Court File and Parties
Court File No.: Toronto
Ontario Court of Justice
Between:
Her Majesty the Queen
Ms. C. Tomusiak, for the Crown/Respondent
— And —
Angelo Coulos
Mr. J. Rosenthal, for the Accused/Applicant
Heard: September 19, 2013
Decision
NAKATSURU J.:
[1] Application and Charges
[1] The applicant is charged with impaired driving, driving with a BAC of over 80 milligrams of alcohol in 100 millilitres of blood, and driving while disqualified. He brings an application pursuant to s. 24(1) of the Charter alleging that his right to a trial within a reasonable time under s. 11(b) has been infringed. For the following reasons the application is dismissed.
Analysis
[2] The factors to be considered on an application such as this are set out in the case of R. v. Morin (1992), 71 C.C.C. (3d) 1 at 13 (S.C.C.). These principles have more recently been considered in two binding decisions: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.)
[3] I will now turn to those factors.
A. The Length of the Delay
[4] It is not disputed that the delay in this case warrants examination by the Court.
B. Waiver
[5] Upon review of the record of proceedings and the application record, there have been no explicit waivers of s. 11(b).
C. The Reasons for the Delay
[6] There is no agreement between the parties with respect to the reasons for the delay in the case at bar and how the time periods should be attributed. At this point, I will scrutinize in some detail what happened in the history of the proceedings based upon the record:
Chronology
June 20, 2012: The information was sworn on June 20, 2012. The applicant was released on a promise to appear and an undertaking after his arrest on June 3, 2012.
June 22, 2012: Defence counsel wrote to the Crown asking for full disclosure. This included "any DVDs/videos of the accused at the station or the in car DVD." He further wrote "my client is anxious to move these matters along as fast as is possible and I am hopeful disclosure will be available before then (meaning the first appearance)."
July 16, 2012 (court appearance): Agent appeared for defence counsel. The Crown indicates there was no disclosure yet and suggested two weeks. Matter remanded to July 30th.
July 23, 2012: Defence counsel wrote that he had not been provided disclosure. Again he stated "(m)y client is anxious to move these matters along as fast as is possible and I am hopeful disclosure will be available before the next court date." He advised that he will pick the disclosure up once it was ready.
July 30, 2012 (court appearance): Agent attended. Initial disclosure was given. The agent asked if it was complete and that there should be DVDs for breath, booking, and the in car. The Crown stated they were not here. The Crown suggested three weeks. August 20th was agreed to.
July 31, 2012: Defence counsel wrote they had not yet received any/all DVDs including booking, breath, and in car. He stated "Unfortunately the failure to provide this important disclosure is freezing this case in its tracks. No meaningful pre-trial can be conducted without these materials." He stated once ready he would pick them up.
August 15, 2012: Crown case management coordinator emailed defence and stated the breath and booking was available to be picked up in court on August 20th but the in car DVD had not been yet received by the office and would be made available once it got to office.
August 20, 2012 (court appearance): Agent attended. One DVD was given and it was the breath and booking. The agent stated they were still waiting for the in car DVD, which had not been made available to the Crown. The agent stated they needed to put it over to wait the DVD before this could go forward. The Crown suggested two or three weeks. Three weeks was agreed to, and the matter was remanded to September 10.
August 21, 2012: Defence counsel wrote a letter advising that the in car DVD had not been provided. He stated that the failure to provide this important disclosure was freezing the case in its track. He stated no meaningful pre-trial could be conducted without the disclosure. He stated his client was anxious to move these matters along as fast as possible.
September 10, 2012 (court appearance): Agent appeared. Crown gave a copy of the driving record. The agent stated that the defence was really waiting for the in car DVD and it had been requested a number of times. The Crown stated it was not available today. It looked like it had been requested. Crown couldn't say when a suggested return date should be. Defence stated he was in no better position to estimate and therefore suggested two weeks to which the Crown agreed.
September 12, 2012: The defence wrote another letter again repeating that it could not conduct a meaningful pre-trial without this material. That the lack of disclosure was freezing the case in its track.
September 20, 2012: The Crown's office emailed the defence and stated the in car DVD was provided and it would be given on the 24th.
September 24, 2012 (court appearance): Agent attended and the Crown handed over the in car DVD. Agent asked for October 15th and the Crown agreed.
September 25, 2012: The defence wrote that the sound of the in car DVD went on and off intermittently and asked for another copy with full sound.
October 12, 2012: The Crown's office emailed the defence and stated that the Crown copy goes on and off as well. However, a notice was sent to the OIC about this issue. If the sound worked on the investigative copy, another defence copy would be made.
October 15, 2012 (court appearance): Student appeared for defence. Crown stated that there was outstanding disclosure of the in car DVD since the copy received did not play properly. Three weeks to November 5th was suggested by the Crown.
November 5, 2012 (court appearance): Agent appeared. Crown stated he has some further disclosure. The agent stated that the defence was waiting for the in car DVD. The one provided was defective and the sound went on and off. The Crown stated they requested one on October 15th, but there was no response. The agent asked when they should return. Crown suggested two or three weeks. The defence suggested November 26th and the Crown agreed.
November 6, 2012: The defence wrote a letter again reiterating its position that the outstanding disclosure was important and was freezing the case in its tracks. He stated no meaningful pre-trial could be conducted.
November 19, 2012: The defence wrote the same letter again setting out its position.
November 23, 2012: The Crown wrote back. The officer-in-charge stated that the DVD was as is. That another copy was not likely to be any different than the one previously provided however a second copy had been ordered to ensure that was the case. The second copy would be made available once it came.
November 26, 2012 (court appearance): Agent appeared and stated that no Crown pre-trial had been held on this matter. The form was filled out. The defence asked for December 17th and there would be a pre-trial in the interim.
December 17, 2012 (court appearance): Agent appeared. The Crown stated he left a voice mail to defence counsel in response to a request for a pre-trial. The Crown did not hear back. Crown called again last week and now a pre-trial had been arranged for December 20. Defence requested January 8.
January 8, 2013 (court appearance): Agent appeared and stated a trial date of one and a half days had been set. The verification form was provided. The Crown stated that she has a further disclosure to provide which was the DVD. The agent stated they asked for the earliest dates. They were given November 12 and 14, 2013. Agent stated that the defence did not waive s. 11(b) and that defence counsel had many dates available, as early as February 20th.
November 12, 2013: This will be the first day of the trial.
[7] The Crown and defence do not agree with respect to what should be intake or neutral and what should be Crown delay. The applicant argues that Crown and institutional delay amounts to some 15 months and 3 days or 13 months and 19 days. The Crown responds that the operative delay is only 8 months and 20 days of institutional delay.
[8] In assessing their positions, let me say that there is considerable difference between the parties in the length of time that each says should be attributed to initial intake. The Crown attributes all the time from the swearing of the information to the setting of the trial date to neutral intake. The defence only attributes from the time of the arrest to the first appearance on July 16th, 2012, to neutral intake. The rest of the time to December 17th, he attributes to Crown delay.
[9] In my opinion, neither party is correct.
[10] With respect to neutral intake, the period of delay commences with the swearing of the information on June 20, 2012, and not the date of the arrest. The law is well-established on this point and I cannot revisit this given the binding authorities.
[11] Secondly, I will reaffirm comments I made in R. v. Shea, [2012] O.J. No. 2489 at para. 12:
In my view, to the extent possible, a s. 11(b) analysis should avoid arbitrary allocations of time. The actual history of the proceedings should be closely scrutinized from the transcripts and other evidence filed on the application to best determine how time periods should be characterized. In other words, the assessment should be based upon on-the-ground reality. To illustrate, the actual length of the initial intake period will depend upon the return date(s) requested by the defence; a date often chosen to convenience defence counsel when he/she is next in the courthouse. Thus, frequently, there is quite a variable range for intake periods for similar cases. Of course, if the delay is so long that it becomes unreasonable to describe it as intake, a period of delay may be attributed to the actions of the parties.
[12] I agree that this case does not appear particularly complicated. Neither party has presented any materials with respect to what the facts are. I can only go by the record but it appears to me that this case is a standard impaired driving case although there appears to be a past driving record that is relevant.
[13] I am aware that every effort should be made to ensure that the initial disclosure package is ready by the time of the first appearance. That is a laudable goal. In this case, a period of just under one month from the swearing of the information to the first appearance passed. The disclosure was not ready. While this is a worthy goal, I disagree with the defence that the s. 11b analysis should be measured solely by such goals and objectives. In my experience, it is not uncommon for disclosure not to be ready on the first appearance. The record of proceedings supports this. The appearance on July 16th was brief and cordial; nothing seemed out of the ordinary when the Crown indicated the disclosure was not ready.
[14] On July 30th, initial disclosure was provided but no DVD's were disclosed. Again, keeping in mind the nature of intake and this jurisdiction, something that has been commented upon in various authorities, the fact that disclosure was not fully complete and another adjournment was required does not, in my view, mean that any further delay was the fault of the Crown. Again, the period of time we are dealing with is one month and 10 days from the swearing of the information. Initial disclosure was provided. DVD's are a different type of disclosure from paper disclosure; there are additional steps required to properly copy, vet, and disclose them. Finally, one must remember that this case does not stand alone in the intake process. It is but one of many and the fact that disclosure does not go seamlessly, is but a reality in the Ontario Court of Justice.
[15] On August 20, the breath and booking DVD was disclosed but the in car DVD was not disclosed. At this point in time, in my view, something more should have occurred.
[16] In this case, I am of the view, that initial neutral intake should end by August 20th. I say this because the defence had from the very beginning asked for the in car DVD, advised the Crown that the accused was anxious to get this matter on quickly, and that he could not proceed without it. This was done even before the first appearance. This was repeated by letter on July 23 and 31. Given the defence actions, the neutral intake period is limited to August 20th. In other words, the Crown was alerted by the defence that it was insisting on this disclosure and telling the Crown that this must be given priority. No explanation is given by the Crown for why disclosure was not complete by August 20th on this application, nor does it arise from my review of the transcript or record.
[17] Thus, from June 20 to August 20, 2012, a period of 2 months, this will be treated as neutral intake. I note that this is in keeping with some of the general comments made by other courts such as in the case of Lahiry. I make this finding fully appreciative of the fact that the 2 month intake period generally includes all steps required before the parties are ready to set a date for trial. In this case, the Crown pre-trial had not yet been conducted and the defence had not reviewed the full disclosure. What I am saying is that given what transpired in this case, it was some other factor other than the usual steps taken during the intake period that caused the delay.
[18] Secondly, I also appreciate that although the s. 11(b) clock starts to tick only after the swearing of the information, the police had from June 3rd to prepare the disclosure materials. That being said, there are administrative procedures that are required within the system that require the existence of the charge or information. This is a matter of common sense and experience.
[19] From August 20th to September 24th, this delay occurred as the Crown attempted to get a copy of the in car DVD. The Crown argues that the defence cannot refuse to take the next step in the proceeding by insisting upon every item of disclosure. It is submitted that the defence should have set a Crown pre-trial rather than insisting on receiving the in car DVD: see R. v. Lahiry, supra, at paragraphs 109 to 111. The defence submits that it was fully entitled to resist setting a Crown pre-trial without this piece of disclosure.
[20] While the DVD was not made an exhibit on this application, the parties have agreed to a general outline of its contents. The video captures albeit with some sound issues, the stop, arrest, demand, and transport of the accused. In other words, unlike some other in car DVD, it captures very relevant evidence.
[21] The Crown submits that the defence already had the police officer's notes and the accused as a source to what transpired. However, in my opinion, the in car DVD is an invaluable source of information and evidence without parallel in terms of potential probative value. Sometimes, if it includes some evidence of the driving, the DVD can be evidence of the impaired driving itself. Evidence of the accused's behaviour and demeanour can also be direct evidence of impairment. Then there are the issues relating to the demand and whether the constitutional obligations of the police were properly complied with in the case. It is common knowledge that cases involving this type of offence often revolve around the resolution of a constitutional challenge. The in car video can be highly probative evidence of this. Thus, although there may be other sources of information, frankly speaking, they cannot compete with the in car video. Finally, even if the in car video shows little of consequence, this knowledge may be very useful to the defence.
[22] The Crown submits that given that the trial would be conducted in the Ontario Court of Justice, no election as to mode of trial was required. Therefore, this disclosure was not required for this preliminary step to be taken. This stance ignores the fact that this information is important to the accused in determining how he or she should plead and whether to raise constitutional challenges. The latter issue in turn affects the time estimate for a trial. All these factors support the defence contention that this information is required before the accused is called upon to set a date for trial.
[23] I adopt the comments of Trotter J. in R. v. Farry, [2010] O.J. No. 1977 (S.C.J.) at paragraph 12 where he had the following to say about the breathalyzer video and find it applicable to the in car video:
While I recognize that it is not always appropriate to wait for every last piece of disclosure to be made before setting a trial date, a recording of what takes place in the breathalyzer room can be of great value, to both the Crown and the defence. When this type of evidence is available for viewing, informed decisions may be made about whether the case will proceed to a trial on the merits, or whether it might be resolved by way of a plea or withdrawal. It is important that this evidence be available at the earliest opportunity.
[24] In this case, I recognize that the accused was resisting even going to a Crown pre-trial. This is a step removed from setting a trial date. The question then remains, was this disclosure necessary before setting a Crown pre-trial? In my view, the answer depends on the facts of the case. In some cases, the defence may not require the in car DVD to conduct a Crown pre-trial; it may already know the stance it will take with respect to the plea and/or issues at trial. The DVD would merely be another piece of evidence. In other cases, the DVD may be a critical piece of evidence before the defence can make an informed decision as to whether it should seriously engage in resolution discussions with the Crown at the pre-trial.
[25] Further, in some cases, there will be a judicial pre-trial set. In this case, there was no judicial pre-trial conducted. There does not appear to be a set practice in this jurisdiction, unlike others, to have them conducted for impaired driving cases. This being the case, the Crown pre-trial loomed larger. It was the forum for which all issues that might pose a problem to setting a trial date needed to be discussed. This included estimating time to be set aside for a trial that might include Charter challenges. While it is common that blended trials are conducted, it will not always be the case the time estimates will remain the same for trials with or without such constitutional issues.
[26] In this case, the defence requested the in car DVD from the very beginning. With diligence, it repeated this request on several occasions. When it was not received, the defence took the position that the Crown pre-trial would be meaningless without it. The defence never wavered from this stance. The Crown did not object at the time to this position and appeared, until this application was brought, to acquiesce to this position. A trial date has been set aside and a day and a half for trial has been estimated. Nothing more specific has been provided to me by the Crown either by way of evidence or submission as to why the in car DVD was not particularly probative in this case. In my opinion, given the record before me, I conclude that in this case, it was reasonable for the defence not to conduct a Crown pre-trial without the in car DVD disclosed.
[27] Thus, given that there is no explanation as to why this item of disclosure was delayed beyond August 20th, I conclude that from August 20th to September 24th, this should be treated as Crown delay due to delayed disclosure. This is a period of 1 month 4 days.
[28] From September 24th to October 15th, the defence requested this adjournment in order to look at the in car DVD. Usually, a defence request to review disclosure is treated as neutral. This is normally a function of the intake period or an inherent part of the trial process when disclosure is received and the defence reviews it. In this case, the defence chose the return date of three weeks. It did not choose a lesser period of time although it could have given the nature of the in car DVD. Such an item of disclosure should not take that much time to review and digest, especially since the defence was already in possession of the other disclosure. However, I am prepared to treat it as a part of Crown delay. While it is a defence request, this delay was not the fault of the defence. Had they received the DVD earlier, the delay would not be required. Although I believe I am being generous given that three weeks to review an in car DVD is a rather lengthy delay, in the context of how things unfolded, I will treat this three week period as Crown delay as well.
[29] From October 15 to November 26, the defence wanted to know if the DVD was defective. It is here that the defence position cannot be truly understood; that is, the position to refuse to go to a Crown pre-trial. By now, the defence had received a copy of the DVD. But the audio appeared defective with the sound going in and out. Given the Crown admission on this application, I appreciate that the sound went out at a not so insignificant portion of the interaction between the police and the accused. However, I cannot see simply based upon this why a Crown pre-trial could not be conducted. I agree with the Crown that by now the defence had the officer's notes, the same in car video that the Crown said it had, and obviously, the defence would know the accused's version of what transpired. This in car video, although not wholly audible, still had the video, some audio, and was now in the defence possession. While the defence inquiry whether the video was poorly copied or was defective in its original format had to fully answered before trial, I cannot see why it should have interfered with the conduct of a Crown pre-trial. I note that had one been conducted, hopefully, it would have been soon realized that the police investigative DVD was the same. The officer-in-charge could have been called to the pre-trial to determine if indeed the police copy was the same. These sorts of things are routinely dealt with at a Crown pre-trial. In my view it should not be an impediment in setting one. Indeed, in many cases, they are not an impediment in setting a trial date which will be many months hence. I see nothing in the record why this case should be treated differently. There was no necessity to "freeze the case in its tracks" for this by this stage.
[30] At the same time, the Crown was tardy in getting a response to the defence request. I say this because it should not have taken this length of time to get such a response. Two court appearances went by. That said, I cannot simply say that this period of time should be treated as Crown delay. In part this is so because it was not as if nothing was done by the Crown or nothing was communicated to the defence. The Crown did state that its copy was equally defective even before the defence took the position it could not conduct a meaningful pre-trial. While efforts were going on to see if the police copy was defective as well, in my opinion, the lay of the land was sufficient for a Crown pre-trial to be held and completed. I find that the primary cause of the delay is the defence refusal to conduct a pre-trial. As I have stated above, had the pre-trial been conducted, the dynamics of such a meeting was far more likely in getting an adequate response to the defence inquiry than through the disclosure process with the Crown disclosure coordinator or during a brief appearance with a Crown in a busy set-date court.
[31] I further appreciate that the Crown did not take a different view on the court appearances when the in car DVD was still outstanding. The Crown appeared content to adjourn the case and not insist on a Crown pre-trial. However, the Crown position taken at the time, while relevant, does not bind my assessment of the attribution of the delay period any more than Crown concessions on the actual hearing of the s. 11(b) application. By this juncture, further steps should have been taken in getting this case moving forward.
[32] Let me emphasize, the defence throughout the history of this case assiduously made its position known and acted diligently in what it felt was in the best interests of the accused. At no time do I find that the defence was deliberately trying to delay the case. Further, as judges have consistently noted, this is not about attributing blame or criticism to one or the other party. Rather, simply put, the decision to await the answer as to whether there was a better copy of the DVD rather than moving to a Crown pre-trial, on a s. 11(b) calculus, was the primary reason for the delay. The other part rests with the Crown in not getting an answer back quicker.
[33] I will treat this delay neutrally. Both parties were responsible for the delay. In essence, it was an inquiry about disclosure given to the defence. Such inquiries are not uncommon and are inherent in the trial process. However, it was not in all the circumstances, of a nature that required the case to come to a halt before taking the next step of a Crown pre-trial. It is not per se intake but nor should it be attributable to one or the other party. Therefore this period of 1 month 11 days will be treated neutrally.
[34] From November 26 to January 8, this period of time should be treated neutrally. This was the time required for the Crown pre-trial to be conducted. The authorities are consistent that delay to conduct a Crown pre-trial should be considered neutral. There does appear to be a delay in setting up the pre-trial. However, from the transcript, the Crown indicates in the court appearance of December 17th that he had called earlier and left a voicemail but received no response. An affidavit provided by the defence relying on a hearsay statement from defence counsel avers no earlier call was received. I am not sure why a pre-trial was not held earlier. Given the state of the evidence, I am not in any position to prefer one version of events over the other. In any event, both parties appeared content with the fact that on December 20th a pre-trial was to be conducted. There is nothing in the evidence that leads me to conclude that this period of delay was the fault of any of the parties. Therefore, I will consider it neutral given it was for the conduct of a Crown pre-trial. There is no need to further parse responsibility for this delay: see R. v. Ignagni, 2013 ONSC 5030, [2013] O.J. No. 3531 (S.C.J.) at para. 38. This is a period of 1 month 13 days.
[35] From January 8 to February 20th, this is neutral time given it is the time required for the defence to be prepared and available for trial. The decisions of Lahiry and Tran mandate that some time be attributed to the need for the defence to prepare for trial. The defence submitted I should follow the insightful analysis of Nordheimer J. in R. v. Sikorski, 2013 ONSC 1714, [2013] O.J. No. 1654 (S.C.J.). Regardless of how I may view that analysis, I am bound by the Ontario Court of Appeal's judgment in Tran. I have been presented with evidence on this issue both in the record and at the set date appearance on January 8th. I am satisfied given the record and the nature of this case that this period of 1 month 12 days is adequate for the defence to prepare and be ready and available for trial.
[36] From February 20, 2013, to November 12, 2013, the date the defence was ready and prepared for trial and the first day of trial, this is institutional delay. This is a period of 8 months 20 days.
Summary of Delay Attribution
- Intake/neutral delay: 6 months 6 days
- Crown delay: 1 month 25 days
- Institutional delay: 8 months 20 days
[37] Thus, the total operative delay (Crown and institutional delay) in this case is 10 months 15 days. This is approximately 15 days beyond the guidelines set out in Morin.
[38] I have two further observations on the delay. First of all, as noted in R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321 (Ont. C.A.) at para. 46, the Crown did very little to push this case forward or to prioritize it. The Crown did not suggest that the defence should conduct a pre-trial, did not ask a court's assistance in moving the case forward, and did not assist in getting more timely responses from the police.
[39] Secondly, I agree that Crown delay is viewed more seriously in the s. 11(b) analysis than systemic delay: see R. v. Taylor, [2013] O.J. No. 1266 (C.J.) at para. 39.
[40] Despite these two factors, this must be measured against the fact that I am dealing with a Crown delay of 1 month and 25 days; in the context of overall operative delay that is half a month beyond the upper limit of the guidelines.
D. Prejudice
[41] Both inferred prejudice and actual prejudice are considerations in the assessment of prejudice. In addition to inferred prejudice, the parties can present evidence of actual prejudice or evidence negating prejudice. As stated in Morin, at paras. 63-64:
Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adopted by Lamer J. in Mills, supra, at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence.
Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated. The application of any guideline will be influenced by this factor.
[42] In this case, I find that there is no actual prejudice to the fair trial interests of the applicant. No meaningful evidence was presented on this. There is the barest of suggestions in the applicant's affidavit that his memory is not as good now as it was back in June of 2012. There is nothing specific or concrete about how that may impair his fair trial interests. Further, on cross-examination, the applicant conceded that he discussed his version of the case with his defence counsel early on while his memory obviously would have been fresher.
[43] I further find that there is no actual prejudice to the applicant's security of the person. In assessing this prejudice, it is only prejudice resulting from the delay that is considered. Forms of prejudice resulting from the fact of being charged are not relevant in the analysis: see R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (Ont. C.A.) at para. 33.
[44] The applicant in his affidavit averred that he has been extremely stressed and his condition worsened over time. He states not a day goes by without him worrying about the matter. That he had significant problems sleeping such that he has had to take over the counter sleep medication to help him. He has had problems concentrating and has not been as productive at work.
[45] Cross-examination revealed that in the main, these forms of prejudice arose from the fact he had been charged rather than the delay. He admitted his worrying started soon after being charged. He started his medication a year ago. However, he has never sought medical help as he believed he could deal with it. He has not escalated his medication for sleep over time. He has not taken prescription sleep medication. He has not seen a physician for his stress or sleep issues. At work, he has taken less responsibility but on re-examination, he revealed this change in his work took place soon after the charge. Whatever anxiety or distress he is suffering from, it seems clear that it arises from the fact he has been charged and it has not significantly worsened given the passage of time.
[46] Furthermore, the actual prejudice complained of is not that significant. While I do not want to appear insensitive to that anxiety, the fact of the matter is that the applicant remains fully employed in a good job with a long-time employer who is accommodating to his needs. Although he is worried and stressed, he is able to work, sleep with only the help of non-prescription medication, and has never been that bad that he has had to seek any form of professional help. He gives no other concrete example of how that stress and anxiety has affected his personal, work, or family life. It is uncorroborated by any other affidavit or person. He has never had to make a court appearance until this application having counsel or agent always appear by way of designation.
[47] There is then the issue of any prejudice to his liberty. Because the applicant has a prior criminal conviction for impaired driving a few months prior to this charge, he was released on a promise to appear with an undertaking. Two conditions of that undertaking to the police were that he not consume alcohol and not be in the front driver's seat of a motor vehicle.
[48] These conditions were not mentioned by the applicant in his affidavit. Neither in his affidavit nor in his testimony did he complain about how these conditions have restricted or affected his liberty. In cross he revealed the existence of these conditions but agreed that with respect to the restriction on operating a motor vehicle, given his earlier conviction, he was prohibited in any event from driving for about six months while he was on this undertaking. I know nothing about whether or not, after that time, the applicant was properly qualified or able to drive. With respect to the non-consumption of alcohol, this is a minor restriction. The applicant said nothing about any adverse effect of the restrictions. I finally note that, despite the fact that defence counsel wrote many letters to the Crown, at no point did he ever raise an objection to either of these conditions in the undertaking. In light of these circumstances, I find that the applicant has not proven any meaningful prejudice to his liberty interest.
[49] Thus, I find no actual prejudice proven by the applicant.
[50] Furthermore, I am not prepared to infer prejudice in this case. Here, the operative delay falls a half-month outside of the guidelines. This is not such a long and unreasonable delay that I would find that prejudice should be inferred. As noted, I have found no actual prejudice sufficient in my view to lower the guidelines.
E. Balancing Societal Interests and Conclusion
[51] These offences are serious. I need not repeat the numerous comments made by various jurists about the dangers of drinking and driving. In addition if he is convicted on the charges before the court, the applicant would be a repeat offender who was driving under the influence while he was prohibited. Society has an interest in seeing serious charges tried on the merits. As the seriousness of the offences increases, the societal interest in seeing the charges brought to trial increases: see R. v. Kovacs-Tatar, supra, at para. 58; R. v. Steele (2012), 2012 ONCA 383, 288 C.C.C. (3d) 255 (Ont. C.A.) at para. 31.
[52] At the same time, I recognize that seriousness of the offence should also cause the Crown to properly give such a case the attention that it deserves: see Taylor, supra, at paras. 45 to 46.
[53] I have found that there has been some Crown delay; such delay weighs more heavily and belies the Crown obligation to take serious cases seriously. That being said, it must be put into context. The amount of Crown delay was under 2 months. This was in a case where the systemic delay was within the range of the Morin guidelines. This was also in a case where the defence took a position after receiving the in car DVD that contributed to the overall delay. Finally, this delay took place in a case where I have found no actual or inferred prejudice. In undertaking this balancing, I find that societal interests in having this case tried on its merits favours the dismissal of the application.
[54] Essentially, this application is about an impaired driving case going through the system here at Old City Hall. The institutional delay in setting the trial date was acceptable and within the guidelines. The problem occurred in the process of getting to that point where the parties were ready and willing to set a trial date. The problems arose due to a delay in Crown disclosure and the defence unwillingness to set a Crown pre-trial by insisting that all of their disclosure concerns be satisfactorily addressed before moving forward. Again, I fully appreciate that the defence assiduously followed the progress of the disclosure and did not simply sit back. While the Crown delay was not acceptable and weighs heavily in the analysis, in the end, it amounted to only a portion of the overall operative delay which was only days beyond the guideline. Such a delay in a case where I have found no significant actual prejudice or inferred prejudice caused by the delay, after due consideration of all the factors informing a s. 11(b) analysis, does not discharge the onus in proving the violation. Consequently, the application is dismissed.
[55] I would like to thank both counsel for their careful and helpful presentation of the issues. It made resolving this difficult application significantly easier.
Released: September 27, 2013
Signed: Nakatsuru J.