Court Information and Parties
Information No. 11 – 182
Ontario Court of Justice (at Cayuga, Ontario)
Between:
Her Majesty the Queen
- and -
Terry MacArthur
Counsel:
- Ms. A. Paparella for the Crown
- Mr. A. Little for Terry MacArthur
Reasons for Judgment on an 11(b) Application
NADEL, J.:
Introduction
[1] On April 6, 2011 the defendant was charged with impaired driving and being over 80. An information was sworn on April 13, 2011. The allegations arise from a single vehicle property damage accident. The Crown alleges that the defendant was the sole occupant of the vehicle. On January 30, 2013 this trial started with the defendant's arraignment and plea of not guilty to the impaired driving count. If that charge survives this application then a two-day trial will commence on March 7, 2013 and continue on May 1, 2013.
[2] The period between the swearing of the information and the anticipated conclusion of the trial is 24 months and 19 days. This period is patently excessive for a summary conviction prosecution. An examination into the reasonableness of that period is called for.
[3] A brief partial history of the matter follows:
- on May 27, 2011 a first trial date was set for a half-day trial on September 14, 2011;
- on September 27, 2011 a second trial date was set for a one-day trial on March 28, 2012;
- on February 28, 2012 a third trial date was set for a two-day trial on November 15 and 16, 2012; and,
- on November 13, 2012 a fourth trial date was set for a two-day trial March 7, and May 1, 2013.
[4] The first trial, scheduled to commence on September 14, 2011, did not proceed primarily because the Crown had learned that the witness who identified the defendant as the driver had died. The Crown brought a Khan application returnable on the trial date without formal and full notice to the defendant. The responsibility for that adjournment and the apportionment of the time to the next trial date is contested.
[5] The trial did not proceed on March 28, 2012, the second date set for it, because the Officer-In-Charge, who received the deceased's statement, underwent abdominal surgery on February 27, 2012. He was unavailable to testify until on or after April 9, 2012. The apportionment of the time between the second trial date of March 28, 2012 and the third trial dates of November 15 and 16, 2012 is contested.
[6] The trial did not proceed on November 15 and 16, 2012, the third date set for it, because the defendant and his counsel parted ways and new counsel was not available on these dates. On October 31, 2012 the defendant's original counsel was removed as counsel of record and Mr. Fedorsen became counsel of record. On November 5, 2012 the defence applied for and received an order vacating the third trial dates of November 15 and 16, 2012 as defence counsel was unavailable to conduct a defence on those dates. The matter was then adjourned to set new dates for trial. That occurred on November 13, 2012 when new trial dates of March 7 and May 1, 2013 were set, along with a half-day 11(b) application for January 30, 2013. While the responsibility for the adjournment of the third trial date is not contested, the apportionment of the time to the fourth trial dates is.
The Respective Positions
[7] The defence position is that Crown and/or systemic delay to November 16, 2012, (being the last day of the third trial) totals 14 months and three days. The Crown's computation of systemic delay to November 16, 2012 is 11 months and 27 days. The parties agree that the defence did not waive any of the periods to November 16, 2012. Additionally, both sides agree that the period from the swearing of the information on April 13, 2011 to May 17, 2011, (when the first trial date was set,) is a neutral intake period. Other than this, as noted before, they disagree about who or what caused the adjournments of the first trial date on September 14, 2011 and how the time from that date to November 16, 2012 should be characterized and apportioned.
The Morin Balancing
[8] R. v. Morin, [1992] 1 S.C.R. 771 at [31] directs that whether one's right under s. 11(b) has been infringed cannot be determined by "the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay." Some delay is inevitable. "The question is, at what point does the delay become unreasonable? … [I]t is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:
the length of the delay;
waiver of time periods;
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
prejudice to the accused."
The Morin Guidelines
[9] For the general guidance of trial courts the Supreme Court of Canada has suggested "a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts." (Morin at [55] and [57]) The Court envisaged several ways in which these initial guidelines might be adjusted: (i) regional adjustment of these guidelines by trial courts "to take into account local conditions"; (ii) timely adjustments "to reflect changing circumstances"; and, (iii) supervisory adjustments by provincial appeal courts to achieve uniformity subject to the necessity of taking into account the special conditions and problems of different regions in the province. (Morin at [57]) Notwithstanding these prospects for adjustment, none have occurred to this point in time so that the eight to ten month guideline for a single-stage summary conviction Provincial Court matter remains the applicable guideline in Ontario.
[10] Guidelines have two purposes: they identify that there is a limit to tolerable institutional delay and their promulgation avoids protracted re-litigation of that recognition. (Morin at [50]) The guidelines cannot be applied mechanically and unyieldingly. Their application is an exercise of judicial discretion. (Morin at [51]) The Supreme Court gave specific directions to trial judges on the appropriate use of guidelines at [52] of Morin, particularly in jurisdictions experiencing "rapidly changing conditions." I am of the view that Haldimand is not experiencing rapidly changing conditions. Rather, in my view, the situation in this jurisdiction can be described as one where "the case load has been constant over a substantial period of time [so that] the delay envisaged by the guideline may be regarded as excessive." (Morin at [52])
[11] Morin at [53] also instructs that the existence of actual or substantial prejudice is a factor that ought to shorten the period of acceptable systemic delay while the guidelines may be applied to cases in which prejudice is absent or slight.
The Submissions of the Crown
[12] The Crown's submission is that the guidelines are merely that, guidelines. In the Crown's submission given the inherent time requirements of this case, (which includes a Khan application, an anticipated s. 8 Feeney application by the defence, an 11(b) application and the potential for testimony being called from more than ten witnesses during the Crown's case,) an increase of one month and 27 days beyond the top end of the Morin guidelines is not unreasonable, especially when no actual prejudice to the defendant is weighted on the scales. The Crown urges consideration of the "Epilogue" in R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071, which can be read as suggesting an expansion of the guidelines.
[13] More specifically, the Crown urges a reduction of systemic delay to the first trial date in September of 2011 because a July date was offered but refused by the defendant. Further, the Crown submits that the systemic delay computed to each trial date after the first one should be reduced by two inherent factors: first, the time required for a judicial pre-trial prior to each of those subsequent trial dates; and second, an attribution of some "calendar clearing" and preparation time identified by Justice Code in Lahiry and confirmed as appropriate by the Court of Appeal in R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83.
[14] Further, the Crown submitted that all of the time after the loss of the November 16, 2012 trial date must be excluded from systemic delay as having been lost by the actions of the defence.
[15] Finally, the Crown submitted that there are specific local factors in play at Cayuga, which is a jurisdiction that only has a judge assigned to conduct trials one day each week. As a result, extraordinary efforts needed to be made through the cooperation of the local administrative judge in Niagara North with the trial coordinators of Cayuga and Niagara North to obtain prompt trial dates for this two-day matter after the adjournment of the November 2012 trial dates. This local situation is a factor that ought to enlarge a period of systemic delay beyond the guidelines as being reasonable for this case.
The Submissions of the Defence
[16] The defence position is that the Morin guidelines ought to guide the court's decision. This case may require more court time than some drinking and driving cases but that does not call for an expansion of the guidelines. This prosecution is merely one count of impaired driving. The fact that the Crown may call more witnesses than is usual does not make this case inherently more complicated.
[17] The defence submitted that the Crown's reliance on Justice Code's "Epilogue" in Lahiry was misplaced for a number of reasons but only one needs mention here; namely, that Lahiry is clearly distinguishable as all of the periods of systemic delay identified by Justice Code in those appeals were within the guidelines. Here, by the Crown's own admission, the top end of the guidelines is exceeded by almost two months.
[18] The defence objected, rightly in my view, to any reduction in systemic delay to the first trial date because the defendant's counsel rejected a July date on which he was unavailable. As Mr. Little pointed out, the Crown rejected a date a week later because it was unavailable. September 14, 2011 was the first date offered by the court that was available to both sides.
[19] In addition, Mr. Little made all of the following submissions:
- some modest portion of systemic delay should be attributed to the period after the loss of the third trial date when his firm came on record;
- no reduction from systemic delay ought to be made when a pre-trial date is set at the same time as a trial date as no "inherency" allowance needs or ought to be made in that circumstance;
- the essential systemic error that is attributable to the Crown is its failure to identify this prosecution as a case in need of remedial attention after the loss of the second trial date; and,
- given the documented desire of the defendant to obtain an early second trial date and given how extensively the total systemic delay exceeds the guidelines, despite no actual prejudice, the Court should infer that he has suffered prejudice to his fair trial and his security of his person interests so that the Morin balancing is readily tipped in favour of the finding of a s. 11(b) breach that requires the remedy of a stay to be entered.
Reasons for Judgment
[20] Both sides acknowledge that there is an element of arbitrariness and hence artificiality to the ascription of time periods to some of the Morin factors. Notwithstanding, what is a reasonable period of systemic delay depends upon an analysis of the total period of time, (from the swearing of the information to the anticipated end of the trial) using the Morin taxonomy. On the analysis of this record, I am of the opinion that for this single count of impaired driving, where the Crown has proceeded summarily, the defendant's 11(b) right to a trial within a reasonable period of time has been infringed and the charge is therefore stayed.
[21] I arrive at that conclusion by virtue of my own computation of systemic delay, together with the Crown's concession that the systemic delay in this case exceeds the guidelines by almost two months. I also take into account that this was a single count of impaired driving and that on September 12, 2011, the Crown advised the defence that it would not be proceeding on the over 80 allegation.
[22] This was a straight forward allegation of impaired driving. There was no allegation of personal injury. The Crown's theory was that the defendant was a driver who crashed his car and fled the scene. Although a Khan application came to be required that did not make this a complicated prosecution, especially given the clarifying judgment of R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Moreover, the major portion of the systemic delay occurred because the Crown elected not to use the full day of trial time available on March 28, 2012, despite having more than 10 witnesses to call beyond the unavailable Khan witness. Had the Crown not given up that day of trial time this case would likely have been completed within the Morin guidelines. That explains my ruling. Notwithstanding, I have charted and discuss the chronology of this prosecution as follows.
Chronology - First Trial Date
| Date | Purpose | Comment |
|---|---|---|
| April 19/11 | First appearance, disclosure provided; no screening form available, adjourned three weeks to May 10/11 | Intake |
| May 10/11 | Mr. P. Osier (Osier) retained; adjourned at request of defendant to May 17/11 discuss settlement. | Intake |
| May 17/11 | Osier files a designation and a trial date is set for a half-day trial on September 14/11 | Each side agreed to this trial date and each side estimated that the trial would take a ½ day of court time. |
[23] The period from April 13, 2011 through to May 17, 2011 when the first trial date was set is a neutral intake period.
[24] Prior to the discussions and analyses in R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 and R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 the whole period of three months and 28 days between May 17, 2011 and September 14, 2011 may well have been ascribed to systemic delay. It is now clear that some period should be ascribed to the inherent time requirements of the case to allow defence counsel to clear his calendar and to conduct the necessary preparation work required for a trial. I assess this period for preparation at one month. Therefore, the systemic delay to September 14, 2011, the first trial date, is two months and 28 days. That trial did not proceed. What occurred in and around September 14, 2011 is charted below and discussed subsequently.
Chronology - First Trial Adjournment
| Date | Purpose | Comment |
|---|---|---|
| Sept. 1/11 | The assigned Assistant Crown, Mr. C. Peters (Peters) advises Osier, by telephone, that an essential Crown witness has died and that the Crown will seek to adduce his evidence via a Khan application. | |
| Sept. 12/11 | Peters faxes a Khan application to Osier at 3:54 p.m. and also advises Osier that the Crown will not be proceeding on the over 80. | |
| Sept. 14/11 | Defence seeks to vacate the trial date and adjourn the trial due to the recently served Khan application. In addition a new witness statement was recently served and that, too, is a basis of the defence request for an adjournment. The case is adjourned to September 27, 2011 to find a new trial date. | This was wholly a defence request for adjournment. The finding of fact is explained subsequently. |
| Sept. 27/11 | A second trial date is set for March 28, 2012 set for a trial estimated to take one day. In addition, a judicial pre-trial conference is scheduled for October 17, 2011 and a confirmation hearing to confirm trial readiness is set for January 11, 2012. |
[25] The first trial date was adjourned at the request of the defence. The Crown agreed that the adjournment was appropriate and consented. The dates on offer for this second trial date were not identified but described by defence counsel as being "way into next year" so he asked that the matter be adjourned to September 27, 2011 to speak to the trial coordinator to get an earlier trial date. On September 27, 2011 a second trial date of March 28, 2012 was set for a one-day trial, six months after the first trial date of September 14, 2011.
[26] Mr. Little urges that the adjournment of the first trial date was caused by the failure of the Crown to keep track of their witnesses or to ensure that subpoenas were issued and served in a timely fashion. I disagree. There is no evidence to support that submission. It is mere speculation and not a conclusion that can be reasonably inferred. All that this record shows is that the Crown learned of the death of its witness and so learned of the need to employ a different tactic to obtain that missing evidence about two weeks before the first trial date. The Crown advised the defence of those developments on September 1, 2011.
[27] In my view, the Khan application did not change the nature of the case. If anything, given the Crown's jettisoning of the over 80, the case was a simpler one. Nothing precluded the defence from opposing the Khan application on the technical ground of lack of notice under the rules. Nothing precluded the defence from seeking to adjourn some or all of its cross-examination of the Khan witness. In fact, the defence was not ready for trial as it admitted in an exchange of email sent by defence counsel to the Crown on September 13, 2011. While that defence counsel attempted to secure a second trial date within the 2011 calendar year his request to adjourn the trial for about a month is of no significance because a trial cannot be arranged for and shoe-horned into an existing trial docket in that kind of time-frame barring serendipitous and unlikely circumstances.
[28] As a result of the defence's request to adjourn the first trial date I am of the view that much of the period between the first and second trial dates is not systemic or institutional delay. Rather, much of that delay was occasioned by actions of the accused in seeking to adjourn the first trial date.
[29] In addition, I agree with the Crown's submission that further inherent preparation time ought to be deducted on each of the occasions when new trial dates were set in this case because the parties needed to "gear up" again. Finally, and contrary to the submissions of Mr. Little on the point, in my view Morin decides that judicial pre-trials are part of the inherent time requirements of a case.
[30] Barring defence waiver and intake periods which are generally precisely computable, there is an element of arbitrariness to the assessments to be made. Factoring in the time required to conduct a pre-trial, the time required for trial preparation, the time lost by this defence request for adjournment and the time lost because the Crown consented to the defence request for adjournment in these circumstances, I ascribe half of the period from September 14, 2011 to March 28, 2012 to systemic delay; that is to say, three months and seven days. Hence, the total systemic delay to March 28, 2012 was six months and five days, (give or take a day or two.)
[31] The second trial did not proceed on March 28, 2012. The next chart outlines what occurred. The matters will be addressed thereafter.
Chronology - Second Trial Adjournment
| Date | Purpose | Comment |
|---|---|---|
| Oct. 17/11 | A judicial pre-trial was held. The matter remained a one-day trial. | |
| Jan. 11/12 | A confirmation hearing was held. Mr. Osier said the matter is still a trial that will take 3/4 of a day. The Crown confirmed that all officers are required and available. | |
| Feb. 8/12 | The Crown applied to adjourn the March 28, 2012 trial date as the arresting officer, (the officer who received the Khan evidence,) was having surgery and would not be available on the March 28, 2012 trial date. The application was opposed by the defence. | The application was adjourned to allow the Crown to respond to several questions about the application posed by the bench. |
| Feb. 22/12 | The Crown provided further information to a different judge then presiding and the application was allowed. The matter was adjourned to February 28, 2012 to set a new third trial date. | The trial time required was expanded by both sides and the Crown did not want to use the March 28, 2012 date that was available for the first day of this trial. |
| Feb. 28/12 | A third trial date was set for November 15 and 16, 2012. A judicial pre-trial and confirmation hearing was set for June 27, 2012 and the case adjourned to that date. |
[32] The March 28, 2012 trial date was confirmed on January 11, 2012. On January 12, 2012 the Officer-In-Charge of the prosecution (P.C. Elviss) became scheduled for surgery in late February. As a result, he was unavailable to give evidence at the March 28, 2012 trial date. The Crown learned of his unavailability and brought a motion returnable on February 8, 2012 seeking to adjourn the trial until after April 9, 2012 when Elviss would be available to testify. That application was adjourned to February 22, 2012 when it was granted. The trial date of March 28, 2012 was vacated. The case was remanded to February 28, 2012 when two days for trial were set on November 15 and 16, 2012.
[33] These events bear upon the computation of systemic delay. On February 22, 2012 both the Crown and the defence continued to estimate trial time at one day despite the proposed Khan application and what might be called a Feeney or trespass application, which the defence broached but did not formalize. Both sides ultimately agreed that this matter would take a day and a half. Subsequently two days were reserved in November. Even though the Crown anticipated calling ten witnesses, (other than Elviss,) the Crown abjured any use of the full day of trial time available on March 28, 2012. The defence took no position with respect to the requested adjournment but essentially agreed that the case should not be split between separated dates ("I don't think any of us like split trials, and if it can be kept together it should be.") The adjournment was granted on February 22, 2012 and the March 28, 2012 one-day trial date was vacated. As the trial coordinator was not available on February 22, 2012 the matter was remanded to February 28, 2012 when the November 15 and 16 trial dates were set, along with a further judicial pre-trial date of June 13, 2012.
[34] A portion of this trial, (P.C. Elviss' evidence on the trial proper and on the Khan application,) had to be delayed until on or after April 9, 2012 while Elviss recovered from abdominal surgery. The loss of trial time from March 28, 2012 to April 9, 2012 and some reasonable period thereafter is clearly neutral as resulting from unexpected illness. (see R. v. A.J.W., 2009 ONCA 661, [2009] O.J. No. 3814 at [35])
[35] However, what I find most significant is that the Crown, which has the obligation to bring the accused to trial, willingly gave up using any of the time reserved for this case on March 28, 2012. The Crown must have necessarily appreciated that the trial would be inevitably delayed as a result of the action they took by rejecting that date for use. Moreover, according to a Crown submission detailed previously, extraordinary efforts apparently needed to be made to obtain dates for a prompt two-day trial in this jurisdiction. Hence, by electing not to use the one day that was available, (at a time well within systemic guidelines,) the Crown was intentionally flirting with 11(b) disaster.
[36] The period from March 28, 2012 to November 16, 2012 is seven months and 20 days. P.C. Elviss' surgery had no effect on the setting of the March 28, 2012 trial date so that it cannot reduce the accumulated systemic delay to that point. He was available to testify on and after April 9, 2012. His testimony may well have been the only testimony required to complete the Crown's case, had it elected to call evidence on the March 28, 2012 trial date. In these circumstances I ascribe six months of the period between March 28, 2012 and November 16, 2012 to systemic delay making the total accumulated period of systemic delay to November 16, 2012 to be 12 months and five days.
[37] The trial did not take place on November 15 and 16, 2012. What occurred is charted below and discussed thereafter.
Chronology - Third Trial Adjournment
| Date | Purpose | Comment |
|---|---|---|
| June 13/12 | A further judicial pre-trial was held and the case remanded to June 27, 2012 to allow discussion of the issues broached. | |
| June 27/12 | The trial dates of November 15 and 16 remain assigned for this prosecution with a confirmation hearing set for October 3, 2012. | |
| Oct. 3/12 | The Crown confirmed it will proceed with a Khan application and Mr. Osier indicated that he will pursue a s. 11(b) application. | The defence's proposed 11(b) application required an abridgment of time order. The matter was adjourned to October 17, 2012 as a result. |
| Oct. 17/12 | There was further discussion of the proposed 11(b) application and the matter was adjourned to October 22, 2012. | |
| Oct. 22/12 | Mr. Osier withdrew the 11(b) application and the matter was adjourned to the first day of the two-day trial, scheduled to commence on November 15, 2012. | |
| Oct. 31/12 | Osier applied to be and was removed as counsel of record for the defendant and Mr. J. Hawkins, for Mr. F. Fedorsen, was present and went on record. The matter was adjourned to November 5, 2012 to allow new counsel to apply to vacate the November trial dates as new counsel was not available for those dates. | |
| Nov. 5/12 | A formal defence application to adjourn the trial scheduled for November 15 and 16, 2012 was filed in St. Catharines, before the judge assigned to conduct the trial on those dates. The defence application to vacate those trial dates (as Mr. Fedorsen was not available on the November dates) was granted. The matter was adjourned to Cayuga on November 13, 2012 to set an 11(b) application date, (which new counsel elected to pursue) and new trial dates. | |
| Nov. 13/12 | New trial dates and half a day for a s. 11(b) application were set. Each side outlined their various available dates but the earliest dates available to both sides and the court were January 30, 2013 for the 11(b) application and then March 7, 2013 and May 1, 2013 for trial. |
[38] The defendant agrees that he is responsible for the delay occasioned by his change of counsel and the loss of the November 15 and 16, 2012 trial dates but submits that some reasonable portion of the period to May 1, 2013 should be attributed to systemic delay. The defence relies upon the application of R. v. Maracle, [1998] 1 S.C.R. 86 as support for that position. In my view the very brief judgment of the Supreme Court of Canada in Maracle simply confirms existing jurisprudence. In my view, the whole period from November 16, 2012 to May 1 2013 to accommodate a two-day trial is not an unreasonable period. If the systemic delay to November 16, 2012 had been reasonable I would have permitted this trial to proceed on March 7 and May 1, 2013.
[39] The defendant's change of counsel had no effect on systemic delay to November 16, 2012 since systemic delay to that date had already crystallized. All of the delay incurred after November 16, 2012 is the result of the actions of the accused. R. v. G.A.G., [2006] O.J. No. 67 (C.A.) at [5] and [6], holds that the delay occasioned by a change of counsel sought by an accused is not attributable to systemic delay. Equally, the time expended or required to bring an 11(b) motion is also time incurred by the actions of the accused.
[40] The total systemic or institutional delay in this prosecution to November 16, 2012 amounts to 12 months and five days. This is a period well outside of the Morin guidelines.
Prejudice
[41] The defence relies upon inferred prejudice only in this application. The defendant was released on a promise to appear with no restrictive terms included in the undertaking, which he gave to an Officer-In-Charge. Accordingly, there is no prejudice to his "liberty of the person" interests that can be inferred. However, one can infer prejudice to his "fair trial" interests based upon the passage of time in excess of the Morin guidelines. Additionally, prejudice can be inferred to his "security of the person" interests. Where, as here, delay exceeds the guidelines the non-existence of actual prejudice is less important in the judicial balancing.
[42] This was a straightforward allegation of impaired driving. By the time of the defendant's third trial dates the accumulated systemic delay amounted to in excess of 12 months. Prejudice to him can be inferred and I do so. His right under s. 11(b) to be tried within a reasonable period of time was infringed and the charge is stayed.
Dated at St. Catharines, this 11th day of February 2013.
J.S. Nadel, O.C.J.