Court Information

Ontario Court of Justice

Date: 2013-08-09

Court File No.: Toronto 4817 998 12 70018541

Parties

Between:

Her Majesty the Queen

— And —

Pasquale Lore

Before the Court

Justice: W. B. Horkins

Heard on: July 22, 2013

Ruling on: An Application to Stay Proceedings

Released on: August 09, 2013

Counsel

Robert Levan — counsel for the Crown

Adam Little — counsel for the defendant Pasquale Lore

Decision

W. B. HORKINS J.:

[1] Introduction to the Application

Mr. Lore stands charged with impaired driving and driving "over 80". On the date scheduled for trial this case will be almost 15 months old. The accused has applied for a Judicial Stay of the proceedings, asserting an infringement of his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees him a trial within a reasonable time.

For the reasons that follow the application is granted.

I. INTRODUCTION

Mr. Lore was arrested on July 17, 2012, and charged with these drinking and driving offences. The allegations are very straight forward. The accused was pulled over for speeding; some indicia of alcohol impairment were observed; the accused admitted to having had "a few beers"; he was arrested and taken in for breath testing. The tests indicated a very high blood alcohol level, in the range of 220 milligram percent; a level approaching three times the legal limit.

II. APPLICABLE PRINCIPLES

As to the applicable principles of law, I have instructed myself by referring to my own judgment in R. v. Hamilton [2010] O.J. 4407, paragraphs 7 through 27, which I insert here for ease of reference:

The Law

With respect to the law and its application, I have instructed myself in this case in accordance with my own reasons for judgment in the case of R. v. Donaldson, reported at [2010] O.J. No. 72. Taken directly from that judgment are the following paragraphs, 8-27.

Invoking Section 11(b) of The Canadian Charter of Rights and Freedoms stipulates that, "any person charged with an offence has the right to be tried within a reasonable time".

On its face, this would seem to be a simple objective. Yet the failure of the criminal justice system to deliver consistently on this promise has generated more litigation than any other provision in The Canadian Charter of Rights and Freedoms. The seemingly perpetual lack of adequate resourcing, across the board, in the criminal justice system in this province is without doubt the principal reason for this failure.

At the outset of the analysis of this issue I caution myself that, as tempting as it may be for the Court to vent on the sorry state of the case management systems in this jurisdiction, this application is not the appropriate forum for "critiquing the system". To do so risks the undignified appearance of the Court descending into some sort of judicial labour grievance. As the Court of Appeal noted recently in overturning a judicial stay in Schertzer, 2009 ONCA 742, and "s. 11(b) is not the medium through which the quality of the prosecution's performance is measured. Section 11(b) focuses exclusively on delay and the causes of that delay..."

I take the point of this comment to be a reminder that the s. 11(b) analysis is case specific and that the issue is delay itself and not determining culpability for the underlying causes of that delay. The task of the Court is to identify the various operative factors in the particular case that have created delay and then judicially balance the competing interests that s. 11(b) seeks to protect. As Chief Justice McLachlin wrote in her reasons in Morin (1992), 71 C.C.C. (3d) 1, "... simply listing factors does not resolve the dilemma of a trial judge faced with an application for a stay on grounds of delay. What is important is how those factors interact and what weight is to be accorded to them."

At the outset of this exercise it is also worth bearing in mind the caution voiced by Justice Cromwell in Godin, 2009 SCC 26, that the 11(b) framework of analysis "often leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaged in this detailed analysis."

Section 11(b) of The Canadian Charter of Rights and Freedoms seeks to protect both the individual rights of an accused and also the collective public interest. These are often naturally opposing interests in the criminal justice system: the individual rights of an accused and the competing broader societal interests of the community.

The constitutionally protected individual rights which section 11(b) seeks to ensure have essentially three aspects:

1. The right to security of the person by minimizing the anxiety and stigma of criminal proceedings;

2. The accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and

3. The accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.

See R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.).

Section 11(b) also seeks to protect two societal rights:

1. The public's interest in having our laws enforced with some certainty by having those accused of crime brought to justice swiftly; and,

2. The public's interest in having those accused of crime dealt with fairly.

See R. v. Qureshi.

Undue delay erodes public confidence in the criminal justice system; The Charter recognizes the truth in the old adage "justice delayed is justice denied".

The Framework of Analysis

To determine whether s. 11(b) has been violated, the Court must consider and balance all of these individual and societal goals in the context of both the quantum of delay and the causes of delay in the particular case. In Morin, the Court set out four factors as the framework for this judicial balancing:

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.

For 11(b) purposes, the history of a case begins with the laying of the charge, or the swearing of the Information, and continues until the completion of the trial or until there is a final resolution.

The history of a typical criminal case will have two major chapters, firstly, the intake period leading up to the assignment of a trial date and, secondly, a period of time simply waiting for the scheduled trial date to arrive. A reasonable intake period is inherent in all cases and so considered neutral time in the 11(b) analysis. Once the intake process is complete, the case is theoretically ready for trial. The backlog of other "ready" cases already set down for trial dictates the waiting time for a trial date. The period of time from the setting of the trial date to the earliest available trial date is systemic or institutional delay.

The Backlog of "Ready" Cases

It is a startling fact that the backlog of cases in the College Park Courthouse consists almost entirely of cases that will never actually proceed to trial. I am the administrative judge in this courthouse and, as such, I know for a fact that, during the material timeframe of this case, every week, not just some weeks, but every week, 90% of the cases forecast to last one day or more collapsed on the trial date. This is the real delay problem in the prosecution of criminal cases in this jurisdiction. I reference this aspect of the backlog problem because it is the context in which this case exists.

Institutional or systemic delay starts to run "when the parties are ready for trial but the system cannot accommodate them" with a trial date. Morin gave as a guideline, a range of 8 to 10 months as acceptable institutional delay. It is certainly arguable that the guidelines of constitutionally tolerable systemic delay as described in Morin are today outdated reference points. The government has had more than a quarter of a century to improve upon the systemic deficiencies that undermine the constitutional rights protected by section 11(b) of the Charter and the situation has only grown worse.

A 9- to 12-month systemic delay created by the backlog is a virtual given for every case set for trial in this courthouse. This puts every case potentially at the outer limits of the Morin guideline. In the present state of affairs then, there remains little, if any, margin for error in the intake phase if a case has any hope of being tried within the constitutionally mandated reasonable timeframe.

The Intake Phase

Every criminal case has certain inherent time requirements, which inevitably lead to some delay. The inherent "intake" time requirement of a case is the time reasonably required to have the case ready to proceed to trial. This "intake" stage of a criminal case includes laying the charge, retention of counsel, applications for bail and other pre-trial procedures. The intake period is an inherent and necessary phase in the life of every criminal prosecution and is neutral in the 11(b) analysis, but only to the extent that it is reasonable.

The availability of adequate institutional resources is assumed when determining what is a constitutionally reasonable intake time and therefore neutral, for a given case.

The Standard for Granting a Stay

Having referenced above the present institutional inadequacies as the context in which this case exists, a note on the standard of constitutional toleration is appropriate; the standard is clearly not one of perfection but rather one of reasonableness. The assessment is not whether the time to trial is optimal but rather whether the delay exceeds what is constitutionally tolerable. The Morin guideline is a marker at the boundary of what is constitutionally permissible.

Although the "only in the clearest of cases" test generally applies to granting the extraordinary remedy of a judicial stay, that test is clearly not appropriate in an 11(b) application. Authority for this is found in R. v. Thompson, [2009] O.J. No. 4586 (Ont. C.A.):

"... For non-section 11(b) Charter breaches, a stay is the remedy of last resort to be reserved for the clearest of cases, the vast majority of which involve prejudice to the right to a fair trial or the right to make full answer and defence. However, a different test applies in the case of a breach of s. 11(b). There, a stay is the "minimal remedy" and it has been held that "[n]o flexibility exists; a stay of proceedings must be ordered": see Rahey v. The Queen, [1987] 1 S.C.R. 588, at p. 615; R. v. Kporwodu (2005), 75 O.R. (3d) 190 (C.A.), at para. 2. Proof of actual prejudice to the rights to a fair trial and to make full answer and defence is not invariably required. The purpose of s. 11(b) is broader."

Attribution of the Intake Period Delays

The attribution of delay in s. 11(b) cases may often seem a rather unscientific and at times, a somewhat arbitrary exercise. The underlying cause of a troublesome pace of a prosecution can often be a mixture of problems arising from a combination of sources. What at the time might have seemed reasonable, with the benefit of hindsight, may now appear to have been an unnecessary waste of time. What to the Court may now seem unreasonable may have made bona fide good sense to counsel in the context of their instructions and a more informed and contemporary understanding of the case. I caution myself accordingly in attributing the sources of the delays in this case.

III. CHRONOLOGY

The history of this proceeding is, as follows:

Date	Event	Elapsed Time
July 7, 2012	Date of Offence: accused arrested and released on "Form 10"; ALS in effect.	0
July 31, 2012	Information Sworn.	+2 wks
August 28, 2012	First appearance. The matter was put over to September 26, 2012.	+6 wks
September 26, 2012	Disclosure incomplete; officer's notes, Intoxilyzer records, etc. – put over to October 17, 2012.	+2 mos
October 17, 2012	Disclosure still incomplete – Crown pursuing it – put over to November 7, 2012.	+3 mos
November 7, 2012	Some further disclosure – notes and Intoxilyzer materials still missing – put over to November 21, 2012.	+3.5 mos
November 21, 2012	Disclosure complete except for essential officer's note – Crown pre-trial to be conducted in any event – put over to December 12, 2012.	+4 mos
December 12, 2012	Trial date set for October 8, 2013 – defence counsel available from December 18, 2013.	+5 mos
July 22, 2013	Section 11(b) Application heard.	+1 yr
October 8, 2013	Trial date – approximately 15 months from the arrest date.	+15 mos

The first issue joined by the parties was when to start counting time, from the date of arrest or from the date the Information was sworn? The law is usually accepted as starting from the date of the Information. Mr. Little makes a very persuasive argument that in cases such as this the starting point ought to be the date of the arrest. The date of the arrest is when this accused is in fact in jeopardy and in fact already suffering sanctions, such as the Automatic License Suspension. It strikes me as artificial to say that the accused is not yet in jeopardy when he leaves the station "charged" with impaired driving. However, the two weeks difference in this case makes insignificant difference in the final analysis, so I will defer to the accepted precedents and count from the date of the Information: July 3, 2012.

The second issue joined is how much of the intake period is neutral? It took five months to complete the simple disclosure in this case. Five months to get one final officer's notes produced. No more than two months is reasonable; so three of the initial five months delay is due to that failure by the police; that delay lies at the feet of the Crown.

The gross time to trial from the setting of the date is ten months. Should this be "netted" by allowing some arbitrary period of time for the parties to be truly ready to proceed? Is that really what Justice Code meant in Lahiry? I don't think so. I read that case as reminding trial judges that these applications must be decided on evidence, on facts, rather than on fictional assumptions. On the facts before me, experienced counsel was prepared to try the case almost immediately. I accept that as a fact. Even if reality dictates that a couple of weeks are needed to gather the witnesses and take care of other logistical issues, the system has still imposed a waiting list on the accused of at least nine months.

The combined institutional and Crown attributable delay is at least 12 months.

IV. PREJUDICE TO THE ACCUSED

For the sake of economy I will again instruct myself from my judgment in Hamilton:

In the 11(b) analysis prejudice to the accused focuses on prejudice arising from delay as opposed to prejudice arising from the fact of the charges themselves. Our Court of Appeal has stressed that the issue of prejudice is an important aspect of the 11(b) analysis. The absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable and an otherwise marginal case may tip either way on this pivotal issue.

The most recent guidance on this issue comes from Justice Cromwell in Godin, where he states:

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 the stress and 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 to raise a defence. See Morin, at pp. 801-3.

The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn". ...

Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.

S. 11(b) recognizes that the impact of the criminal justice process can be dramatic and that the injury to security of the person flowing from a sustained overexposure to the process cannot be minimized. In Mills, Chief Justice Laskin described the constitutionally protected right recognized by s. 11(b) as encompassing, "protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation. ... These include 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. These forms of prejudice cannot be disregarded or minimized when assessing reasonableness of delay." See R. v. Mills (1986), 26 C.C.C. (3d) 481 (S.C.C.)

The accused here put forward very little by way of prejudice beyond the natural stress, anxiety and financial burdens of being charged. He did legitimately claim that those aspects of the process have been significantly amplified by both the passage of time and the dozen or so court appearances required.

While much of this prejudice is initially attributable to the mere fact of the charges, there is no doubt that the passage of time significantly amplified the impact on this accused. The prejudice to the accused from the delay in this case cannot be characterized as extreme but it is far from insignificant.

V. BALANCING THE INTERESTS AT STAKE

I agree with the Crown's submission that the nature of the allegations in this case, drinking and driving, creates a heightened public interest in seeing the allegations proceed to trial on their merits.

This case will be 15 months old at the trial date. The "net" delay for 11(b) purposes is in the range of 12 months. Leaving aside for another day the issue of whether the 8-10 month Morin guideline is now obsolete, the delay here that is attributable to systemic delay and Crown conduct is well in excess of what is constitutionally tolerable.

While there is no significant prejudice to the accused in terms of receiving a fair trial or in terms of having been under restrictive bail conditions, there is clearly significant prejudice to his constitutional right to security of the person in not being overexposed to the ongoing impact of the criminal justice system.

VI. CONCLUSION

Having balanced the competing interests, I find in favour of the accused. The excessive delay in this case overtakes the societal interest of trying this case, in any event. I order that the charges be Stayed.

Again, borrowing from my own comments in Hamilton at paragraph 50:

This Court has a constitutional mandate to stay charges where an accused's protected rights under s. 11(b) are violated. It is the government, not the Courts that decide the priorities in allocating public resources. The predominant reason that criminal cases in this jurisdiction take so long to get to trial is very simply because insufficient resources are made available to deal with them properly. The cost of delivering swift justice is undoubtedly steep. The cost of failing to deliver justice in a constitutionally acceptable manner is that the Courts are forced to terminate prosecutions such as this.

Released: August 9, 2013

Signed: Justice W. B. Horkins

Footnote

[1] R. v. Lahiry 2011 ONSC 6780, [2011] O.J. 5071 SCJ