J. (as he then was) said:

I regard the other Crown delay as weighing very heavily against the state. Unlike institutional delay, the other Crown delay was not beyond the control of the individual state actors who caused it. It was the direct result of a simple failure of the police to do their job. As a matter of common sense, that weighs heavily against the Crown: see, e.g., R. v. McNeilly, [2005] O.J. No. 1438 (Ont. S.C.), per Hill J., at paragraph 72. [Emphasis added.]

The remarks of Dawson J. in R. v. Yun, [2005] O.J. No. 1584 (S.C.), at para. 42, are to similar effect:

[While w]e tolerate a degree of institutional delay because it is unavoidable. … delay caused by the Crown is particularly troubling. … The public, and those injured by potentially criminal conduct, are understandably distressed when criminal charges are dismissed due to delay. This makes needless delay of a significant length which is caused by the police or Crown particularly difficult to accept. … In my view the interests protected by s. 11(b) are affected in a fundamentally more unacceptable fashion when the police or Crown fail to do what they are expected to do and there is no acceptable excuse for the delay. … In the long term, tolerance of substantial delay inexcusably caused by the Crown or police will have a detrimental effect upon societal interests in ensuring that accused persons are brought to trial in a timely fashion. [Emphasis added.]

See also: R. v. Chrostowski, [2006] O.J. No. 1306, at para. 61 (S.C.), R. v. Stephens, supra, at para. 68, and R. v. Panko, 2007 ONCJ 212, [2007] O.J. No. 1867, at para. 11 (C.J.)

(c) Prejudice

[40] There is no cognizable prejudice to the defendant's liberty interests. He was released from the station. No terms restrict his mobility. Other than two attendances before me in the course of this motion, his only court appearances have been by way of delegation. Similarly, there is little of substance in the defendant's affidavit or testimony, or otherwise in the record or nature of the case, that raises material concern about the risk of compromise of the defendant's fair trial interests as a result of the protraction of his prosecution.

[41] I am less sanguine, however, about the impact of the delay on the defendant's security interests. I accept that the defendant's charges are the primary font of his concerns, particularly those pertaining to his employment and deeply personal matters such as his relationship with his daughter and the determination of financial and custodial arrangements with her mother from whom he is separated. Undoubtedly, these concerns are rooted in his being charged and the uncertainty that accompanies any pending criminal trial, especially one where, as here, a defendant's income and the contours of his intimate relationships may be adversely affected by the loss of driving privileges. Nonetheless, there comes a point where the prejudice flowing from being criminally charged is aggravated by inordinate delay in the resolution of those charges. Based on his evidence, I find that the protraction of the instant proceeding well beyond both the initial trial date and the parameters of reasonable systemic delay has taken a palpable toll on the defendant's security interests. As succinctly put in R. v. Egorov, [2005] O.J. No. 6171 (C.J.), at para. 7, "prolongation of proceedings can cause what was initially charge prejudice to become prejudice caused by institutional delay". (See also: R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91, at para. 33 (Ont. C.A.) and R. v. Pusic (1996), 30 O.R. (3d) 692, at para. 173 (S.C.).) This proposition is likely even more cogent where, as here, the excessive delay is largely assignable to negligent conduct on the part of the police rather than purely systemic factors.

[42] Apart from my finding of actual or specific prejudice, or in the alternative, I think it "reasonable", as said in R. v. Godin, supra, at para. 34, "to infer … that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice" to the defendant's security of the person "in the sense", again citing Godin, at para. 30, "of being free from the stress and cloud of suspicion that accompanies a criminal charge". Given the absence of any delay attributable to the defendant or otherwise waived, his security interests have been engaged for the approximately 14½ months that bridge his being charged and his pending trial dates. Even subtracting the neutral intake period and allowing for reasonable institutional delay, the defendant's duress extends more than four months (or approximately 50%) beyond that contemplated by the appropriate guideline – sufficient, in my view, to acknowledge at least a modicum of inferred prejudice.

(d) Balancing

[43] The defendant is constitutionally guaranteed a trial within a reasonable time. He has done everything within his power to ensure the protection afforded by this right. Yet, despite his efforts, some 14½ months will have elapsed before his most simple of trial proceedings will even commence. Some five months of this delay is, I have found, attributable to institutional factors. More significant in the final calculus is the further seven months that are properly allocated to the conduct of the Crown. Together, these twelve months well exceed the appropriate guidelines. The excessive, or "unreasonable", delay has adversely impacted on the security interests of the defendant that s. 11(b) is intended to safeguard.

[44] As noted earlier, the final balancing commands consideration not only of a defendant's interests but those of society as well, including the public interest in having cases, particularly serious ones, determined on their merits. As Code J. observed in R. v. Lahiry, supra, at para. 89, "for over twenty-five years drinking and driving has been regarded as a very serious offence". Of course, no genus of offences is immunized from s. 11(b) scrutiny, nor are all drinking and driving offences equally grave. Accepting the unproven Crown allegations for purposes of this motion, the defendant had a very high BAC at the time of his arrest. While it is tempting to speculate about the risks involved in his activating the vehicle in which he was found sleeping, the reality, if only fortuitously, is that the aggravating circumstances that too often accompany drinking and driving offences – excessive speed, erratic driving, collisions and human injury or the immediate endangerment of others – are absent in the presenting fact pattern.

[45] Consideration must also be given to the regard – or, more accurately, lack thereof – for the seriousness of the charges as reflected in the state's conduct of the prosecution of this matter. As recently said by A.J. Goodman J. in R. v. Krywucky and Segal, 2013 ONSC 1112, at para. 197:

I agree that society has a heightened interest in seeing that serious offences are tried, such as we find in this case. The corollary to that point is that there is a corresponding obligation on the Crown to ensure that trials for such serious offences are held in a timely manner.

Dambrot J. expressed a similar sentiment in R. v. Chrostowski, supra, at para. 42:

[G]iven the seriousness of the allegations, one would have expected that the Crown would have managed this case with a degree of attention commensurate with that seriousness. … But if the Crown does not take the management of serious cases seriously, then there will inevitably be delays of the sort that took place in this case, and the outcome of applications under s.11 (b) will not necessarily favour the Crown despite the seriousness of the offences.

[46] Here, the Crown conduct throughout the proceedings belies any appreciation of the seriousness of drinking and driving offences or, at minimum, those before this court. The Crown is responsible for the inordinate delay of the defendant's trial. It effectively countenanced the police negligence by seeking an adjournment rather than requiring the essential officer's attendance. It made no effort to expedite imperiled proceedings. It gave no heed to the defendant's or society's interest in a trial on the merits within a reasonable time. Indeed, the only occasion when the Crown manifested any concern for either trial delay or the seriousness of the charges was in the course of defending this application. It is difficult to reconcile the Crown's sudden embrace of the gravity of the prosecution with the conspicuous indifference that characterized its prior conduct.

[47] In the end, and with due consideration of all the relevant factors that inform s. 11(b) – including societal interests – I am satisfied that the defendant's right to a trial within a reasonable time has been infringed. Some 14½ months have been consumed in processing a simple case that, accounting for its intake requirements and systemic limitations, ought not to have extended beyond ten months. The further delay is entirely attributable to the conduct of the state. Those additional months have exacted a specific and inferable toll on the defendant's security interests. Balancing all of these factors, the defendant's s. 11(b) rights have been abridged. In the result, the charges he faces are stayed.

E. Conclusion

[48] Consistent with these reasons, I find that the defendant's s. 11(b) rights have been violated. A stay of these proceedings, pursuant to s. 24(1) of the Charter, follows.

[49] To be clear, my conclusion would be no different were I to have found that the nearly seven months of delay following the adjournment of the first trial was properly attributable to a combination of Crown conduct and institutional factors, particularly given the state's causative role in the lengthy adjournment and the Crown's failure to indicate its trial availability at any time prior to the April 15, 2013 date offered by the court.

Released on March 20, 2013

Justice Melvyn Green