Ontario Court of Justice

Old City Hall – Toronto

Between

Her Majesty the Queen

And

Krzysztof Duszak

Counsel

T. DiMuzio — For the Crown

F. Fedorsen and A. Little — For the Defendant

Heard: July 5, 2013

Reasons for Ruling

(Re Charter S. 11(b) Application)

MELVYN GREEN, J.:

A. Introduction

[1] The defendant, Krzysztof Duszak, was arrested and charged on May 18, 2012 with the Criminal Code offence of operating a motor vehicle with an excessive blood alcohol concentration (BAC) and, pursuant to the Highway Traffic Act, with speeding. He was released from the station the same day on a Promise to Appear and the Informations for both offences were sworn some three weeks later, on June 7, 2012. The defendant was required to first attend court on July 2, 2012, more than six weeks after his release. By then the defendant had retained counsel who had already pressed the Crown for disclosure. As July 2nd was a holiday, the matter was adjourned to July 16th. Preliminary disclosure was first provided on July 30, 2012. Video disclosure was not made until August 20, 2012. The defendant's counsel expressed his immediate availability when the earliest available trial date of September 3, 2013 was set on October 1, 2012, some 11 months earlier.

[2] Approximately 15½ months have passed since the defendant was arrested and first charged and almost 15 months since the two Informations were sworn. Crown counsel declined to cross-examine James Hawkins, an associate of the defendant's counsel, on his affidavit detailing defence efforts to secure disclosure and first appearance practice in Peel Region. Crown counsel also declined to cross-examine the defendant on the contents of an affidavit he filed attesting to several strands of tangible prejudice he claims to have experienced as a result of the delay attending his trial. The defendant did not waive any of the periods of delay nor can any significant delay be credited to his conduct. The total span is, rather, primarily attributable to unexplained delay in providing disclosure and institutional or systemic factors.

[3] The non-neutral global delay here significantly exceeds that condoned by the governing jurisprudence. Combined with the actual and inferred prejudice that I find the defendant has suffered, and factoring in due consideration for the nature and gravity of the alleged offences, I am persuaded that the defendant's right to a trial without unreasonable delay, as protected by s. 11(b) of the Charter, has been infringed and that the only appropriate and just remedy under s. 24(1) of the Charter is a stay of proceedings. As a result, I stayed the two charges on September 3, 2013, reserving my fuller reasons for this determination. These reasons follow.

B. Chronology

[4] The defendant was stopped for speeding a little after 1:00 a.m. on May 18, 2012. He is alleged to have been driving 73 km/h in a 50-km/h zone. At 1:22 a.m., following a brief roadside investigation, the defendant registered a "fail" on an approved screening device. He was then arrested for the offence of operating a motor vehicle with a legally excessive BAC, read his rights to counsel and cautioned. The defendant complied with a breath demand, providing two samples of his breath that recorded 148 and 134 milligrams of alcohol in 100 millilitres of blood, respectively. The defendant was released from the station on a Promise to Appear, as authorized by s. 498 of the Code, with his first court date scheduled some 45 days later, on July 2, 2012. An Information confirming the July 2nd court date for the charge of "over 80" was sworn on June 7, 2012, almost three weeks after the alleged offence date. The speeding charge followed a parallel trajectory.

[5] On June 20, 2012, about two weeks before the defendant's first scheduled appearance, the defendant's counsel faxed a letter to the appropriate Crown Attorney's office requesting some nineteen itemized categories of disclosure. The letter invoked the defendant's "constitutional right to a speedy trial" and cautioned that he "is concerned about delay in this matter". The letter closed with a request for written notification of "when this disclosure can be made available to us".

[6] July 2, 2012 was a statutory holiday. The police advised the defendant in June that, as a result, he need not appear until the following day, July 3, 2012. Accordingly, the defendant did not appear on July 2nd. An agent for counsel for the defendant appeared on July 3rd, only to learn that the matter had been spoken to on July 2nd and a discretionary bench warrant for the defendant had then issued, returnable to the date of July 16th. Counsel for the applicant faxed a second disclosure letter to the Crown the next day, July 4, 2012. Other than appropriate revisions as to dates, the letter is identical to that sent on June 20th.

[7] An agent appeared again on July 16, 2012 (some two months after the defendant's arrest), filed a counsel designation and noted that the defence was "still looking for some disclosure in this matter". Crown counsel advised that the disclosure was "not vetted" and that it would "probably [take] a week or so" to complete this task. Accordingly, the defendant's agent suggested a one-week adjournment, to July 23, 2012, "to receive disclosure". There was no Crown brief in court when the defendant's case was addressed on July 23rd return date. Crown counsel suggested the brief "may be making its way into court later this morning". The agent for the defence proposed putting the matter over another week, to July 30th, "when we should have everything available". There is no evidence before me to suggest that the Crown brief appeared later that morning or that any disclosure was available at any time prior to July 30, 2013.

[8] Defence counsel faxed a further disclosure request letter to the Crown on July 25, 2012. It was substantively identical to the first two disclosure letters but for a much-abbreviated list of requested items. "Paper disclosure" was provided at the July 30th appearance – more than ten weeks after the defendant's arrest. The thrice-requested videotape and DVD disclosure were still not available. "They", noted Crown counsel, "have been ordered". The matter was remanded a further three weeks, to August 20th, for "video tape disclosure". The defendant's counsel faxed another disclosure request letter later that same day, focusing on various outstanding video recordings and the Intoxilyzer 8000C. The letter included an extended caution respecting enforcement of the defendant's s. 11(b) Charter rights in view of the mounting delays.

[9] A copy of the in-car video was provided the defendant's agent at the August 20th appearance. However, the booking room and breath room videos remained outstanding. They, along with the requested Intoxilyzer material, had apparently "been ordered again" by the Crown's office, and the matter was adjourned yet again, this time to September 10, 2012, to afford this disclosure. The respondent Crown asserts that "the remaining relevant disclosure was provided later [on the] day" of August 20th. This appears to have been the case but for that respecting the Intoxilyzer 8000C which led to a further defence disclosure request on August 21st.

[10] Crown and defence counsel exchanged barbs at the September 10, 2012 court appearance about which party was responsible for a Crown pre-trial not yet having occurred. Although unresolved, each side claimed to be "anxious" to move the case forward and the matter was adjourned three weeks, to October 1, 2012, to accommodate the conduct of the Crown pre-trial. On that return appearance, the defence, "eager to proceed", was prepared to fix the defendant's trial on the earliest date provided by the trial co-ordinator's office (September 3, 2013) "despite some outstanding Intoxilyzer disclosure". Accordingly, September 3, 2013 – some 11 months hence and almost 15 months after the Informations were sworn – was set down for the defendant's trial. Defence counsel advised the court that his "office is prepared and ready to proceed to trial even tomorrow and we have available dates virtually every week between now and September of 2013".

[11] The requested Intoxilyzer data, the final outstanding item of disclosure, was faxed to counsel for the defence on October 4, 2012, three days after the defendant's trial date was set.

C. The Defendant's Circumstances

[12] The defendant was a 27-year-old student at Brock University at the time of his arrest. He was enrolled in a mathematics and computers program and hoped to graduate in October 2013.

[13] The defendant retained counsel before his first appearance and instructed him to proceed swiftly as he was concerned about his capacity to handle the mental, physical and emotional stress of his prosecution. His case, and particularly the uncertainty of its outcome, had preoccupied the defendant, leading to sleepless nights and anxiety that grew worse with the passage of time. He consulted a physician in November 2012 who prescribed Ativan to relieve the defendant's anxiety. Mood disorder testing in January 2013 indicated, according to his physician, that the defendant "had severe anxiety and moderate depression". There was some related functional impairment. Despite the introduction of stress-management techniques and further anti-anxiety medication, the defendant's anxiety levels had increased by mid-May of 2013. Medically supervised use of a longer-acting anti-anxiety drug followed. The defendant maintained this regime along with the prescribed stress-management strategies. His physician's assessment, drafted at the end of May 2013, was that the defendant "has been experiencing prolonged anxiety and stress related to his ongoing court case".

[14] The defendant expressed concern that his memory of details of the relevant events had faded over time. He had also suffered financial pressure associated with his defence, including the expense of repeated counsel appearances to address the issue of disclosure. In the end, he had had to borrow money from his parents to help defray his legal costs.

D. Section 11(b): The Analytical Framework

[15] The fundamental architecture of any s. 11(b) inquiry is long settled. The factors relevant to an assessment of the reasonableness of pre-trial delay are set out in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.), at para. 31:

1. 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 defendant;
   • (c) Actions of the Crown;
   • (d) Limits on institutional resources; and
   • (e) Other reasons for delay; and

4. Prejudice to the defendant.

It is trite law that a stay of proceedings is the only appropriate remedy in those cases where the s. 11(b) hurdle of "unreasonable delay" is crested: R. v. Thomson (2009), 248 C.C.C. (3d) 477 (Ont. C.A.), at paras. 9-10.

[16] The "length of the delay", as said in Morin, supra, at para. 35, is "the period from the charge to the end of the trial". For purposes of s. 11(b) applications brought by way of preliminary motion (as in the case before me), the "end of the trial" is nominally the date scheduled for an accused's trial – here, September 3, 2013. As explained in Morin, supra (affirming R. v. Kalanj, [1989] 1 S.C.R. 1594, at paras. 16-20), and addressed more fully below, the "charge", or start point in such calculation, is "the date on which an information is sworn" – here, June 7, 2012.

[17] The s. 11(b) exercise involves "a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay": Morin, at para. 31. In her concurring opinion in the same case, McLachlin J. (as she then was) noted, at para. 88, that, "[w]hat is important is how those factors interact and what weight is to be accorded to each". Indeed, the legal characterization and attribution of particular periods of delay is a common feature, as here, of the adjudication of s. 11(b) claims.

[18] The primary interests protected by this Charter provision are those of the defendant: security of the person, liberty and fair trial rights. Societal interests (including that criminal charges, particularly serious ones, are tried on their merits and ensuring that those charged with criminal transgressions are not only brought to trial but quickly and fairly) are also of concern: see Morin, supra, at para. 26-30; R. v. Askov (1990), 59 C.C.C. (3d) 449 (S.C.C.), at 474; and R. v. Qureshi (2005), 128 C.C.C. (3d) 453, at 458 (Ont. C.A.). As concisely restated by the Supreme Court in R. v. Godin (2009), 245 C.C.C. (3d) 271, at para. 18:

Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect.

See also: R. v. Tran, 2012 ONCA 18, at paras. 20-24.

[19] The defendant bears the ultimate or legal burden of establishing a violation of his or her s. 11(b) rights, although a case need "only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it": Morin, supra, at para. 33, affirming R. v. Smith, [1989] 2 S.C.R. 1120, at 1132. While no mathematical formula controls this determination, the administrative guidelines first set out in Morin assist in defining the reasonableness of pre-trial delay. In the case, as here, of a relatively simple provincial court trial, the guideline for permissible institutional or systemic delay is eight to ten months: see R. v. G. (C.R.), (2005), 77 O.R. (3d) 308 (C.A.), at 315. This metric must not be confused with a fixed limitation period; the precise dimensions of constitutionally tolerable delay may well be influenced by a variety of social, regional and case-specific factors.

E. Applying the Framework: An Introduction

[20] The instant case readily lends itself to conventional s. 11(b) analysis. That said, the application of certain facets of the analytical framework continues to attract controversy. Foremost among these are those sub-periods of the overall delay attributed to the "inherent time requirements of the case". As said in R. v. Tran, supra, at para. 56, the "inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus". (See also, R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.).) As such, periods credited to a case's inherent requirements are not charged to the defence, Crown or institutional factors and, as a result, are effectively deleted from the global "time" subject to s. 11(b) "reasonable"-ness scrutiny.

[21] The "intake" period (including the provision of disclosure) and the interval between the fixing of a trial date and counsel's trial availability are near-universal examples of inherent time requirements that continue, as in the case before me, to generate divergent opinions as to their appropriate duration. The periods, if any, consumed by the occurrence of judicial pre-trials and certain motions brought by the defence are also generally treated as of neutral value in the s. 11(b) calculus with, again, varying judicial views being taken as to the weeks or even months that are properly attributed to them. This list is not exhaustive of periods that may be assigned to the inherencies of a prosecution. However, but for judicial pre-trials each of these here commands consideration.

[22] In most prosecutions, including the one before me, the appraisal of a case's inherent time requirements is a fact-driven exercise. Accordingly, and except to the degree necessary, I decline defence counsel's invitation to sand down some of the purportedly rough edges of the s. 11(b) scaffolding by way of magisterial pronouncements. I do, however, intend to address the appropriate treatment of the "intake" delay, as transpires in the instant case, between an accused's arrest and release from the station and the swearing of the Information that occurs some weeks later.

[23] As earlier noted, the gap between the date the Informations were sworn and the defendant's provincial court trial date spans nearly 15 months – a period sufficiently lengthy to warrant s. 11(b) examination in the case, as here, of a simple one-day trial. There was, as acknowledged by the respondent Crown, no explicit waiver of the defendant's right to a trial without unreasonable delay. Nor, I find, is any significant period of delay properly attributable to the conduct of the defence. It is impossible, on the evidence before me, to resolve the dispute as to which, if either, side is accountable (as opposed to an instance of miscommunication or shared responsibility) for the failure to conduct a Crown pre-trial in the three-week interval between the August 20 and September 10, 2012 appearances. The defence request for a further three-week adjournment on the latter date, although not a model of forensic economy, seems not unreasonable given the then still-outstanding disclosure and the need to schedule and conduct an interim Crown pre-trial meeting. In the end, the six weeks immediately preceding the fixing of the defendant's trial date are more appropriately characterized as aspects of the inherent time requirements of the case than as conduct charged to either party in the s. 11(b) calculus.

[24] What is abundantly clear is that the defence repeatedly asserted its right to a trial without unreasonable delay and demonstrated the same conviction when a trial date was offered. Accordingly, the predominant concerns in the following analysis are, first, the reasons (other than the defendant's actions) for the overall delay; second, the prejudice suffered by the defendant as a result of that delay; and finally, the weight to be assigned to societal interests in the ultimate balancing. I address each of these in turn.

F. Operative Reasons for the Delay

(a) Introduction

[25] I do not hold the defendant responsible for any significant delay. Nor are there any "other reasons" for the delay – that is, reasons that fall outside the three remaining conventional categories of explanation set out in Morin: the "inherent time requirements of the case", "actions of the Crown" and "limits on institutional resources". I begin by addressing those intervals generally characterized as part of the case's inherent time requirements: the intake period, that pertaining to counsel's trial availability and the delay, if any, associated with the filing of anticipated Charter motions and the Crown response to them. The Crown and defence are here strenuously at odds as to the duration properly attributable to each of these three considerations.

(b) Inherent Time Requirements

(i) Intake

1. Introduction

[26] In an oft-quoted passage in Morin, supra, at paras. 41 and 42, Sopinka J. observed that:

All offences have certain inherent time requirements which inevitably lead to delay. Just as the firetruck must get to the fire, so must a case be prepared. …

As well as the complexity of a case, there are inherent requirements which are common to almost all cases. … [T]hey consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc. All of these activities may or may not be necessary in a particular case but each takes some amount of time. As the number and complexity of these activities increase, so does the amount of delay that is reasonable. Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay. [Emphasis added.]

[27] The instant case is straightforward, uncomplicated and routine. Yet, the date for the defendant's trial was not fixed until some four and half months after his arrest and almost four months after the Informations were sworn. Some of this four-month period is clearly attributable to the inherent requirements of the case and thus of neutral value in the s. 11(b) calculus, but its duration suggests that forces other than those inherent to nearly every prosecution are at work. Limits on institutional resources play no role at this stage of the defendant's proceedings and I have found that the defence did not significantly contribute to any of this period of delay. Accordingly, any non-"inherent requirements" component of the delay preceding the fixing of the trial date falls to the Crown. The computation of the division between neutral and party-credited delay is never mechanical. It is here further complicated by the delay in swearing the Informations and, thus, in legally triggering the s. 11(b) clock. This latter issue gives rise to the "Kalanj point" to which I return in due course.

2. Calculating the Appropriate Intake Period

[28] Most of the defence-side activities typically grouped under the umbrella of inherent requirements do not obtain in this case. No bail hearing was required and counsel was retained well before the defendant's first scheduled appearance. Further, the case before me is among the simplest to occupy a criminal court's docket: a routine case of speeding and driving with an excessive BAC. The record discloses no idiosyncrasies or complexities. No accident or injury complicates the fact pattern. There are no notices of expert witnesses. The prosecution appears to involve little more than the testimony of the officer or officers who first attended on the defendant, the in-car, booking room and breath room videotape evidence, if any, and the certificate of analysis of a qualified breath technician. Given the nature of the allegations, it is unlikely that any witness other than the defendant needed to be interviewed by counsel, at least prior to the provision of disclosure. Counsel, having conducted a pre-trial meeting, were in agreement that no more than one day, by way of a blended proceeding, was required for a full trial of the matter, including any Charter motions other than that founded on s. 11(b). No judicial pre-trial was deemed necessary. Indeed, Crown counsel, on the hearing of this motion, agreed that this is a "simple case".

[29] It is also uncontroversial that the entirety of the evidence essential for the prosecution of the case was complete by the time the officers concluded their shifts on the day of the defendant's arrest. (See R. v. Seeveratnam, [2010] O.J. No. 2815 (C.J.), at para. 37.) Satisfaction of the state's disclosure obligations does not rest solely with the police, but their role required no more than preparing copies of the involved officers' notes, the documentation related to the relevant certificates and any videotape evidence, and forwarding these materials to the Crown for its review, compilation and ultimate release to the defence. I recognize that the Crown review is much more than perfunctory and that the defendant's case was but one of many vying for vetting and administrative attention. Nonetheless, the relevant disclosure brief cannot have been lengthy and its contents raised no legal sensitivities or complexities, or at least none about which I have been apprised.

[30] Despite all this, and for reasons that remain obscure, the defendant was not required to attend court until some 6½ weeks after his release from the station on May 18, 2012. Even then, no initial "paper disclosure" was provided to the defence until the fourth scheduled appearance, on July 30, 2012. Despite the ten-week post-arrest interval and, by then, three detailed requests for disclosure, neither the videotape evidence nor that pertaining to the operation of the Intoxilyzer 8000C was available by that date. No reason has been advanced for the delays in the production of the requested disclosure to the defence. The in-car video was finally made available on August 20, 2012 (more than three months after the defendant's arrest) and copies of the remaining videotapes were provided some time after the scheduled court appearance that same day. The still-outstanding Intoxilyzer-related data played no apparent role in the scheduling of the defendant's trial: this additional disclosure was not provided until some days after the October 1, 2012 appearance when the defendant's September 2013 trial date was finally fixed.

[31] It is difficult to understand the delays attending disclosure in this case. No novel issues or ambiguities are involved. There was no follow-up investigation. No claims of privilege or confidentiality are advanced. Nor are there any Stinchcombian disputes as to potential relevance. Two and half months to afford initial paper disclosure in a routine case is appalling, especially where, as here, counsel was promptly retained and immediately pressed for disclosure and a speedy trial. The additional delay involved in providing DVD copies of the videotapes is particularly exasperating. As said by Trotter J. in R. v. Farry, [2010] O.J. No. 1977 (S.C.J.), at paras. 11-12 in regard to latches respecting DVD disclosure in a similar case:

This type of delay, which is caused by the police, is a common occurrence in the Ontario Court of Justice. In our digital world, in which data is so easily shared, there is no good reason why a copy cannot be produced in a very short period of time. In this case, it should have been available by the first appearance date (which was over a month following the arrest). Meaningless appearances are routinely made in the Ontario Court of Justice while everyone waits for the police to make copies of what transpired in the breathalyzer room. These needless appearances clog the already busy courtrooms in this province. This is unacceptable.

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.

Justice Trotter's assessment is undoubtedly informed by his frontline service as member of the Ontario Court of Justice in this very courthouse before his elevation to the Superior Court. For similar views, see also: R. v. Godfrey, [2005] O.J. No. 2597 (S.C.J.), R. v. Maxwell, [2006] O.J. No. 4604 (C.J.) and the recent canvass of these and other relevant authorities in R. v. Dummett, 2013 ONCJ 309, at para. 23-28.

[32] The patent delay in affording disclosure is compounded by its inconsistency with Crown policy and the practice that obtains in at least one comparator jurisdiction. On January 11, 2001, well more than a decade before the defendant was charged, the Director of Crown Operations for the Toronto Region advised "All Toronto Crowns" of a "Video Disclosure Agreement" designed to "streamline the process and make it easier for you to meet your disclosure obligations on first appearance". Pursuant to the Agreement, any videotaped materials were to be copied by the police and delivered to the Police Liaison Office at each court location in Toronto seven days in advance of a defendant's first appearance "so that it can be matched up with the Crown brief to be handed out on first appearance". As noted, this Ministry directive was, at least in part, expressly driven by the Crown's "disclosure obligations". It appears that the Agreement has never been modified or rescinded.

[33] The settled practice in the neighbouring jurisdiction of Peel Region appears consistent with this Crown policy, as well as evidencing much speedier first appearances than that which obtained in the case at bar or in the many dozens of similar alcohol and driving cases over which I have presided in Toronto generally or at Old City Hall Courthouse in particular. Based on James Hawkins' unchallenged affidavit and the attached copies of the almost 80 Promises to Appear issued in Peel Region drinking-and-driving-related cases defended by the defendant's law firm in the years 2009 through mid-2013, the interval between a defendant's release from the station and his or her first required court appearance in Peel ranged from eight to, on a single occasion, a maximum of 22 days. More than 70 percent of the Peel defendants' first court appearances were scheduled within 15 days of their arrests. Further, the practice in Peel is to provide initial disclosure, including any breath room video, at that first appearance. (Although not essential to this analysis, several judges who routinely preside in Peel have anecdotally confirmed these data in response to my inquiries.)

[34] By way of comparison, the defendant before me was not directed to attend court until some 45 days after his arrest and formal release from the station. He was not provided with even initial disclosure for a further four weeks, and video disclosure was not afforded until three weeks thereafter – more than three months after his arrest. Peel Region is not Toronto but it is the second-largest municipality in Ontario, geographically contiguous and, like Toronto, is a large, diverse and well-resourced urban centre with a population well in excess of a million persons. The defence-tendered Peel-related data may well not meet the standards of rigorous statistical analysis. Nonetheless, their apparent randomness, substantial sample size and consistency over several years strongly suggest that they are fairly representative of the Peel first-appearance experience. The Crown failure to advance any contradictory information supplements my confidence in the Peel data's reliability. Although here speaking of institutional resources, Cory J.'s comments in R. v. Askov, supra, at paras. 60-61, remain instructive:

[A]n inquiry into what is reasonable in any region should not be taken in isolation and must, of necessity, involve a comparison with other jurisdictions. Consideration must be given to the geography, the population and the material resources of the province and district. The comparison of similar and thus comparable districts must always be made with the better districts and not with the worst. …

[T]he question of how long a delay is too long may be resolved by comparing the questioned jurisdiction to the standard maintained by the best comparable jurisdiction in the country. The comparison need not be too precise or exact. Rather, it should look to the appropriate ranges of delay to determine what is a reasonable limit.

[35] With all due respect, I am of the view that the summary dismissal of similar comparative data tendered in R. v. Cabading, [2012] O.J. No. 3800 (S.C.J.), at paras. 6, 10-11, reflects the imposition of overly demanding criteria and, as a result, is overly tolerant of an entrenched pattern of intake delay in Toronto. As the just-quoted passage from Askov makes clear, the "inquiry into what is reasonable in any region should not be taken in isolation and must, of necessity, involve a comparison with other … better districts and not with the worst". Further and importantly, the "comparison need not be too precise or exact" – so long, as later instructed in Morin, supra, at para. 51, "care [is] taken that a comparison of jurisdictions is indeed a comparative analysis" and "applied … only as a rough guide". The failure to empirically confront systemic delay resulting from limited institutional resources risks, as said by the Supreme Court in the earliest of its s. 11(b) jurisprudence, "legitimiz[ing] current and future delays" and perpetuating "a source of justification for prolonged and unacceptable delay": R. v. Mills, [1986] 1 S.C.R. 863, at p. 935. (See also: R. v. Sikorski, 2013 ONSC 1714, [2013] O.J. No. 1654 (S.C.J.), at para. 97.)

[36] In short, I share the concerns expressed by a number of my Toronto-based judicial colleagues respecting the delays involved in moving a case from charge to the fixing of a trial date in, as here, routine drinking-and-driving prosecutions involving no more than a small handful of police witnesses whose evidence was chronicled and preserved by the time the defendant left the station. Nor has the Crown proffered any explanation for why essential elements of disclosure were not available by the defendant's first, second or third appearance, thus necessitating further adjournments. As first said, by way of an example only, in R. v. Smith, supra, at 1132-3 (and affirmed in Morin, at para. 33):

[A] long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances.

Whether a product of the police or the prosecution service, the Crown has here not met its burden to explain substantial portions of this intake delay, particularly that surrounding disclosure. Accordingly, these periods are properly colourable as "actions of the Crown".

[37] Inherent time requirements reasonably include an opportunity for defence counsel to review disclosure, consult with his or her client and take instructions. Some relatively brief period to conduct a Crown pre-trial is also contemplated. As noted by Code J. in R. v. Lahiry (2011), 283 C.C.C. (3d) 525 (Ont. S.C.J.), at para. 22, "two months is a reasonable intake period in simple drinking and driving cases". Given the conspicuous absence of a judicial pre-trial, no longer period can be condoned to accommodate the time requirements inherent in this case. These two months (which are consistent with the defence assessment of an appropriate intake period) are of neutral value in the s. 11(b) calculus. The residual delay antedating October 1, 2012 (when the trial was finally scheduled) is properly attributable to the conduct of the state as a result of its delayed and fractured disclosure. This begs the question here of the duration of that "residual delay". Put more specifically: in assessing this interval how is one to analytically treat the police decision to release the defendant on a Promise to Appear on the date of his arrest, May 18, 2012, but not formally charge him, by way of the swearing of an Information, until some three weeks later? It is this issue – the "Kalanj point" – to which I now turn.

3. The "Kalanj Point"

[38] Section 11(b) of the Charter provides that, "Any person charged with an offence has the right to be tried within a reasonable time". One inevitable question in the construction of this constitutional guarantee is the meaning of the word "charged". Put otherwise: for purposes of s. 11(b) analysis, when does the assessment of "reasonable time" begin? More specifically still: does the s. 11(b) clock begin with the arrest of an accused or with the swearing of the Information that details the charge underlying the arrest? The answer is of no real moment in the case of an accused who is held for a show cause hearing following his or her arrest since a sworn Information has to be before the court by the time (less than a day and typically only a few hours) the accused first appears for his or her bail proceedings. The legally correct answer may be of far greater importance for those arrestees – such as the defendant before me – who are released by way of Promise to Appear, Undertaking or Recognizance by the police and for whom the swearing of an Information may not occur until several weeks thereafter.

[39] Given that any prejudice to the individual interests protected by s. 11(b) likely begins when an accused is first apprehended for an offence, there appears good reason to assume that the "reasonable time" contemplated by this Charter provision commences with an accused's subjective awareness of his or her jeopardy – that is, in the ordinary course, upon his or her arrest. It is true, of course, that the cognizable prejudices – to one's personal security, liberty and fair trial rights – are those referable to the delay attending one's trial and not those attributable to the charge itself: R. v. Conway, [1989] S.C.R. 1659, at 1672. Nonetheless, the delay, and the related accumulation of personal anxiety or other harm that may at some point amount to prejudice mandating constitutional remedy, must begin somewhere, and that 'somewhere' is arguably the moment when an arrest and conditional release crystalizes the risks associated with a criminal prosecution.

[40] It is at the point of arrest that the security interests – in the sense, particularly, of psychological integrity – of an accused are first affected. While an Information may not yet be sworn, a defendant arrested and released on a police-issued Appearance Notice, Promise to Appear, Undertaking or Recognizance is compelled to attend court on a specified date. A failure to honour this requirement will result in a warrant for the accused's arrest and, inevitably, further charges. The anxiety that accompanies almost any criminal charge commences with these events; whether it matures into that delay-related prejudice that may give rise to the remedy of a stay of proceedings is another matter, but its subjective launching point is an accused's initiation into the criminal justice stream (usually by way of arrest and some form of conditional release) – not when, unbeknownst to the accused, an Information formally setting out the charge that grounds the arrest is finally sworn.

[41] Similarly, the mobility interests of a defendant may be compromised, sometimes materially, from the very day of his or her arrest. An accused is typically required to attend court and a police station for fingerprinting. Depending on the form of police-issued release, an accused may also be required to comply with conditions that directly limit his or her physical mobility. For example, an accused may be required to observe certain boundaries or to maintain his distance from identified or certain classes of persons. Further, an accused risks criminal prosecution immediately upon his release for violating any of these conditions – even though the Information charging him with the initial offence may not be sworn until sometime well after an alleged breach. For example, in R. v. Huha, 2013 ONCJ 371, the defendant was arrested on December 2, 2011 and released by the police on an Undertaking that day. The incident that led to Mr. Huha's arrest had occurred on Toronto Transport Commission (TTC) property and, as a result, the terms of the Undertaking prohibited him from using the TTC system except for "demonstrable medical appointments". Mr. Huha suffered from a chronic, debilitating and very painful back condition that confined him to a wheelchair. He was impecunious, did not have a car and could not afford to traverse the city in any manner other than by way of public transportation. The Undertaking effectively immobilized him. Fortunately, the Information formally charging Mr. Huha was sworn within four days. The issue of s. 11(b) prejudice aside, had three weeks transpired between his arrest and the swearing of the Information, as in the case now before me, Mr. Huha could not even have sought judicial review of the mobility conditions of his Undertaking for that period of time since, absent an Information, no court would have jurisdiction to entertain an application to amend the terms of his release.

[42] Fair trial interests also risk prejudice from the day of an accused's arrest. Like any witness, a defendant's recollection of an incident begins to deteriorate immediately following its occurrence. A defendant's or other witnesses' memory of critical events is not fast-frozen or suspended pending the swearing of an Information. Nor does the cumulative delay that risk compromising a fair trial begin only with the issuance of such formal process.

[43] Wilson J. in R. v. Kalanj, supra, at para. 41, well expresses the argument in favour of an approach to s. 11(b) that construes "charged" as occurring upon arrest or initiating process and, accordingly, proposes measuring "reasonable time" as commencing with that event:

… if s. 11(b) is designed to protect the liberty and security interests of the accused, … then the relevant starting point for the running of time under the section should not be upon the ex parte laying of the information before the justice of the peace but rather when the impact of the criminal process is felt by the accused through the service of process upon him in the form of a summons or notice of appearance or an arrest with or without a warrant. This flexible approach to s. 11(b) seems to me most adequately to give effect to the obvious purpose of the provision.

However, Wilson J., along with Lamer J. (as he then was), wrote in dissent in Kalanj. Three justices joined in the majority opinion.

[44] The accused in the Kalanj case had been arrested and then released without charge or any form of process. An Information criminally charging him was sworn some eight months later. As framed by the majority in the Supreme Court, "the question" was "whether pre-charge delays should be included in the calculation of whether there was an unreasonable delay in bringing [an accused] to trial". More specifically (and particularly as it applies to the case at bar), the core issue was whether the delay between the an accused's arrest and the swearing of an Information charging him or her with an offence is part of the delay contemplated by s. 11(b) of the Charter. The narrow majority of the Kalanj court observed, at para. 11, that "the word 'charged' or 'charge' is not one of fixed or unvarying meaning at law". As held, at para. 16, by McIntyre J., who authored the majority opinion:

[A] person is "charged with an offence" within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It would follow, then, that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial. … Pre-information delay will not be a factor.

As earlier noted, McIntyre J.'s view in Kalanj was expressly affirmed by the Supreme Court in Morin, supra, at paras. 32 and 35:

[T]he period to be scrutinized is the time elapsed from the date of the charge to the end of the trial.

Charge means the date on which an information is sworn or an indictment is preferred.

[45] The rule has not escaped critical judicial comment. For example, in R. v. Egorov, [2005] O.J. No. 6171 (C.J.), Duncan J., in words apposite to the case before me, noted that, unlike the fact pattern in Kalanj:

[I]n the case of release on an appearance notice, promise to appear, undertaking or recognizance before [the] officer in charge and the charge being laid thereafter (i.e., the procedure in section 505 of the Code), it is difficult to see that the accused is not "charged" upon his being subject to the obligations imposed by the release. Indeed the release document itself refers to him as being an "accused" who is alleged to have committed an offence: see forms 9, 10, 11 and 11.1.

Even appellate courts that routinely cite the rule in Kalanj in reviewing claims of unreasonable delay sometime, if inadvertently, articulate an approach that seems more in keeping with that expressed in Egorov. In Morin itself, Sopinka J., in calculating the "length of the delay", referred to the time between the accused being "charged on January 9, 1988" and the completion of her trial. My review of a copy of the original Information makes clear that January 9, 1988 was the date on which the accused Morin was arrested for driving while impaired and with an excessive BAC. The Information charging her with these offences was not sworn until some six days later, on January 15, 1988. Similarly, in R. v. Tran, supra, at para. 23, the Court of Appeal stated that "[p]rejudice may be inferred where the delay between arrest and trial is too long". (Emphasis added.)

[46] The interval between arrest and the swearing of the Information was far too brief in both Morin and Tran to materially affect the assessment of the reasonableness of the overall delay in these two cases. Longer periods of pre-"charge" delay, in the Kalanj sense, may, as suggested in dissent in Kalanj, adversely impact on the s. 11(b)-protected interests of a defendant: security of the person, liberty and a fair trial. Nonetheless, the Kalanj rule remains part of the s. 11(b) firmament. Citing Kalanj, the Court of Appeal, in R. v. K.E., 2013 ONCA 175, at para. 20, recently affirmed that:

[A] person is "charged with an offence" within s. 11, thus s. 11(b) of the Charter, when an information is sworn alleging an offence against him or her. … Time reckoning for the purposes of claims of infringement of the right to be tried within a reasonable time commences with the laying of the information and continues until the completion of the trial.

[47] I appreciate that I am bound by Kalanj. I appreciate, as well, that a campaign to rehabilitate the minority position in Kalanj has met with little if any success: see, for example, R. v. Katrakis, [2013] O.J. No. 1860 (C.J.). Nonetheless, where, as here, the police effectively preclude s. 11(b) consideration of the front-end of an accused's expedition through the criminal justice system by peremptorily postponing the swearing of an Information, there must be some means to reconcile the logic and purpose of s. 11(b) with the force of these weighty authorities. If nothing else, the current police practice in Toronto – and the one to which the defendant before me was subject – creates patent unfairness. For example, imagine an otherwise identically situated accused who is held for a show cause hearing following his or her arrest and then ordered released at a court appearance later the same morning. By virtue of the court attendance, an Information will be sworn sometime in the hours between the arrest and that first appearance. This accused may have only spent a few hours in a police station or courthouse holding cell, and may well be released on terms no more onerous than those binding an accused released from the station on a Promise to Appear or an Undertaking. Yet, unlike the defendant before me, the s. 11(b) clock will begin to tick on the date of his or her arrest rather than, as in the case of Mr. Duszak, some three weeks later or, in the case of other s. 11(b) motions I have entertained and ruling s I have read, several weeks later still. Similarly, and if sufficiently representative, the timelines evidenced in the close to eighty Peel Region Promises to Appear establish that the vast majority of the defendants who are released from the station in that jurisdiction have their Informations sworn – and their s. 11(b) clocks punched – in under two weeks, and clearly sometimes under one week, following their arrests. Can it truly be truly be the law that the scope of an accused's constitutional rights can be defined by the whim, arbitrary practice or convenience of the police?

[48] To many, Wilson J.'s approach reflects a realistic appreciation of the interface between the police and those accused of crimes. Few if any accused persons who are arrested and then released pending their first court appearance have any conception of the legal, let alone constitutional, significance of the swearing of an Information. Their understanding, reinforced by their experience on arrest and the recitals set out in the legally enforceable conditions and undertakings that accompanies their release (here, a Promise to Appear) is that they are alleged to have committed an offence, that they are in criminal jeopardy, that they are required to appear on fixed dates in a court and at a named police station for purposes of the Identification of Criminals Act, and that they are liable to fresh arrest and penal consequences if they fail to comply with the terms of their release. The police cautions routinely provided on arrest include advising a detainee of his or her charge and inquiring whether he or she "wish[es] to say anything in answer to the charge?". It would likely prove difficult to persuade an accused who has just stepped out of a police station after being arrested, cuffed, cautioned as to his or her charge, afforded a right to counsel, compelled to submit to several breath tests, directed to attend court and finally released on conditions that threaten arrest and prosecution for their violation that he or she has not been "charged".

[49] Absent cogent explanation – and, again, there is none forthcoming – the police and Crown cannot defer the commencement of s. 11(b) protection for an accused persons who is arrested and then released from the station by peremptorily postponing both the swearing of his or her Information and first court appearance. Nor can the police and Crown rely on such self-created delay to suspend the provision of disclosure or their own obligations to ensure compliance with s. 11(b). Nor can they effectively manipulate the s. 11(b) framework to expand the window of justifiable intake delay.

[50] Unlike institutional delay, the Supreme Court has never fixed administrative guidelines respecting inherent time requirements. Indeed, in Morin, at para. 42, the Court suggested that local experience would generate a regional "de facto administrative guideline". In R. v. Lahiry, supra, at para. 22, Code J. suggests that a six-week interval is a "reasonable" first appearance date for accused persons such as Mr. Duszak. However, comparative data cast doubt on the continuing appropriateness of this metric. The experience in Peel Region makes clear that most similarly situated defendants can be readily accommodated within two weeks of their arrest and, again, no justification has been tendered or is otherwise apparent for why those arrested for drinking and driving offences in Toronto should be processed with any less dispatch. Most importantly, the Peel data demonstrate that essential disclosure briefs – including both paper and video components – can be made available by an accused's first appearance. Approached generously, there appears no practical reason why a person such as the defendant who is arrested in Toronto and then released by the police pending his trial for a routine drinking-and-driving offence ought not to have:

• The Information confirming his charges sworn within a few days of his arrest and conditional release from the station;
• His first court appearance within four weeks of his release; and
• The essential paper and video/DVD disclosure provided to him on that first appearance.

[51] Restated: irrespective of the date on which an Information is finally sworn, I see no reason why, in a routine case of this nature, the period neutrally attributed to the need to assemble, review and distribute the disclosure materials ought not to commence upon a defendant's release from the station. Whether an Information is sworn the same day or three weeks after an accused's arrest and release, as here, on a Promise to Appear, the essential disclosure package in such cases should be available no later than four weeks after the accused walks out of the police station. Nor can I conceive of any reason why, in the ordinary course, the accused's first appearance should be delayed any further than those four weeks. (See R. v. Yevochka, unreptd., O.C.J. (Moore J.), May 8, 2013, at p. 24.) Investigative or prosecutorial vagaries may warrant some deviation from these norms in individual cases, but the evidentiary burden of justifying any departure should rest with the Crown.

[52] As applied to the evidence before me, other than a police mistake as to holiday scheduling no explanation has been advanced as to why the defendant Mr. Duszak ought not to have been provided with full disclosure (that is, all the police notes, breath test documentation and video evidence, if any) on the occasion of his first compelled appearance on July 2, 2012 – more than six weeks after his arrest. Any delays associated with additional defence disclosure requests may, theoretically, protract the disclosure-portion of the intake process, but those requests and their ultimate fulfillment had no impact on the pace of the proceedings in the instant case. That July 2nd was a holiday mandating an adjournment clearly falls to "actions of the Crown", as do the patent mis-communications between the police and Crown that led to a further two-week adjournment. Indeed, I find that the entire seven-week period between July 2nd and August 20th (when video disclosure was finally provided) is properly attributable to the Crown. In the end, I find that the following six weeks (until the trial date was set on October 1st) are rightly assigned to the neutral "intake" considerations.

[53] Accordingly, of the 3.7 months between the swearing of the Information and date the trial was finally scheduled, some eight weeks are characterized as of neutral "intake" value for purposes of s. 11(b) reckoning and the remaining seven weeks are attributed to the actions of the Crown. (Indeed, even this division is a Crown-favourable artifact of the police manipulation of the intake process. Had no more than four weeks transpired between the defendant Duszak's arrest and his scheduled first appearance and had the trial date still not been scheduled until October 1, 2012, approximately nine weeks would be credited to the Crown and only six to inherent intake considerations.)

(ii) Inherent Defence Requirements

[54] Morin, at para. 47, restricts "institutional delay" to "the period that starts to run when the parties are ready for trial but the system cannot accommodate them". (See, also, R. v. N.N.M. (2006), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 70, R. v. Lahiry, supra, at para. 26 and R. v. Tran (2012), 288 C.C.C. (3d) 177 (Ont. C.A.), at para. 32.) Translated, the institutional delay clock is not triggered when counsel is ready to fix a date for trial but, rather, when he or she is available and prepared to conduct that trial. The time necessary to accommodate such preparation and availability is generally construed as part of a case's "inherent time requirements": R. v. Lahiry, supra, at paras. 25-30.

[55] In Lahiry, at para. 31, Code J., rightly observed that, "in routine drinking and driving cases, the amount of time needed to prepare for a short trial is not great". The absence of a clear record as to counsel availability in Lahiry and similar cases led many courts to deduct from two weeks to two months from the interval between a trial and the date on which it was set to allow for defence counsel preparation and availability. No such legal fiction need be invoked in the matter before me. Counsel for the defendant clearly indicated his office's immediate and continuing trial availability when the trial date was fixed on October 1, 2012 and readily accepted the earliest date afforded by the trial co-ordinators' office. Given the adequate opportunity to review the disclosure brief and consult with the defendant, the routine nature of the prosecution, and the notoriously vast experience of the defendant's counsel in similar cases, I have no reason to doubt the sincerity of his proffer. Indeed, on the hearing of this motion Crown counsel fairly accepted that the defendant's attorney was prepared to proceed on October 2, 2012.

[56] I appreciate that the "Lahiry" methodology respecting the calculation of the limits on institutional resources and the legally proper characterization of any interval assigned to counsel's preparation and availability is not universally shared. In R. v. Sikorski, supra, for example, Nordheimer J., at para. 98, thought it "preferable … to clearly delineate the full period of time for which the courts are unable to provide dates for preliminary hearings or for trials and to characterize that delay in the s.11(b) analysis for what it is, institutional delay." This debate has been canvassed elsewhere. (See, for example, R. v. McShane et al., 2013 ONSC 5645, at paras. 45-48.) There is, admittedly, a certain legerdemain, if not outright artifice, in subtracting defence counsel's trial readiness from a period of systemic delay that, under almost any circumstances, would not impact the length of the interval between a defendant's trial and the date on which it was set. Further, from the defendant's perspective and, respecting fair trial concerns, that of the public as well, any prejudicial effect on the interests protected by s. 11(b) is neither suspended nor mitigated during the period nominally assigned to defence counsel's preparation and availability. That said, and with due respect, Nordheimer J.'s critique of Lahiry was as much intended to advance a public education agenda as to address the s. 11(b) issues immediately before him. More importantly, it is inconsistent with the Supreme Court and appellate authorities that presage Lahiry and the subsequent Court of Appeal endorsement of Lahiry on this very point in R. v. Tran, supra. Further still, Nordheimer J. ultimately agrees, at para. 96, that, "in the end result, the availability of counsel must nonetheless be considered in determining the reasonableness of the period of delay". In any event, and finally, the circumstances of the matter before me obviate any interval being attributed to the inherent time requirements of the case on account of defence counsel's preparation needs or scheduling conflicts.

(iii) Inherent Crown Requirements

[57] In R. v. Thomas, [2011] O.J. No. 6049 (S.C.J.), at para. 35, MacDonnell J. observed that:

Reasonable preparation time is part of the inherent time requirements of a case, and the time reasonably required by both the Crown and the defence has to be taken into account. [Emphasis in original.]

(See also: R. v. Murphy, 2013 ONSC 6272, at paras. 25-27.) Two aspects of the Crown's necessary trial preparation are here of moment.

[58] First, some "inherent" interval is inevitably occasioned by the Crown's duty to arrange for the attendance of witnesses once the trial date is set. No longer than a two-week period need be assigned to this task but, applying the logic of Lahiry and Tran, it is part of the inherent, and thus neutrally charged, requirements of almost any case and one that cannot be addressed until the trial date is fixed.

[59] The second inherency rests on the Crown's obligation to respond to Charter motions brought by the defence. In addition to the instant s. 11(b) motion, the defence filed an application for constitutional relief in reliance on ss. 7, 8 and 9 of the Charter. The former motion was filed (on October 21, 2012) and heard (on July 5, 2013) well in advance of the defendant's trial date – as directed by the Rules or Practice Directions of this Court. Nothing before me suggests that either the pre-trial scheduling of the s. 11(b) motion or the inclusion of additional Charter applications by way of a blended proceeding delayed the trial. As I recently said in R. v. Rueben, 2013 ONCJ 167, at para. 28, with respect to the appropriate consideration of defence-initiated motions in the context of a s. 11(b) inquiry:

There is no fault or impropriety in advancing such claims … . However, given the contemplation of … Charter motions, no trial could occur until the defence pleadings and those of the Crown in response, as directed by the rules of this court, were properly filed. Put otherwise, no matter how eager the defence was to proceed to trial, the pursuit of Charter relief would inevitably delay the occasion of the trial until some date after the exchange of filings.

Said more plainly, perhaps: even if the defence was prepared to immediately proceed to an immediately available trial date and just as immediately filed its Charter materials, the Crown would still be entitled to a reasonable opportunity – reckoned as an inherent requirement of the case – to review, consider and respond to the defence application. (See R. v. Tran, supra, at para. 40, and R. v. Murphy, supra.)

[60] Counsel avers that the mechanical nature of the Charter applications and the frequency with which he is called upon to draft them demanded no more than a day of his time to prepare and serve them upon the Crown respondent. Accepting this, some period is still "inherently required" to permit the Crown to respond to the defence motions. That period is then properly transferred from the "institutional" to the "inherent" columns of the s. 11(b) accounting. Although too often honoured in the breach, the Rules of the Court prescribe 15 days for a Crown response to such motions. For reasons that remain opaque, Crown counsel asserts that "in the circumstances of this case … at least 45 days" should be deducted from institutional delay on this basis. Defence counsel, on the other hand, takes the position that its Charter filings should not impact on the calculation of institutional delay as, viewed realistically, the Crown response time has no effect on the defendant's trial date, court-made rules cannot subvert an accused person's Charter rights, and the provincial variability of court filing rules, if any, creates an invidiously uneven application of s. 11(b) protection across the country.

[61] The potential merit of these defence arguments will have to be debated elsewhere. Given my view of the appropriate disposition of this application, acceptance of the defence position would not affect the ultimate result. In any event, and without presuming to decide the matter, I do not see the existence of court-made procedural rules or their interprovincial variability as legitimate sources of complaint: the issue, rather, is whether the time reasonably required to prepare a response to a defence motion – whether governed by formalized rules or common law doctrine – is or is not inherently required. And, in this regard, I see no principled reason to treat Crown response time differently than that prescribed by Lahiry for defence preparation.

[62] In my estimation, some three weeks is rightly assigned to the inherent time requirements of the case to allow for the Crown's response to the defence Charter application. This period runs concurrently with those two weeks accounted for by the Crown's obligation to secure the attendance of necessary witnesses: R. v. N.N.M., supra.

(iv) Summary of Inherent Time Requirements

[63] Some eight weeks of "intake" are attributed to the inherent time requirements of the case, as are three concurrent weeks for the Crown to secure the attendance of its witnesses and respond to the defence ss. 7, 8 and 9 Charter applications. In total, then, eleven weeks of inherent time requirements are effectively neutralized in the global s. 11(b) calculation.

(c) Limits on Institutional Resources

[64] Institutional delay describes the period between the date on which an accused's trial is set (here, October 1, 2012) and it's scheduled occurrence (here, September 3, 2013), less the time required to accommodate any necessary preparation. Subtracting the three weeks assigned to this latter consideration in this case, the institutional delay here amounts to ten months and nine days, or 10.3 months. As already noted, Morin set an administrative guideline of eight to ten months for tolerable delay attributable to a court's limited capacity to absorb trials due to institutional factors such as the compliment of judges, court staff and physical facilities. In relatively simple cases, such as the one before me, Ontario courts have increasingly applied "the bottom of the Morin guidelines, rather than … the extreme upper limits" in assessing institutional delay: R. v. Stephens, [2007] O.J. No. 3500 (S.C.J.), at para. 67. (See, also, R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.) and R. v. Osei, [2007] O.J. No. 768 (S.C.J.), at paras 39-40.) Some jurists take a contrary view on the basis that drinking and driving prosecutions have grown more complex and lengthier than at the time the Morin guidelines were framed, and that the imposition of "different standards" may more accurately reflect this changed reality: see, for example, R. v. Lahiry, supra, at paras. 159-160. Most judges, however, are disinclined to extend any greater constitutional latitude than that prescribed by Morin to cases which, as here, even Crown counsel agrees is properly characterized as "simple". As said by Hogan J. in R. v. Brickman, unreptd., July 25, 2013, at para. 26, respecting a factually similar period of institutional delay:

The difficulty with changing the standards, especially for simple cases, is that the delay simply gets longer. No one feels compelled to take appropriate measures to shorten it. We have gone from 8-10 months in Morin's day to the present case delay of 12 months – for an uncomplicated one-day trial. This is not acceptable.

See also, R. v. Sikorski, supra, at paras. 68-69.

[65] Premised on years of local experience, a protocol has developed in this jurisdiction regarding institutional delay in routine drinking and driving prosecutions. On canvassing the accumulating authorities, Hryn J. observed that, "There is current case law specific to the Old City Hall, that a reasonable delay with respect to drinking and driving cases should be at the lower end of the range of eight to ten months set out in Morin": R. v. Salehji, [2010] O.J. No. 4889 (C.J.), at para. 10. (See also: R. v. Leung, [2012] O.J. No. 1874 (C.J.), at para. 104 and R. v. Taylor, 2013 ONCJ 138, at paras. 28-30.) This court's reduced tolerance for institutional delay accords with Sopinka J.'s recognition in Morin, at para. 52, that "when the case load has been constant over a substantial period of time the delay [of eight to ten months] envisaged by the guideline may be regarded as excessive".

[66] Here, the first trial date offered by the court was just over eleven months after counsel for the Crown and defence scheduled the defendant's trial. This period of nominal institutional delay is reduced to 10.3 months upon deduction of the time credited to inherent requirements. Given, as well, the delay attributable to the conduct of the Crown (some seven weeks), the question of s. 11(b) compliance commands consideration of the prejudice arising from the total justiciable delay of 12 months. Whatever the flexibility of the Morin guidelines for institutional delay, Code J. is undoubtedly correct to describe them as a "sliding scale as they can move up or down depending on the presence or absence of actual prejudice": R. v. Richards, 2010 ONSC 6202, [2010] O.J. No. 4958 (S.C.J.), at para. 32. (See also, Morin, supra, at para. 53.) Accordingly, it is to the factor of prejudice and, then, the ultimate balancing to which I now turn.

G. Prejudice

[67] The defendant's liberty interests were not impaired as result of any delay attending his trial. He was released from the station and without terms that restricted his mobility. Other than attending the hearing of this motion, the defendant's court appearances have all been by way of delegation. Similarly, and despite the defendant's sworn avowals, I see little reason for palpable concern about any jeopardy to the defendant's fair trial interests as a result of the protraction of his prosecution. I accept that the defendant's memory of the salient events has likely deteriorated since their occurrence, but promptly retaining counsel likely afforded the defendant an early and forensically focused opportunity to preserve his recall. I note, as well, that defence counsel has not even speculated as to spheres of potential memory loss, let alone proffered tangible examples.

[68] The impact of the delay on the defendant's security interests finds firmer s. 11(b) purchase. His charges undoubtedly precipitated his reported anxiety, but there comes a point where the prejudice flowing from a criminal charge is aggravated by the delay in its resolution – as, I find, occurred in this case. As said in R. v. Egorov, supra, at para. 7, "prolongation of proceedings can cause what was initially charge prejudice to become prejudice caused by institutional delay". (See also: R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (Ont. C.A.), at para. 33 and R. v. Pusic (1996), 30 O.R. (3d) 692 (S.C.J.), at para. 173.)

[69] The defendant quickly retained counsel, pressed fruitlessly for prompt disclosure, repeatedly expressed his concern about the slow pace of the prosecution, and seized the first available trial date offered by the court. His growing sleeplessness and anxiety led to visits to his physician and a diagnosis that required treatment through stress-management and prescription drugs. The anxiety concerns required greater medical intervention over time, adversely affected the defendant's academic performance and, in the end, generated an unchallenged physician's assessment that the defendant "has been experiencing prolonged anxiety and stress related to his ongoing court case". In light of this history, I find that the delays in the defendant's proceeding have taken a palpable toll on his security interests. In the language of s. 11(b) jurisprudence, "actual" or "specific" prejudice has been occasioned by the delay.

[70] There is also a reasonable basis for consideration of "inferred" prejudice. As I wrote of analogous circumstances in the case of R. v. Taylor, 2013 ONCJ 138, at para. 42:

I think it "reasonable", as said in R. v. Godin, supra, at para. 34, "to infer … that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice" to the defendant's security of the person "in the sense", again citing Godin, at para. 30, "of being free from the stress and cloud of suspicion that accompanies a criminal charge". … Even subtracting the neutral intake period and allowing for reasonable institutional delay, the defendant's duress extends more than four months (or approximately 50%) beyond that contemplated by the appropriate guideline – sufficient, in my view, to acknowledge at least a modicum of inferred prejudice.

H. Balancing

[71] Close to 15 months span the gap between the date the Informations charging the defendant were sworn and his scheduled trial date. The delay has negatively impacted the security interests of the defendant that s. 11(b) is intended to safeguard. Approximately 10 months of this delay is attributable to institutional factors and a further 2 months to the conduct of the Crown. These twelve months well exceed the appropriate guidelines for simple trials such as the defendant's. Further, the delay attributable to Crown conduct is weighed more seriously in the s. 11(b) calculus than that credited to systemic factors. As said in R. v. Yun, [2005] O.J. No. 1584 (S.C.J.), at para. 42:

[While w]e tolerate a degree of institutional delay because it is unavoidable. … delay caused by the Crown is particularly troubling. … [T]he interests protected by s. 11(b) are affected in a fundamentally more unacceptable fashion when the police or Crown fail to do what they are expected to do and there is no acceptable excuse for the delay. [Emphasis added.]

See also: R. v. McNeilly, [2005] O.J. No. 1438 (S.C.J.), at para. 72, R. v. Brown, [2005] O.J. No. 2395 (C.J.), R. v. Chrostowski, [2006] O.J. No. 1306 (S.C.J.), at para. 61, R. v. Stephens, supra, at para. 68, and R. v. Panko, 2007 ONCJ 212, [2007] O.J. No. 1867 (C.J.), at para. 11.

[72] The s. 11(b) balancing requires consideration not only of a defendant's interests but those of society as well, including the public interest in having cases, particularly serious ones, determined on their merits. Drinking and driving offences are universally and rightly regarded as "serious": R. v. Lahiry, supra, at para. 89. At the same time, no category of offences is immune to s. 11(b) scrutiny, nor are all drinking and driving offences equally grave. The defendant, it is true, is alleged to have had a relatively high BAC at the time of his arrest. He was not, however, charged with driving while impaired, displayed no indicia of impairment other than an odour of alcohol, and other than speeding none of the aggravating circumstances frequently associated with drinking and driving offences – erratic driving, collisions and the injury or objective endangerment of others – appear in the presenting fact pattern.

[73] Some measure of the gravity of a charge may be inferred from the seriousness with which the state treats its prosecution. Goodman J. commented on this principle in R. v. Krywucky and Segal, 2013 ONSC 1112, at para. 197:

I agree that society has a heightened interest in seeing that serious offences are tried, such as we find in this case. The corollary to that point is that there is a corresponding obligation on the Crown to ensure that trials for such serious offences are held in a timely manner.

(See also: R. v. Chrostowski, supra, at para. 42 and R. v. Brickman, supra, at para. 28.) Despite repeated entreaties from defence counsel, the police and Crown made no apparent effort to honour the defendant's right to a trial without unreasonable delay. Disclosure was inexplicably delayed and fractured. The first trial date offered by the court was well beyond that countenanced in this jurisdiction, and despite the palpable risk of s. 11(b) transgression the Crown made no effort to expedite the trial or offer earlier alternatives as other cases collapsed. As is too frequently the case, the only occasion when the Crown manifested any real concern for either trial delay or the seriousness of the charges was in the course of defending this application. As I have noted elsewhere, it is difficult to reconcile the Crown's sudden embrace of the gravity of the prosecution with the indifference that characterized its prior conduct.

[74] I am, in the end, satisfied that the defendant's right to a trial within a reasonable time has been infringed. More than 15 months have been consumed in processing a simple case that, accounting for its intake requirements and systemic limitations, ought never to have stretched beyond ten months. The further delay actually prejudiced the defendant's security interests. Balancing the relevant factors, the defendant's s. 11(b) rights have been infringed. In the result, the charges he faces are stayed.

I. Conclusion

[75] Crown counsel has fairly conceded that the defendant's two charges are subject to the same analytical resolution. Accordingly, and for the reasons heretofore recited, I find the defendant's s. 11(b) rights have been abridged and that the appropriate remedy, which I order, is a stay of the two charges on which he was arraigned.

Released on November 4, 2013.

Justice Melvyn Green