Court File and Parties

Court File No.: Brampton 11-13677 Date: 2013-04-10 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ryan Tobin

Before: Justice George S. Gage

Heard on: October 31, 2012, March 26, 2013 and April 10, 2013

Ruling on 11(b) Charter Application released on: April 10, 2013

Counsel:

• G. Hendry, for the Crown
• S. Price, for the accused

GAGE J.:

Introduction

On October 30, 2011, Ryan Tobin was charged with impaired driving and driving with excess alcohol in his system or "over 80".

His trial on these charges commenced before me on October 31, 2012. During the course of the evidence presented on that date the Crown confirmed that it would not proceed on the "over 80" charge. It was hoped that this would reduce the volume of evidence to a sufficient degree that the trial of the remaining charge could be completed. That hope was not realized. The trial is scheduled to continue on April 10, 2013.

On March 26, 2013, I heard Tobin's application under sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms to have the remaining charge stayed on the basis that it was not tried within a reasonable time.

One of the key issues in this application is the attribution of the time from the date upon which the trial was first scheduled to the date scheduled for continuation.

For the reasons that follow I have determined that the remaining charge should be stayed. I will say at this juncture that in relation to the description of legal principles to be applied I have borrowed from the excellent reasons of Justice Armstrong of our court in his recent ruling on a case called Lai and I am indebted to him for the assistance thus provided.

The Legal Framework

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.

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.

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.

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)
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

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 November 1, 2011 to April 10, 2013, or 17.3 months. This period of time raises an issue of reasonableness that warrants further inquiry.

(2) Waiver of Time Periods

Mr. Tobin did not waive any portion of the delay. Before his first appearance, counsel had been retained. Disclosure including a DVD recording of the breath room attendance was provided at the first appearance.

(3) Reasons for the Delay

(a) Inherent Time Requirements – Neutral Intake and Preparation Time

The first period of neutral time 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 October 31, 2011 to February 7, 2012. This includes the period of time from January 17 to February 7 during which a judicial pre-trial was arranged. For the reasons outlined by Watt J.A. in R v Nguyen [2013] ONCA 169 at paragraph 54 I conclude that this should be included in the neutral intake period.

The oft quoted Lahiry decision holds that the 11(b) clock does not start ticking until it can be reasonably said that the applicant is ready to commence a trial. Mr. Tobin is represented by Mr. Price. Mr. Price is an experienced litigator in this area. It is conceded that he could likely make himself ready to defend the charges within approximately one month of the date being set if not sooner. The Pei Affidavit in the Application Record demonstrates that he had dates available as early as February 9. This extends the neutral time period to March 7, 2012.

Mr. Tobin filed an affidavit in support of the motion on which affidavit he was cross examined by the Crown. The affidavit contains information suggesting financial prejudice arising from the delay in completing his trial – in particular relating to the necessity of appearing for a second trial date. In the course of his cross examination Mr. Tobin testified that the financial arrangements between him and Mr. Price had not been finalized until about a month before the first trial date. On the basis of that evidence the Crown contends that the neutral time for trial preparation should be extended to September 1, 2012. While that argument may have some merit in another fact situation I do not accept the reasoning on the facts before me. Defence counsel confirmed his retainer on November 18, 2011. He was on the record from that date forward. No interim applications were brought to be removed from the record. There was no request that the proceedings be delayed for financial reasons. In these circumstances I conclude that it would be an error to look behind the retainer notwithstanding Tobin's admission that the arrangements were not fully completed from a financial perspective until a month before the trial.

Accordingly, the neutral time in this case for intake and trial preparation totals 4.25 months.

(b) Actions of the Accused and Actions of the Crown

There are no actions of the accused or the Crown that directly impact the overall delay other than those circumstances addressed below under the heading of Combined Institutional, Crown and Defence Delay.

(c) Institutional Delay

(i) March 7 to October 31, 2012

Apart from the trial preparation argument concerning the financial retainer that I have rejected it is common ground that the time frame from March 7, 2012 to October 31, 2012 is properly characterized as institutional delay. This amounts to 7.75 months. It will be noted that Mr. Price was available to conduct a trial on a number of dates prior to October 31 (see paragraph – of the Pei Affidavit found at Tab 2 of the Application Record). It will also be noted that the date offered and set lay very close to the lower limit of the Sharma and Meisner guidelines for constitutionally tolerable delay in Peel.

(ii) October 31, 2012 to April 10, 2013

As noted earlier the trial was not completed on October 31. The trial was scheduled on the basis that the estimated time for completion was one day. An appreciation of the factors that contributed to the failure to complete the trial on the date upon which it was scheduled informs the assessment of the manner in which the delay during this time frame is to be attributed.

Backlog Management Strategies

In the Brampton courthouse trials involving accused persons who are not being held in custody pending trial that are scheduled in the Ontario Court of Justice for one day or less, unless otherwise designated, are assigned to a "To Be Assigned" a.k.a. TBA list.

The TBA list is a device born of the necessity created by a combination of limited judicial and infrastructure resources and the fact that on most days about 75-80% of scheduled trials will resolve or collapse by reason of adjournment, guilty plea, defaulting witnesses, defaulting accused or withdrawal. It is a deliberate strategy of overbooking designed to ensure that judicial resources are utilized to the maximum possible extent and courtrooms do not sit idle. Trials involving accused persons who are being held in custody and out of custody trials scheduled for more than one day are assigned to specific courtrooms on specific dates on top of the TBA list.

Thankfully, as a result of various strategies implemented by court administrators, Crowns, Trial Coordinators and Judges and the hard work of all those involved, the experience to this point in time is that on most days the collapse rate holds steady and the TBA list is dealt with. It is however a strategy that is delivering ever diminishing returns inasmuch as the population in Peel continues to grow along with the number of judicial days required to process the charges in this jurisdiction while the judicial complement and the number of courtrooms has remained static. The criminal trial judicial complement in Peel was last altered in March 2004 by the addition of 2 judges. Since 2004 the population of Peel has increased by more than 200,000. According to the latest Justice on Target figures the judges in the Ontario Court of Justice at Brampton now deal with more cases than any other courthouse in Ontario. Brampton continues to do this with 7 fewer judges than the next busiest courthouse in the province - Old City Hall – which in 2011 dealt with 1500 fewer cases. A re-reading paragraphs 59 through 66 of Justice Hill's decision in Meisner [2003] OJ 1948 represents a depressing and frustrating visitation to the realm of déjà vu. Plus ca change; plus c'est la meme chose.

It is not surprising then that notwithstanding the best efforts of Judges, court administrators and the Trial Coordinator the result of this and other backlog reduction initiatives in Brampton is, at best, described as a temporary abatement of a steadily rising tide. Under the present circumstances the precarious balance that results is all too easily disrupted by illness, seizures for applications, motions or pleas and/or by the dictates of the priority scheduling of trials for persons held in custody. When those other factors intervene or where the anticipated rate of collapse does not materialize problems inevitably occur. When that happens a dynamic is created wherein the Crown must prioritize the order of the trials for assignment as courtrooms become available.

October 31, 2012

On the date scheduled for trial this prosecution was part of a TBA list placed before Justice Clark in Courtroom 307. Mr. Tobin and his counsel, anticipating a full day of trial time, were present and ready to proceed at 10 am. On this date the anticipated collapse rate did not materialize with the result that a number of the TBA matters were seeking a home courtroom in which to proceed. Of these matters the Crown assigned the Tobin trial fourth priority. At the end of the morning Courtroom 306, in which I was presiding that day, became available. The trial, which had been scheduled for one full day, commenced at 2:20 in the afternoon. The Crown called two civilian witnesses and the arresting officer. The evidence of the two civilians was completed. The examination in chief of the arresting officer was completed. Upon the completion of the examination in chief the Crown, in a very responsible effort to foreshorten the trial and perhaps hoping to avoid an 11(b) issue, indicated that it would not proceed on the "over 80" charge. The cross examination of the arresting officer commenced after the afternoon break and continued to 4:35 pm (25 pages of transcript) at which point Defence counsel indicated he would be playing the breath room video during the course of his cross examination of the officer and the cross examination could not be completed that afternoon.

Counsel attended upon the office of the trial coordinator and secured a continuation date of April 10, 2013. Defence counsel had availability on a number of earlier dates (see paragraph 9 of the Pei Affidavit at Tab 2 of the Application Record) but that was the first mutually agreeable date that the trial coordinators office could make available for the continuation. The time frame from October 31, 2012 to April 10, 2013 is 161 days or 5.3 months.

In light of the persistent problems in addressing backlog and overbooking concerns in Brampton as outlined above, the Crown decision to assign this matter fourth in the rank of priority on the first scheduled date and defence availability beginning as early as November 6, 2012 it would be tempting to assign all of the time frame to the continuation date to a combination of Crown and institutional delay. However that is not the whole picture.

Underestimation of Time Required for Trial

This is a drinking and driving prosecution in relation to which there was a motor vehicle accident. There were two civilian witnesses. It was known at the time of the judicial pre-trial that the defence would be submitting a Charter application seeking to exclude the breath readings. Mr. Price is experienced counsel who is well known to be meticulous and thorough. As Assistant Crown Attorney Andersen presciently observed in the course of a preliminary appearance in this case on January 24, 2012 – "given all the trials I've done with Mr. Price, he tends to be extremely thorough, and matters often take longer than a day." Leaving aside the thoroughness of Mr. Price it seems to me that it is time to state the obvious – the trial of an impaired and over 80 prosecution with Charter issues in play, given the substantial jurisprudence and technical issues surrounding the application of the statutory requirements, will almost inevitably consume more than one day of trial time and that inevitability will rise to the level of certainty when a motor vehicle accident and civilian witnesses are involved. In short, the time set aside for the completion of the trial was underestimated by both the Crown and the defence.

On the record before me it is impossible to know to a certainty whether an appropriate estimation of the trial time would have ultimately resulted in less delay. It is logical to conclude that it would have substantially lessened the prospect of needing to secure a continuation date. On that basis the underestimation of the trial time was a contributing factor to the delay in this time frame.

Attribution of Delay

Having weighed the factors influencing the delay from October 31 to April 10, keeping in mind that it was a Crown decision to rank this prosecution fourth on its priority list on October 31, and equally keeping in mind that it was the defence that was in the best position to properly assess the time required for completion of the trial on October 31 I assess one half of the delay as institutional, one quarter as Crown delay and one quarter as defence delay – 80 days institutional and 40 days each to Crown and Defence.

Before leaving this section of the ruling I wish to recognize that the persistent backlog issues that present themselves in this jurisdiction are not amenable to easy or simple solutions and I acknowledge that the ability of the government to address these problems in a meaningful way is constrained by the current fiscal realities. I will say, as well, however that the menu of known or suggested strategies and reduction initiatives has been exhausted and notwithstanding the ingenuity and dedication of those struggling to tame the beast, the barbarians are at the gates. The reasonably foreseeable impending result will be an increasing volume of 11(b) applications and based on the current jurisprudence and guidelines an increasing number of stays. I fear that we may have reached a point where the understanding of society and it's tolerance for trial delay may need to be redefined.

Furthermore, for the sake of those who struggle with this dilemma on a daily basis, I say that we will ignore at our peril the eventual but inevitable human cost associated with a persistent expectation that dedicated individuals will undertake the Sisyphean task of wrestling with this static and apparently unyielding situation on a daily basis.

(e) Other Reasons for Delay

No other reasons for delay were suggested.

(4) Prejudice to the Defendant

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, 2009 SCC 26 at para. 30.

In considering the prejudice suffered by Mr. Tobin, 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.

There has been minimal if any prejudice to Mr. Tobin's liberty interests since he was released from the police station on a promise to appear on the day of the offence.

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."

I am satisfied that Mr. Tobin 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 life.

Mr. Tobin is a 32 year old man. He is single. He has no children. He has never been charged with a criminal offence before. He works in sales. He is presently unemployed but was recently employed in a position that lasted 6 months. 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 license would have on his future and his ability to secure new employment in his chosen field. While these concerns arose when he was charged, it is reasonable to infer that they were exacerbated by the prolonged delay in the completion of his trial. He specifically mentions that his anxiety has affected his ability to sleep and the quality of his relationships with his girlfriend and his parents.

In general, I view the prejudice suffered in waiting for the first trial date as being qualitatively different than the prejudice of waiting for the continuation date. 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. However, when the trial does not start until the afternoon and therefore cannot be completed, it stands to reason that not only do defendants have to wait longer, but they suffer intensified anxiety and stress.

Finally, Mr. Tobin has been exposed to financial prejudice in the form of additional legal fees for the trial continuation date and the 11(b) application. The jurisprudence confirms that this is a recognized element of prejudice that likely also contributes to the anxiety and stress outlined above.

In his affidavit, Mr. Tobin infers prejudice to his ability to make full answer and defence. He stated that he intends to testify and counsel suggests that his ability to remember some details of the events in question may have deteriorated as time has gone by. Courts have long recognized 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.

On the record before me, I find that Mr. Tobin has suffered some prejudice that goes beyond the usual and ordinary anxiety arising from being subject to criminal prosecution 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 a timely conclusion.

Balancing the Individual and Societal Interests

In this case, the overall delay is 17 months. Of this total time, there are approximately 4.25 months of neutral time, 7.75 months of institutional delay to the first scheduled trial date, and an additional 2.66 months of institutional delay, 1.33 months of Crown delay and 1.33 months of defence delay to the continuation date. The resulting Crown and institutional delay amounts to 11.74 months.

I am mindful that the fact that there was an accident involved in which injuries were sustained – back soreness persisting for one month - elevates the societal interest in seeing the matter concluded on its merits. I have taken this into account in the balancing exercise.

The institutional Crown delay in this case exceeds the guideline of 8-10 months established for provincial court trials in Morin by a margin of almost 2 months and the guideline established in Meisner for provincial court trials in Peel by almost 3 months.

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.

In light of the overall delay of 17 months and the institutional and Crown delay of close to 12 months in a straightforward though not perhaps uncomplicated drinking and driving case and my finding that Mr. Tobin has suffered both actual and inferred prejudice, I am satisfied that the balance is tipped in favour of Tobin's individual Charter right to trial within a reasonable time and he has demonstrated on a balance of probabilities that his section 11(b) rights have been infringed. The delay in this case, for a number of reasons, was unreasonable. The only remedy is to stay the charges.

Released: April 10, 2013

Signed: "Justice G. S. Gage"