Court File and Parties

Court File No.: Gore Bay

Date: 2013-10-10

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Catherine Morrison

Before: Justice Randall W. Lalande

Heard on: September 5, 2013

Ruling on Charter Motion released on: October 10, 2013

Counsel:

• Jeremy Schaffer, for the Crown
• P. Berk Keaney, for the accused Catherine Morrison

LALANDE J.:

1: INTRODUCTION

[1] The applicant, Catherine Morrison faces a one count information alleging that on or about the 5th day of August, 2011, she had the care and control of a motor vehicle while her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of her blood contrary to section 253(1)(b) of the Criminal Code of Canada. On September 5th, 2013, Catherine Morrison (the "applicant") applied to have the charge stayed due to violation of her right to be tried within a reasonable time as set out in section 11(b) of the Charter of Rights and Freedoms.

[2] The first trial date was scheduled for November 29, 2012. The appropriate start point in calculating delay is the date on which the information is sworn. The total delay up to the first trial date of November 29th, 2012 was 482 days. Counsel for the defence calculated that there were 184 institutional delay days being that period between May 28th, 2012 (when the date was set) to November 29th, 2012. Counsel for the Crown calculated that there were 94 institutional delay days.

[3] No application alleging a section 11(b) Charter breach was brought because of any delay up to the time of the first trial date. Counsel are ad idem that had the trial proceeded as scheduled on November 29th, 2012 (first trial date), the issue of delay would not have surfaced.

[4] On November 2nd, 2012, the Supreme Court of Canada released the decision of R. v. St-Onge Lamoureux 2012 SCC 57, [2012] 3 S.C.R. 187. The decision essentially held that two of the three tests under section 258(1)(c) of the Criminal Code were unconstitutional. As a result of the St-Onge Lamoureux decision, the applicant chose to ask for an adjournment of the trial date. The motion for adjournment was opposed by the Crown. It was heard and granted by Justice Villeneuve on the eve of trial namely November 28th, 2012.

[5] On December 10th, 2012, two dates were set. The first date was for a motion for disclosure set for August 1st, 2013 (subsequently changed to September 5th, 2013). The second date of November 14th, 2013 was set for trial (one day set aside).

[6] On August 20th, 2013, the disclosure motion was abandoned by the defence because additional disclosure sought was obtained. The date of September 5th, 2013 was retained to argue the 11(b) Charter breach motion.

[7] The delay between December 10th, 2012 and the trial date of November 14th, 2013 is 338 days (or just over 11 months). In the Crown's submission, institutional delay would account for between 141 and 155 days (or just over five months). The defence attributes the entire delay period to the Crown.

[8] Both counsel made submissions on the basis of the case falling into two stages or phases for delay purposes. The first phase being from the time the information was sworn to the first trial date of November 29th, 2012 and the second phase from the setting of the second trial date on December 10th, 2012 (there shall be more comment on this date later in these reasons) to November 14th, 2013.

[9] The applicant submits that the court must firstly look at total delay of 819 days (or approximately 27 months) over two trial dates with the last set for November 14th, 2013. On the issue of having successfully applied to adjourn the first trial date of November 29th, 2012, the applicant argues that she did not have much choice once faced with the St-Onge Lamoureux decision released by the Supreme Court of Canada on November 2nd, 2012. Defence counsel submitted that had parliament got it right in the first place, it would not ultimately have been necessary to adjourn the case because disclosure issues would already have been dealt with. Counsel agree that the total delay meets the threshold for inquiry.

[10] Crown counsel emphasizes that it is the applicant who sought and obtained an adjournment on the eve of trial. The application for adjournment was opposed. The applicant sought to avail herself of possible advantages stemming from the St-Onge Lamoureux decision. Inherent in the Crown's submission is that up to that point the case had proceeded in the normal course without any objectionable delay.

2: RELEVANT PRINCIPLES

[11] The framework for s. 11(b) motions requires the court to analyze four distinct factors: the overall length of delay from the laying of charges until the trial concludes; waiver of any individual time periods; the reasons for the various periods of delay; and prejudice to the particular interests of the accused protected by s. 11(b). See R. v. Smith (1989), 52 C.C.C. (3d) 489; R. v. Askov (1990), 59 C.C.C. (3d) 449; R. v. Morin.

[12] In R. v. Morin, [1992] S.C.J. No. 25 at paras. 26-28, Sopinka J., in delivering the judgment of the majority, stated that the primary purpose of s. 11(b) of the Charter is the protection of the individual rights of accused persons, namely: (1) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings; (2) the right to liberty, which is protected by seeking to minimize exposure to restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, which is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

[13] Additionally, the Court recognized a secondary societal interest. At paras. 29-30 the Court stated:

29 The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 36 C.R. (3d) 73: "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.

30 There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.

[14] The right of an accused under s. 11(b) of the Charter is to be tried within a "reasonable" time. Delay is inevitable in any prosecution but it is only unreasonable delay that gives rise to a Charter remedy. Determining whether the accused's s. 11(b) right has been infringed requires a balancing of the interests referred to by Sopinka J. in Morin (at paras. 28-30). A determination regarding the reasonableness of the delay requires a consideration of the following factors:

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 delay; and
4. prejudice to the accused.

[15] The determination of when delay becomes unreasonable within the meaning of s. 11(b) is not simply a function of the passage of a certain period of time. There is no mathematical or administrative formula that can be applied to all cases (Morin at para. 31). The balancing of interests approach mandated by the Supreme Court means that the availability of a remedy for delay in bringing a case to trial will depend on the particular circumstances of each case.

[16] The inherent time requirements in any given case are properly viewed as "neutral" in a s. 11(b) analysis. They are attributed to neither the Crown nor the defence. Systemic or institutional delay has been defined as that period of delay which "starts to run when the parties are ready for trial but the system cannot accommodate them." Institutional delay does not include the time inherent in getting a case ready to set a trial date.

[17] To provide guidance on the approximate permissible scope of institutional delay, the Supreme Court in Morin set out the following guidelines: eight to ten months in the Ontario Court of Justice and six to eight months in the Superior Court of Justice. These are not limitation periods but rather factors to be weighed in the overall assessment of the reasonableness of the total delay: see R. v. Allen (1996), 110 C.C.C. (3d) 331 at p. 345. The guidelines are not fixed or inflexible. They can be shortened or extended depending on factors that must be considered in a section 11(b) assessment.

[18] The Supreme Court of Canada has consistently rejected the notion of any type of judicially created limitation period or sliding scale of constitutionally acceptable time periods with respect to certain specified offences. Rather, any proper assessment of a s. 11(b) Charter claim requires the court to undertake a flexible and functional approach, balancing many constitutionally relevant factors. Formulaic approaches to s. 11(b) of the Charter must be strictly avoided. See: R. v. Morin, at p. 13.

[19] In assessing the actions of the accused and the Crown under s. 11(b) of the Charter, the Court is not attempting to assign blame to one of the parties for any period of delay. Rather, the Court is simply assessing the factual causes for the various delays. As the Supreme Court of Canada indicated in R. v. Morin, at p. 17, this assessment is simply an attempt, by the Court, to take into account all of the actions "voluntarily undertaken" by either the accused or the Crown which, in fact, caused delay in the proceedings. Once it is determined that the conduct of a particular party has caused a particular delay, then that delay is attributed to, or counted against, that particular party.

3: CHRONOLOGY OF EVENTS

3:1 Phase "A"

3:1:1 August 5, 2011 to August 15, 2011

[20] The accused is charged and the information is sworn. This pre-charge delay is inherent – neutral.

3:1:2 August 15, 2011 to September 26, 2011

[21] The accused is compelled to attend on a first appearance date. This time period is inherent – neutral.

3:1:3 September 26, 2011 to October 31, 2011

[22] The accused attended on a first appearance and requested an adjournment to retain counsel. This time period is inherent – neutral.

3:1:4 October 31, 2011 to November 28, 2011

[23] The accused requested an adjournment to review disclosure. In the meantime a counsel pre-trial was conducted on November 4, 2011. This time period is inherent -- neutral.

3:1:5 November 28, 2011 to December 19, 2011

[24] The matter was adjourned in order to schedule a judicial pre-trial. This time period is inherent – neutral.

3:1:6 December 19, 2011 to January 30, 2012

[25] The matter is adjourned for the purpose of conducting a judicial pre-trial. This time period is inherent – neutral.

3:1:7 January 30, 2012 to February 27, 2012

[26] The matter was again adjourned for the purpose of conducting a judicial pre-trial. This time period is inherent – neutral.

3:1:8 February 27, 2012 to March 5, 2012

[27] Defence counsel wished to confirm a judicial pre-trial date of May 18, 2012. The Crown objected to the length of the adjournment. The court agreed. Defence counsel's agent and the Crown agreed to put the matter over to March 5, 2012 in an effort to secure an earlier date. This time period is inherent – neutral.

3:1:9 March 5, 2012 to March 15, 2012

[28] Defence counsel did not have instructions. The delay may be characterized as defence delay (10 days).

3:1:10 March 15, 2012 to May 28, 2012

[29] The case was again adjourned for a judicial pre-trial which did take place on May 28, 2012. Notwithstanding that the Crown had earlier objected to the delay, this time period is properly characterized as inherent – neutral.

3:1:11 May 28, 2012 to November 28, 2012

[30] The case was scheduled for trial to November 29, 2012. The accused successfully brought a motion to adjourn the trial date on November 28, 2012. The motion to adjourn was brought further to the Supreme Court of Canada releasing the decision of St-Onge Lamoureux on November 2, 2012.

[31] I have reviewed the transcript of proceedings before Justice of the Peace Hayden on May 28, 2012. The transcript is very brief. The court clerk advised the court that "dates were canvassed". The Crown (Ms. Haner) simply indicated "...we have chosen November 29, one day for trial". The delay period between May 28, 2012 and November 28, 2012 is 184 days. Mr. Schaffer suggested that 90 days be categorized as "preparatory delay" on the basis that institutional delay only begins when both parties are "ready for trial". Mr. Schaffer made reference to a transcript later on in the proceedings (June 12, 2013) where Mr. Venturi who was attending on behalf of Mr. Keaney, indicated that the office practice was to not prepare for trial until a trial date was set. Accordingly, he is asking the court to attribute 90 days as "preparatory delay".

[32] The court is mindful that defence counsel had been dealing with the file since October 2011. The transcript provides no insight on the issue of time required for preparation either by the defence or the Crown. It is most reasonable to assume that counsel would require some time to prepare for trial. I assess the inherent preparation time at 60 days. Therefore I attribute 124 days for the period from May 28, 2012 to November 29, 2012 as institutional delay.

[33] In the result and with regard to Phase "A", the reasons for the delay are as follows:

• Defence delay: 10 days
• Inherent time requirements: 348 days
• Institutional delay: 124 days

[34] As discussed, the Morin guideline for delay (subject to adjustment depending on the facts of each case) is eight to ten months. In this case, the period of Crown/Institutional delay for Phase "A" falls well within the guideline.

3:2 Phase "B"

3:2:1 November 28, 2012 to December 10, 2012

[35] On November 28, 2012, Justice Villeneuve granted a motion brought on behalf of Mrs. Morrison to adjourn the trial scheduled for the next day. Mrs. Morrison was not present but a designation had been filed. The matter was put directly over to December 10, 2012 for the purpose of setting a date for a motion for disclosure and a new trial date. One of the reasons that the date of December 10, 2012 was chosen was to accommodate Mr. Keaney because he was already scheduled to be at Manitoulin Island (Gore Bay) on that date.

[36] The transcript does not reflect whether either counsel was in a position to actually set a date for a disclosure motion or a new trial date on November 28, 2012 but it may clearly be implied that this adjournment to December 10, 2012 was needed to allow both sides to select or canvass available dates with the court. This was a situation where modest, additional inherent time was required to reschedule the adjourned proceedings. This time period is to be considered as inherent-neutral.

3:2:2 December 10, 2012 to September 5, 2013

[37] As previously indicated on December 10, 2012, two dates were set. The first date of August 1, 2013 was set for a disclosure motion (later changed to September 5, 2013) and the second date of November 14, 2013 was set for trial.

[38] The disclosure motion was abandoned on August 20, 2013 because most of the additional disclosure sought by defence counsel was provided. The time which had been set aside to argue the motion (on September 5, 2013) was retained and used to argue the 11(b) Charter motion. The Charter motion was brought on August 29, 2013.

[39] On December 10, 2012, the applicant appeared to set dates for the disclosure motion and the trial. I have reviewed the transcript. A number of dates were canvassed as follows:

• The applicant offered March 14 or 15, 2013. Court was not sitting on those days;
• The applicant offered April 4, 2013. The court was not scheduled to sit that day;
• The applicant offered May 23 and 30, 2013. The court was not scheduled to sit on these days;
• The dates of June 13 and 20, 2013 were canvassed in advance and said by defence counsel to be available. Both said days were available to the court but counsel for the applicant upon attending court on December 10, 2012 advised they had since been taken and were no longer available;
• The applicant then offered June 14, 2013. The court was not scheduled to sit that day;
• The dates of July 16 and 18, 2013 were canvassed in advance and said by defence counsel to be available. Both days were available to the court but counsel for the applicant advised upon attending court on December 10, 2012 that said dates were no longer available, but that July 17, 2013 (not a date scheduled for the court to sit) was available.

[40] Mr. Keaney asked the trial co-ordinator whether a special date could be arranged by the Regional Senior Judge. The trial co-ordinator (Ms. Middaugh) offered to ask her Honour Justice Serré to attend the courtroom in order to discuss this. Mr. Keaney responded by saying, "No, let's keep going and see where we are." Ms. Middaugh then suggested August 1, 2013 for the disclosure motion. Mr. Keaney responded "Yes, that's fine". Mr. Keaney also indicated "Alright that works." It should be noted that the Crown advised that all of the prior dates mentioned were available to the Crown. It was obvious that the trial co-ordinator was aware that Mr. Keaney wanted a 90 day gap running from the time the motion would be argued on August 1, 2013. She stated "Okay, so if you want to go to 90 days that would put us into November for the trial. November 7, or sorry November 14." Mr. Keaney responded by indicating "Thursday, November 14 is fine."

[41] In summary, it clearly appears from the transcript that defence counsel attended with a number of dates not available to the court because the court was not scheduled to be open for business on those dates. Regrettably, dates canvassed in advance where defence counsel said he was available (which dates were also available to the court) were no longer available by the time he actually got to court.

[42] It should be noted that Gore Bay is a town on Manitoulin Island located along Lake Huron's North Channel. It is one of the two incorporated towns of Manitoulin District. The only other court facility on the island is found at Wikwemikong, also a small community located more toward the east end of the island. The court is mindful that counsel know that the Ontario Court of Justice at Gore Bay does not sit full time. Counsel would be aware that on average, court is scheduled at Gore Bay four to five days per month including a first appearance court. Therefore a number of dates offered by Mr. Keaney did not coincide with available court dates. The number of "open" court days logically ties in with the geographic location of the court, the population serviced and resources available. It is against this backdrop, that the dates selected were obtained.

[43] At times, the court upon request (or depending on the need) may also schedule special days as circumstances may warrant. The idea of posting this matter to a special date (otherwise not regularly available) was not fully canvassed by either counsel although the possibility was briefly mentioned by Mr. Keaney, but not pursued.

[44] Defence counsel's first available date(s) was March 14 or 15, 2013 which were not court sitting days. In the decision of R. v. Lahiry [2011] ONSC 6780, Justice Code states as follows:

"If the case is lengthy and complex, or if counsel are very busy, it may be some considerable period of time before counsel are ready for trial. To use a simple hypothetical, if counsel has no time in his/her calendar to prepare a new case for trial and to then try it until ten months in the future, and the earliest date that the court has available for the trial is twelve months in the future, then systemic congestion in the court in the cause of only two months of delay. The other ten months is delay that the accused needs, for entirely beneficial reasons, in order to allow his/her counsel of choice to prepare the case for trial and to accommodate it in an otherwise busy calendar".

[45] I remain mindful of defence counsel's submissions distinguishing the Lahiry decision on the basis of the decision of R. v. Pusic [1996] O.J. No. 3329 and other related decisions. Essentially defence counsel drew the court's attention to the Pusic decision and other related decisions in support of the submission that offences in section 253 of the Criminal Code have long been categorized and identified as offences that should require brief time to get to trial. Defence counsel made the submission that the Lahiry decision and its progeny is not applicable to this case.

[46] The point to be made is that the progression of a case does not happen in a vacuum and time is inherently needed to get a case into the system and rolling. In the situation at hand, the process was re-triggered at the final hour with the result that a second trial date had to be scheduled.

[47] In the Crown's view the St-Onge Lamoureux decision may have made potential defences more likely to succeed but did not change the relevance or irrelevance of the items of disclosure sought. In other words, the defence could have sought the same disclosure it eventually obtained any time prior to the decision. It is difficult to agree with this submission. Even if the disclosure sought would in theory have been available prior to the "decision", it became more relevant to the defence after the "decision". As expressed by defence counsel, because of the St-Onge Lamoureux decision, a greater focus had to be placed on the operation, maintenance and workings of the actual instrument.

[48] This of course is not a case of delay resulting from defence counsel stalling in order to await a judgment of another court. It is a correct principle that trials cannot be delayed until we have the final answer from the Supreme Court of Canada and to do so would have the potential of causing the system to become log jammed. In this case, defence counsel was simply faced with the reality of the law changing just prior to the trial date. Defence counsel's response was to ask that the trial be adjourned so that he could cover all bases (so to speak). This strategy is understandable and defence counsel knew there would be a further delay. The decision was made to go ahead and to seek the adjournment.

[49] Defence counsel made the interesting comment that had parliament got it right in the first place, there would have been no need to adjourn the case. Defence counsel takes the position that the entire time required to schedule the second trial date should be attributed to the Crown or to institutional delay.

[50] A few skirmishes took place between counsel, as referred to in their respective factums, on the issue of disclosure. These skirmishes took place after dates for a disclosure motion and trial had already been set. This is not a situation where there is delay in setting a date pending disclosure or some other procedural issue. There was ample time between the set date and trial date for disclosure issues to be ironed out. With the exception of moving the disclosure motion date from August 1, 2013 to September 5, 2013, the two dates set were not revisited. Hypothetically had disclosure issues been resolved sooner (notwithstanding the new landscape opened up by the St-Onge Lamoureux decision) an effort could have been made to advance the trial date. The fact that this did not materialize does not seriously impact my decision.

[51] As indicated in the Morin decision, there is no mathematical or administrative formula that can be applied to all cases. Moreover, the court must undertake a flexible and functional approach balancing all relevant factors. The court cannot accept the argument that the entire delay (or most of the entire delay) in setting the second trial date must be attributed to the Crown. The motion to adjourn the trial date was brought by the applicant. The Crown objected to the adjournment. Up to the eve of the first trial date (and motion to adjourn) no application under the Charter based on delay was brought. Neither counsel anticipated that the Supreme Court would release the St-Onge Lamoureux decision at the time that it did. It was, in essence, unforeseeable.

[52] It is reasonable to assume that defence counsel would require time to prepare for the disclosure motion. Preparation time would have included time needed for defence counsel and Crown counsel to consider possibly obtaining an opinion from an expert(s). There is no indication on the record when counsel for the defence would have been ready to conduct the motion. On the face of it, it is obvious that the case was not ready to proceed on December 12, 2012.

[53] No one knew when the St-Onge Lamoureux decision would be released nor expected that the release date would be three weeks or so before the trial date. The Crown took the view that the case should have been posted to June 13 or 20, 2013 for trial because defence counsel, before attending court, had canvassed these dates (as well as dates in July 2013) and said these were available. It is unfortunate that these earlier trial dates which had been expressed as available could not be maintained. It is not up to the court to speculate why dates offered by defence counsel both in June and July 2013 could not be safeguarded. This may have well been beyond defence counsel's control. The court was not made privy to the circumstances.

[54] Likewise, the issue of a special date being selected was not pursued. The matter was raised because counsel obviously knew that this was possible and done from time to time. A decision was made by the applicant to keep going with available dates and "see where we are".

[55] For purposes of my analysis, I have taken a number of factors into account including the requirement of counsel needing time to fully digest and consider the ramifications of the new decision, counsel needing time to consider the possibility of obtaining expert evidence, the assembly of materials needed for purposes of bringing a disclosure motion, the requirement of Crown counsel needing reasonable time to respond to disclosure requests, general preparation for the disclosure motion and time required for defence counsel to consult with and obtain instructions from his client.

[56] Generally speaking, just as in-take time is allowed where a case initially comes into the criminal justice system, it is inherent in the process that some time must be allowed to reschedule matters that are adjourned for acceptable reasons. In this case the grounds advanced for the adjournment focused on disclosure issues and the necessity to bring a disclosure motion which in itself would require preparation time. In balancing all factors, including defence counsel's first available dates, I have concluded that the period between December 10, 2012 and March 14, 2013 should be considered as an inherent time requirement for the motion and to some extent the trial.

[57] Defence counsel also anticipated requiring time to prepare for trial after having the benefit of the decision of the disclosure motion scheduled for September 5, 2013. The trial co-ordinator made reference to a 90-day period extending from the date of the disclosure motion. Hence the trial date of November 14, 2013 was set.

[58] It should be anticipated that counsel by and large were ready for trial as at November 2, 2012 when the St-Onge Lamoureux decision was released. Bearing in mind a gap exceeding eleven months to the second trial date (with the disclosure motion intervening) it would be most appropriate to consider at least 60 days as inherently required to prepare for trial.

[59] In summary, the period between November 28, 2012 and December 10, 2012, for reasons already expressed, is to be considered inherent-neutral delay. The period between December 10, 2012 and March 14, 2013, for reasons expressed above, is to be considered as inherent-neutral. The period between March 14, 2013 and September 14, 2013, for reasons expressed above, is to be considered as institutional delay. Finally, the period between September 14, 2013 and November 14, 2013 is to be considered as inherent-neutral.

[60] In the result, and with regards to Phase "B", the reasons for the delay are as follows:

• Inherent time requirements: 167 days
• Institutional delay: 183 days

[61] As discussed, the Morin guideline for delay (subject to adjustment depending on the facts of each case) is eight to ten months. In this case, the period of Crown/Institutional delay for Phase "B" falls well within the guideline.

4: PREJUDICE

[62] There is a difference between prejudice arising from merely being charged with a criminal offence and prejudice arising from delay. Under section 11(b) of the Charter, the focus of prejudice is the prejudice flowing from a situation "prolonged" by delay rather than the mere fact of being charged with a criminal offence.

[63] In dealing with the issue of prejudice, Justice Code in R. v. Emanuel 2012 ONSC 1132, [2012] O.J. No. 709 stated:

"The law is that prejudice can be inferred from a very long and unreasonable delay, that is, from delay that is substantially longer than can be justified on any acceptable basis. For example, prejudice can be inferred from unjustified delays that are more than double the Morin guideline for institutional delay in the provincial courts; see R. v. Godin (2009), 245 C.C.C. (3d) 271."

"On the facts before the court prejudice cannot be 'presumed' or 'assumed' because of unjustified delay. The length of the delay cannot be categorized as 'very long' or 'substantially longer' than the Morin guidelines from which prejudice can be inferred."

[64] As to actual prejudice, I have considered Ms. Morrison's affidavit sworn September 3, 2013 as well as evidence she gave in response to questions posed in cross-examination.

[65] At the time she was charged, Ms. Morrison was employed as a bar steward at the Canadian Legion. She had held this position for about two years. Her place of employment was located about 20 to 25 minutes from her home. According to her affidavit evidence, she and her husband live in a rural area without access to public transportation. As a result of the administrative license suspension she said that she lost her employment.

[66] Ms. Morrison indicated that as a result of losing her employment, she could no longer contribute to the household income. In cross-examination, she disclosed that her employment was in fact part-time. She earned approximately $8,000.00 per year while her husband, a fully employed helicopter pilot, earned gross income in the range of $70,000.00 to $80,000.00 per year.

[67] Ms. Morrison did get her driver's license back after expiry of the administrative suspension. She confirmed having applied for different jobs. She applied to "Contact North" with offices located 30 to 35 minutes from her home at Wikwemikong. She was not successful in securing that employment for reasons relating to her lack of knowledge about historical and current native issues.

[68] She submitted an application to a mining company but did not receive a response. She applied for a position at Canada Post. Her application was accepted. She attended to be fingerprinted as part of the hiring process. She was not contacted afterwards.

[69] She also applied on line to work at L.C.B.O. at Manitowaning. She was not successful in securing that employment.

[70] Ms. Morrison suffers from chronic ulcerative colitis. This form of illness is negatively affected by stress. She states that the proceedings have created an element of stress in her life. She also expresses being depressed due to the uncertainty of not knowing when and how her charge will be resolved.

[71] The court is sympathetic with personal life issues affecting Ms. Morrison. There is, however, a difference between prejudice arising from merely being charged with a criminal offence and prejudice arising from delay. Prejudice from being charged resulted in Ms. Morrison losing her license right away. This regrettably impacted on her ability to remain employed at the Legion but had nothing to do with delay. Likewise, prejudice from being charged includes the expense of retaining counsel.

[72] To her credit, it appears that Ms. Morrison made several efforts to seek and obtain employment after being charged. The reasons for her not obtaining further employment do not appear to be related to the issue of delay. The evidence suggests that her lack of success in finding employment may have had to do with her lack of experience or qualifications.

[73] Understandably, having to face a criminal charge may negatively impact some people more than others. Ms. Morrison has pre-existing health issues which may have made her more prone to be negatively affected by stress. On the other hand, the pendency of a criminal trial would, in the normal course, create anxiety, stress and concern in any accused. Undoubtedly had the trial proceeded on November 29, 2012, Ms. Morrison would have been free much sooner from the stress of having the charge hanging over her.

[74] Prejudice to the security of her person resulting from the charge may have been aggravated by delay. While I do find that Ms. Morrison experienced some prejudice as a result of some delay, this would not be sufficiently significant to consider shortening the guidelines in Morin.

5: CONCLUSION

[75] In considering the factors enumerated in Morin and delay over the two trial dates, I have concluded that institutional delay accounted for 124 days (or approximately 4 months, 4 days) in Phase "A" and 183 (or approximately 6 months, 3 days) in Phase "B".

[76] In my view, this is not a case, even if institutional delay were found to be slightly longer, where delay has become unreasonable. In some cases, institutional delay may be on the edge of the constitutionally tolerable. In those cases, the issue of prejudice would be central to the outcome of the 11(b) analysis. This is not one of those cases.

[77] I accept Ms. Morrison's subjective appreciation of the impact the charge has had upon her but at the same time, the evidence before me falls short of categorizing her much differently than others caught in the same circumstances.

[78] Based on the unique facts of this case, I do not find that institutional delay falls outside the range established by Morin. In any event, the Morin guidelines are not fixed or inflexible. Moreover, there are societal interests in ensuring that an accused is tried within a reasonable time in order to minimize prejudice to the accused and ensure fair treatment. There is also a societal interest in ensuring that those accused are tried on their merits.

[79] In the absence of significant prejudice suffered by Ms. Morrison during the period of delay, which I do not find to be the case, even if the period of institutional delay was marginally beyond the outer limits of the Morin guidelines, I would, in balancing all factors relevant to the case including a strong societal interest in having the charge determined on its merits, find that there has not been a breach under section 11(b) of the Charter.

[80] As a consequence I have concluded that the applicant's rights under section 11(b) of the Charter have not been infringed. The application is dismissed.

[81] This motion was heard September 5, 2013. Defence counsel was permitted to provide written reply submissions by September 16, 2013. The reply submissions were provided on September 13, 2013. There was no specific return date selected for my ruling on the Charter motion. Because the trial is pending (November 14, 2013), I have chosen to release my ruling directly to counsel today. The original copy of my ruling has been forwarded to the clerk at Gore Bay to be attached to the information and confirmed as part of the record on November 14, 2013.

Released: October 10, 2013

Signed: "Justice Randall W. Lalande"