Court File and Parties

Court File No.: Regional Municipality of Durham: 998 12 11206

Date: 2013-06-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ghansham Singh

Before: Justice J. De Filippis

Heard on: May 3, 2013

Reasons for Judgment released on: June 7, 2013

Counsel:

Mr. M. Gillen for the Crown

Mr. R. Diniz for the Defendant

Reasons for Judgment

De Filippis J.:

[1] On March 3, 2012, the defendant was charged with two offences: operating a motor vehicle while his ability to do so was impaired by alcohol and failure to comply with a demand to provide breath samples. The trial commenced on December 14, 2012, but was not completed. It is scheduled to continue on August 1, 2013. On May 3, 2013, this motion was heard; the defendant seeks a stay of proceedings because his right to a trial within a reasonable time has been violated. For the reasons that follow, I dismiss this motion and direct that the trial proceed as scheduled.

Procedural History

[2] The relevant history of the proceedings is set out below. There are two blocks of time to consider: from arrest to the first trial date (about nine months) and from the trial commencement to the trial continuation date (about eight months):

• March 3, 2012: The defendant is arrested;
• March 23, 2012: Disclosure is received by the Defence;
• April 12-13, 2012: Correspondence is exchanged between the parties about a disclosure issue;
• April 20, 2012: The disclosure issue is resolved;
• May 11, 2012: A trial date is set for December 14, 2012. It is estimated to last four hours. An earlier date, November 9, 2012, was offered by the Court and available to the Crown, but not to the Defence;
• December 14, 2012: Trial commences at 12:30 PM. It is transferred into my court from another one after the cases on my docket resolved ahead of schedule. This trial is not completed by 4:30 PM. A date to continue it is arranged by the parties with the Trial Coordinator;
• August 1, 2013: Trial scheduled to continue. It is estimated to last three hours. Defence is not available from January to April 2013.

Legal Framework: Section 11(b) of the Charter

[3] Section 11(b) of the Charter provides that "any person charged with an offence has the right … to be tried within a reasonable time." In R. v. Morin, [1992] S.C.J. No. 25, the majority of the Supreme Court of Canada held that while society itself has an interest in s. 11(b), the primary purpose of the provision is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speaking for the majority, Justice Sopinka (at para 28):

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

[4] Morin makes clear that section 11(b) is not to be approached "by the application of a mathematical or administrative formula but rather by 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." Some delay is inevitable. The question is when is it unreasonable? That question is to be answered in light of the following (Morin, para 31):

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

Application to This Case

[5] By the time this trial is scheduled to resume, 17 months will have passed from the day the defendant was arrested. Such a period of delay warrants an inquiry by the Court. There has not been an express waiver of delay by the defendant. The issues, therefore, are the reasons for delay and prejudice.

[6] Defence counsel suggests that three months be treated as inherent delay; that is, the two-month intake period between March 3 to May 11 and one month to account for the inferred preparation time required in a case of this kind. One month defence delay is conceded because counsel was not available on the first offered trial date (November 9, 2012). Defence counsel argues that the remainder—almost 13 months—is institutional or Crown delay. In this regard, it is submitted that the unavailability of Defence counsel in the first four months leading up to the trial continuation date is irrelevant. This is based on the proposition that had the trial started on time on the first trial date—that is, at 9:30 AM—it would have been completed that day. The fact that it did not is due to the Crown's decision to give priority to other matters on the docket. Counsel argues that the ruling of the Court of Appeal in R. v. Tran, 2012 ONCA 18 with respect to trial continuations is not applicable because the original trial estimate was reasonable and the Defence is not responsible for the trial not being completed as originally scheduled.

[7] The Crown agrees with the characterization of the first two months as the intake period but suggests that the inferred preparation time for both parties is two to three months. Counsel also argues that the Defence delay is the five months Defence counsel was unavailable for trial; that is, the one month prior to the first trial date and the first four months leading up to the continuation date. On this basis, the Crown asserts that the total institutional delay is six to seven months.

Trial Scheduling Procedures in Durham Region

[8] To help explain the conclusion I have reached, it is necessary to describe how trial dates are set in the Ontario Court of Justice in Durham Region. All cases estimated to last more than one day and all cases in which the defendant is self-represented (regardless of the estimated length of trial) are subject to a judicial pre-trial. Judicial pre-trials with counsel are held in a retiring room or chambers. Those with a self-represented defendant are held on the record but in camera. The judge at this hearing will determine if the case can be resolved without trial and, if not, estimate the length of trial. The estimate is made with the assistance of counsel after canvassing the issues, including Charter motions. This information is recorded on the "Orange Sheet"—a standard form developed locally.[1] That form also includes a section for the Trial Coordinator in which she notes the dates offered by the Court to accommodate the estimated length of proceeding, the availability of Crown and Defence counsel, and whether she has been advised that section 11(b) is an issue. For cases estimated to last less than one day and in which the defendant has retained counsel, there may be a Crown pre-trial but there is no judicial pre-trial. In such cases, Crown and Defence counsel estimate the number of hours required for trial and a date is provided to them by the Trial Coordinator. The latter uses the "Green Sheet" to record this task. This locally developed standard form sets out the time estimate for trial, the date(s) trial offered by the Court, the availability of Crown and Defence counsel, and whether section 11(b) is an issue. The Orange and Green Sheets are attached to the Information.

[9] This case was set down for trial without a judicial pre-trial because the parties estimated the hearing to last less than one day. The Information and Green Sheet both show that on May 11, 2012, a four-hour trial was fixed for December 14, 2012. The Green Sheet also shows that the Court had offered an earlier date, November 9, but that Defence counsel was not available. Again, the notation "11b Issues – Yes [] No []" is not marked.

[10] The Information and a second Green Sheet show that on December 14, 2012, a three-hour trial continuation was fixed for August 1, 2013. The Green Sheet also reveals that Defence counsel was not available from January to April 2013. The notation "11b Issues – Yes [] No []" is not marked.

Analysis of Trial Continuation Issues

[11] This motion to stay proceedings is ultimately grounded in the failure to complete the trial on the date originally scheduled. This issue was addressed by the Court of Appeal for Ontario in Tran, supra:

56 The following comments from para. 27 of R. v. Allen, (1996), 110 C.C.C. (3d) 331, are particularly helpful:

When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate: R. v. Hawkins, (1991), 6 O.R. (3d) 724 at 728, aff'd, (1992), 11 O.R. (3d) 64; R. v. Philip, (1993), 80 C.C.C. (3d) 167 at 172-73. The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

57 In this case, in my view, half of the four-month adjournment period should be allocated to the inherent time requirements of the case and half should be allocated to institutional delay.

58 The trial was not completed within the originally allocated time frame plus the better part of an extra day made available by the court because the defence underestimated the trial time by more than a full day. When it became clear that the trial would not finish within the originally estimated time-frame, the court made a full extra day available within three days (September 16, 2010) and offered two additional continuation dates within two weeks (September 30, 2010 and October 1, 2010). Unfortunately, neither of those dates were available to counsel.

59 When it appeared likely that the extra time made available on September 16, 2010 would be insufficient to complete the trial, the Crown made an additional day available (September 28, 2010) by re-prioritizing other cases. Defence counsel had said this day was available only a few days previously but this was no longer the case by September 16, 2010. The court also offered two half days within a month of September 28, 2010 (October 18 and 28, 2010) and another full day within a month after that (November 22, 2010). Defence counsel were unable to make themselves available.

60 Although the number of additional dates offered by the Crown and the court between September 16, 2010 and November 22, 2010 was limited, the challenges involved in rescheduling a case in the Ontario Court of Justice in the Greater Metropolitan Toronto Area once a trial judge has become seized of the matter are not insignificant. Where an additional full day is required, a delay of one to two months is not unreasonable for an out-of-custody matter provided reasonable efforts are made.

[12] The final sentence in paragraph 60 of Tran suggests that if a trial is not completed as scheduled, a continuation of up to one day should be scheduled within one to two months. As matters are presently organized in Durham Region, this presents a significant challenge for the Court; out-of-custody cases are scheduled many months in advance and if not completed in the estimated time, it is difficult to find a full day within 60 days to continue the matter. Moreover, many experienced Defence counsel also book cases months in advance and may experience similar difficulties. In any event, as Tran recognizes, a system of one case per judge is not feasible. In a busy jurisdiction such as this one, courts are routinely overbooked to ensure that resources are efficiently used when trials do not proceed as scheduled—as can happen, for example, due to illness of a witness, counsel, or the judge. Tran also underscores the importance of accurate estimates of trial length.

Court's Analysis of Delay

[13] I accept the Defence calculation of four months with respect to inherent and Defence delay. It does not follow, however, that the remaining 13 months is institutional and/or Crown delay. I say this for two reasons: First, I do not accept the premise upon which the calculation is based. Second, the record for this motion is otherwise inadequate.

[14] The Defence submits that the estimate of the first trial was reasonable and that had it begun at 9:30 AM, it would have been completed on the first trial date. Both statements are incorrect; it is clear from the Information and two Green Sheets that a reasonable estimate of this trial is seven hours and it is obvious that such a matter cannot be completed in one normal court day. The crux of the problem is that the original four-hour trial estimate is wrong. Had this error not been made, this case would have been subject to a judicial pre-trial and the opportunity for a judge to assist in case management. Underestimating trial time also affects the type of docket on which the case will be placed. There will be limited double booking for a trial of one to two days. On the other hand, it is to be expected that a four-hour trial will be placed on a docket with one or more other similarly estimated trials. This accounts for the fact that not all cases will go to trial and/or the need for the Crown to make decisions about priority.

[15] I do not know why this trial was underestimated or anything about the relative priority of the other cases on the same docket. Neither the Crown nor the Defence offered any explanation. The record before me is also silent about why neither party expressed any concern about delay or took any steps to bring this issue to the attention of the Court, directly or through the Trial Coordinator. I do not suggest that the failure of a defendant to express concern necessarily undermines a motion of this kind, but in the circumstances of this case it is important. This observation is especially relevant to the proceedings on December 14, 2012. I am the judge seized with this ongoing trial. Had I been informed that delay was an issue, I could have taken steps to address that concern with the assistance of the Trial Coordinators and Local Administrative Judge. I have done so in the past and earlier continuation dates have been obtained, sometimes by re-arranging my vacation or non-preside days. In this case, given the availability of Defence counsel, the continuation date might have been advanced up to three months.

[16] This motion is brought by the defendant. He must show that the delay and the prejudice suffered justify a stay of proceedings. The unanswered questions and gaps in the record are relevant to the discharge of this onus of proof. He has failed to adequately explain the reasons for the delay and I dismiss the motion accordingly.

[17] If I have placed too high a burden of proof on the Defence, on the record before me, I calculate the institutional delay to be 11 months. This is based on the Defence assessment of inherent delay and the statement in Tran that a delay of one to two months is reasonable for a trial continuation. In all the circumstances, including my findings with respect to prejudice, as set out below, I am not persuaded that this is an appropriate case to stay the charges.

Prejudice Analysis

[18] The defendant deposed that he has suffered due to the stigma and uncertainty caused by criminal proceedings as well as emotional and financial strain because of the delay. In Tran at para 23 and 63, it was noted that:

One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights under the Charter to security of the person, liberty and a fair trial. An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights. Prejudice may be inferred where the delay between arrest and trial is simply too long.

The Morin guideline for delay in the Ontario Court of Justice is eight to ten months. However, the guideline is just that: a guideline, not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice.

[19] I do not doubt the defendant has experienced stress and strain because of these charges. I accept these symptoms have been aggravated by delay. However, I find that the delay has not otherwise prejudiced the defendant's rights as guaranteed by section 11(b) of the Charter.

Disposition

[20] The motion to stay proceedings because of unreasonable delay is dismissed and the trial will continue as scheduled.

Released: June 7, 2013

Signed: "Justice J. De Filippis"

[1] The Orange Sheet contains case management information only. Resolution discussions are recorded separately and kept by the judge personally or attached to the Information in a sealed envelope.