Court File and Parties

Court File No.: Central East - Newmarket 4911-998-11-10620-00

Date: 2013-03-22

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ricky Lai

Before: Justice S.C. Armstrong

Heard on: March 13, 2013

Oral Ruling given: March 21, 2013

Written Ruling released: March 22, 2013

Counsel:

B. Jurianz, for the Crown

P. Lindsay, for the accused Ricky Lai

ARMSTRONG J.:

Introduction

[1] On November 11, 2011, Ricky Lai was charged with impaired driving and driving with excess alcohol in his system or "over 80".

[2] On March 13, 2013, I heard his application under sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms to have the charges stayed because they were not tried within a reasonable time. The key issue at this hearing was the characterization of a videotape disclosure issue.

[3] The next day, after carefully considering the matter, I notified counsel of my decision to grant the application. Here are my reasons for doing so.

The Legal Framework

[4] Section 11(b) of the Charter aims to protect both the individual rights of an accused and the interests of society. It guarantees the right of an accused to be tried within a reasonable time by protecting three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of exposure to 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 proceedings take place while evidence is fresh and available.

[5] The section also seeks to protect society's interest in law enforcement by having cases tried on their merits and by having accused persons tried quickly and fairly. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin, [1992] S.C.J. No. 25 at paras 29 and 30.

[6] To determine whether an individual's section 11(b) rights have been infringed, the court must consider the length of the delay and the reasons for it using the four-factor framework set out in paragraphs 31 and 32 of Morin, and then decide whether the delay is unreasonable in light of the individual and societal rights the section is designed to protect.

[7] The four factors to be considered are: (1) the length of the delay, (2) whether there has been a waiver of any portion of the delay by the accused (3) the reasons for the delay (including (a) the inherent time requirements of the case, (b) the actions of the accused (c) the actions of the Crown, (d) institutional delay and (e) other reasons for delay) and (4) whether the delay has caused prejudice to the accused.

The Delay and the Reasons for it: Application of Morin Framework

(1) Length of Delay

[8] In deciding whether the overall delay is unreasonable, the relevant time period is from the date the Information is sworn until the end of the trial (Morin, para. 35). In this case, this period runs from December 2, 2011 to March 15, 2013, or approximately 15.5 months. This period of time raises an issue of reasonableness that warrants inquiry.

(2) Waiver of Time Periods

[9] Mr. Lai did not waive any portion of the delay. Before his first appearance, counsel had been retained and a request for full disclosure, including video disclosure, had been made. Apart from a two-week period that is attributable to the defence, it is my opinion that Mr. Lai did not act so as to delay his trial.

(3) Reasons for the Delay

(a) Inherent Time Requirements – Neutral Time

[10] In my opinion, there are three periods of neutral time in this case.

[11] The first is the intake period, or the time from the date of the defendant's arrest until the day both parties were ready to set a trial date (Morin, paras 68-70). In this case, it runs from November 11, 2011 until January 24, 2012. I agree with both parties that the period from November 11 to December 14, 2011, or approximately 1.00 month, should be assessed as neutral time.

[12] Second, I would also count as neutral time the 1.25 month period from December 14, 2011, the date the pre-trial conference was set, until January 24, 2012, when it was held.

[13] The Court of Appeal has expressed conflicting views as to how judicial pre-trial conference scheduling is to treated for section 11(b) purposes: in some cases, it has been found to be institutional delay (see the cases reviewed in R. v. Vendittelli [2012] O.J. No. 2282, at paras 12-20; in others, the judicial pre-trial has been recognized as a "reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system" and as a general protection for the Charter rights of the accused (see R. v. Tran, 2012 ONCA 18, at paras 34-37, per Simmons J.A.), and has been treated as part of the inherent time requirements of the case and therefore as neutral time.

[14] In this case, the judicial pre-trial conference was effective in resolving a key point of disagreement between the parties. On December 14th, the parties' estimates of the time required for trial were very different: the Crown estimated six hours; the defence estimated two days. Since it is frequently more difficult to schedule a multi-day trial than a single-day trial because the individual trial judge's schedule also has to be accommodated, in my opinion, there was a clear need for judicial input in this case to come up with a realistic estimate of the time required for trial. The judicial pre-trial proved fruitful: after discussion, an estimate of one day for trial was agreed upon, and the trial date was set. In this way, the judicial pre-trial facilitated the protection of the defendant's Charter rights, as well as the effective use of limited court time. Accordingly, in my view, it should be treated as intake or inherent time; in other words, as neutral time.

[15] Third, I consider the 3.0 month period from February 8 to May 4, 2012 to be neutral time. Usually, the time between the date the parties are ready to set a trial date and the date the court can accommodate the trial is treated as institutional delay. However, in this case, the court had trial dates available in February, March and April. These dates were also available to the Crown, but not to defence counsel and/or his toxicologist.

[16] Defence counsel's first available date for trial was February 8, and Mr. Lindsay conceded that the half-month period from January 24 to February 8, 2012 should be treated as defence delay. He had five dates on which he was available for trial in February, four in March and four in April. The problem was that Mr. Lindsay's available dates did not match up with the dates offered by the court and available to the Crown, so May 4, 2012 was the first agreeable date. It is my opinion that, on the record before me, the time period from February 8 to May 4, 2012 should be considered neutral time.

[17] Accordingly, the neutral time in this case totals 5.25 months.

(b) Actions of the Accused

[18] As I have said, there is one period of defence delay amounting to 0.50 months.

(c) Actions of the Crown

[19] In my opinion, the time between the first trial date on May 4, 2012 and the third trial date on November 19, 2012 is attributable to the Crown.

[20] This delay arose out of a videotape disclosure issue. The relevant details are that defence counsel requested "all police video of [his] client on the night of his arrest" on November 21 and December 20, 2011. On February 9, 2012, the police informed the Crown that the drive containing the relevant videotape footage had malfunctioned and was being recovered. No timeline was given for the full recovery of the drive. However, this information was not conveyed to defence counsel until May 4, 2012, on the morning of the first day set for trial. At that time, the Crown ascertained that the videotape of the booking area, the cells and the breath testing room could be recovered, but there was no information as to if or when the videotape of the sally port and hallways could be recovered. The case was adjourned to September 7, 2012 so that the disclosure of the videotape could be made.

[21] The Crown correctly concedes that the 4.0 month period between the first and second trial dates, or May 4 to September 7, 2012 is Crown delay.

[22] The issue regarding the videotape of the sally port and the hallways remained unresolved on September 7, 2012, the second trial date. Defence counsel had asked about it in his August 29, 2012 letter and had not received a reply before he and Mr. Lai appeared for trial for the second time. The Crown tried to ascertain the status of the outstanding videotape at that time, but was unable to do so because the police system had crashed again. The case was adjourned to November 19, 2012. It was not until September 14, 2012 that the Crown learned from the police that the footage of the sally port and hallways had been lost and could not be retrieved, and conveyed this information to defence.

[23] In my opinion, the 2.50 month delay between the second and third trial dates, or September 7 to November 19, 2012 should also be considered Crown delay. I recognize that, in an attempt to have the trial proceed, the Crown offered to withdraw the impaired driving charge and to proceed on the over 80 charge only, and that he also offered to concede that the sally port and hallway videos did not show any signs of impairment. However, I disagree with the Crown that the outstanding videos were not material to a trial on the over 80 charge. I agree with defence counsel that they could be relevant to the grounds for arrest. Moreover, Mr. Lai clearly had a constitutional right to full disclosure. He was entitled to have all the disclosure before his trial started. Thus, the Crown had a duty either to provide the remaining videotapes before trial, or inform defence counsel that they were unavailable, so that he could consider his options.

[24] In short, there was an inexcusable systemic failure with respect to the videotape disclosure in this case. The videotape disclosure was requested on November 21, 2011, the police knew there had been a computer malfunction by February 9, 2012, yet it wasn't until the morning of the first trial date that anyone checked as to the status of this disclosure. The second trial date rolled around and there was no update on the status of the sally port and hallway disclosure, despite defence counsel's August 29th reminder. It was not until September 14, 2012 –a week after the case had been up for trial for a second time, and almost ten months after the videotape disclosure had first been requested by defence counsel - that the police determined that the videotape of the sally port and hallways could not be retrieved. By this time, a third trial date had been set for November 19, 2012.

[25] For these reasons, I attribute 6.50 months of the delay in this case to the Crown.

(d) Institutional Delay

[26] On the third trial date, November 19, 2012, the case was not reached until it was almost lunch time. This meant that only a half-day of court time remained, rather than the full day that had been estimated to be required for the trial. In addition, defence counsel had filed a section 11(b) application, which meant that more than a day would have been required to hear the application plus the trial, in the event the application was dismissed.

[27] The presiding per diem judge suggested that the case be started that afternoon and completed the next day, November 20, 2012, since he could not otherwise continue the case until March. However, defence counsel was not available to continue this case the next day because he was booked to do another trial in Newmarket. Although the Crown offered to give this case priority and continue the trial on November 20th, I agree with defence counsel that this was not a realistic option for him: his primary duty on November 20th was to his client whose trial had already been scheduled for that day, and he could not agree to continue Mr. Lai's trial to the detriment of the rights of his other client. As a result, Mr. Lai's trial was adjourned until March 13, 2013, when it came before me.

[28] In my opinion, the 4.00 month period between the third trial date on November 19, 2012 and the fourth trial date on March 13, 2013 is institutional delay.

(e) Other Reasons for Delay

[29] No other reasons for delay were suggested.

(4) Prejudice to the Defendant

[30] In 2009, the Supreme Court of Canada delineated the type of prejudice that is relevant on a section 11(b) analysis when it stated: "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 stress and the 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 raise a defence": R. v. Godin, 2009 SCC 26 at para. 30.

[31] In considering the prejudice suffered by Mr. Lai, I have borne in mind that courts must take into account prejudice resulting from delay in processing charges rather than prejudice arising from the charges being laid, that it is sometimes difficult to separate these two types of prejudice, that prejudice from being charged can develop into prejudice from delay and that prejudice can be inferred from delay in addition to being actually demonstrated.

[32] In my opinion, there has been minimal if any prejudice to Mr. Lai's liberty interests since he was released from the police station on a promise to appear on the day of the offence.

[33] As for the right to security of the person, this concept has been interpreted broadly since the earliest days of the Charter. In R. v. Mills, [1986] 1 S.C.R. 863 (S.C.C.) at para. 146, it was held to encompass protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" including "stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction…[that] cannot be disregarded or minimized when assessing the reasonableness of delay."

[34] I am satisfied that Mr. Lai has suffered prejudice to his right to security of the person. He filed an affidavit, on which he was cross-examined. While not all his claims are relevant to prejudice in the s. 11(b) context, he stated, in effect, that since he was charged, the case has been constantly on his mind and has had a broad, negative effect on his personal and work life.

[35] Mr. Lai is a married 35 year old man who lives with his wife and their daughter, who was born on April 23, 2012. He has never been charged with a criminal offence before. He worried about the outcome of his trial and the possibility of acquiring a criminal record, as well as the effect that losing his driving licence would have on his work, on his family and on his finances. While these concerns arose when he was charged, it is reasonable to infer that they were exacerbated by the prolonged delay in his case coming to trial. He specifically mentions that his anxiety has affected his ability to sleep.

[36] In general, I view the prejudice suffered in waiting for the first trial date as being qualitatively different than the prejudice of waiting for subsequent trial dates. Defendants can expect to wait a reasonable time for their trial, and I assume that most defendants feel stress and anxiety in "gearing up" and coming to court for their trial. When the trial does not proceed on the first date, however, it stands to reason that not only do defendants have to wait longer, but they suffer intensified anxiety and stress. Indeed, Mr. Lai specifically states that there has been conflict with his wife arising out of the charges, and that it recurred with the approach of each of the four trial dates.

[37] Finally, Mr. Lai has been exposed to financial prejudice in the form of additional legal and expert witness fees for the second, third and fourth trial dates, and has also had to impose upon his witnesses to take additional time off work to attend court.

[38] In his affidavit, Mr. Lai claimed prejudice to his ability to make full answer and defence. He stated that he intends to testify and that his ability to remember some details of the events in question has deteriorated as time has gone by. It stands to reason that the quality of recollection and evidence tends to deteriorate over time. Thus, courts have recognized that delayed trials result in at least a risk of fair trial prejudice that must be factored into the section 11(b) analysis: Godin, paras 35, 37 and 40.

[39] On the record before me, I find that Mr. Lai has suffered significant prejudice to his right to a fair trial and to his right to security of the person as a result of the delay in bringing this case to trial.

Balancing the Individual and Societal Interests

[40] In this case, the overall delay is 15.50 months. Of this total time, there are approximately 5.25 months of neutral time, 0.50 months of defence delay, 6.50 months of Crown delay and 4.00 months of institutional delay.

[41] The institutional delay in this case fell within the guideline of 8-10 months established for provincial court trials in Morin. However, it has been recognized that even a period of institutional delay within the guideline may result in an infringement of section 11(b) when all the factors are taken into account.

[42] In this case, although the defendant was responsible for a very minor portion of the delay, the remaining delay resulted from factors beyond his control. The institutional delay of 4.00 months is not in itself unreasonable. However, the Crown delay added 6.50 months to the institutional delay because of the unacceptably long time it took to resolve the videotape disclosure issue. In other words, 10.50 months, or about 2/3 of the delay was the responsibility of the state.

[43] In light of the overall delay of 15.50 months in an apparently uncomplicated drinking and driving case and my finding that Mr. Lai has suffered both actual and inferred prejudice, I am satisfied that he has demonstrated on a balance of probabilities that his section 11(b) rights have been infringed. The delay in this case was unreasonable. The only remedy is to stay the charges.

[44] The charges are stayed.

Released: March 22, 2013

Signed: "Justice S.C. Armstrong"