Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Avedis Chamassian

Crown: Mr. Vandenende

Defence: Mr. Barrs

Ruling

KENKEL, J.F. (Orally):

Application for Stay of Proceedings

[1] Mr. Chamassian applies for a stay of proceedings as a remedy for an alleged breach of his Section 11(b) right to trial within a reasonable time.

[2] This is Mr. Chamassian's third trial date. This matter was before the court on two prior occasions and he was ready for trial, but the matter was not reached. It's been over twelve months since the date of arrest and I find that the time to date is sufficient to warrant an increase to the causes of delay.

Analysis of Delay Periods

[3] The transcripts show that the period from the date of arrest to November 13th is properly characterized as an intake period. On November 13th a trial date was set for February 4th, 2013. The transcript and the "green sheet" prepared that day by the Trial Co-ordinator's office indicate that the court had earlier available dates in December and January, but the matter was set for trial February 4th to accommodate Mr. Barrs' schedule.

[4] The matter was not reached February 4th and a new trial date was set for May 9th. The green sheet indicates in the comments section that the court had earlier availability in March and April, but March 12th is the only date set out as offered by the court and that one day was not available to defence.

[5] On May 9th, the matter was not given priority despite being a second trial date. Again, it was not reached and a new trial date was set for October 31st. Although the green sheet states "August dates available" there's only one listed and it wasn't available to the Crown or defence.

[6] The court record shows that the specific dates listed were the only ones offered which contradicts the statement in the comment section of the green sheet that suggests other August dates were offered. From May to the end of October, only one available day was declined by the defence.

Attribution of Delay

[7] I agree with the Crown that as counsel was unavailable until the first trial date, that time is not attributable to institutional delays. See: R. v. Tran, 2012 ONCA 18, [2012] OJ No. 83 (CA).

[8] The court failed to give this matter priority on the second trial date and a third was required. The fact that the defence was not available on one date within both those multi-month periods does not necessarily mean that the delay past those points can be fairly attributed to the defence. See: The Queen v. Godin, 2009 SCC 26, [2009] SCJ No. 26 p.23. I find that applies in this case, particularly where the central cause of the delay past May 9th was the failure of this court to give this matter priority.

[9] I attribute the whole of the eight months and twenty-eight days from the first trial date to the time of Application to institutional delay.

[10] This matter was scheduled for one day and given the circumstances that reasonably gave rise to this Application, it's plain that the matter would not finish today. Counsel have obtained a fourth trial date of April 7th, 2014 for completion of the matter.

[11] Allowing for the expanded nature of the trial, now given this Application, noting it was caused by the court's failure as earlier described and setting aside the two fast dates in November where the defence was reasonably unavailable, I find that the two months and twenty-four days from today to January 23rd, is reasonably attributable to institutional delay. I find the total institutional delay in this case to the end of trial is eleven months, twenty-two days.

Prejudice Analysis

[12] I agree with the Crown that the defence witness who did not attend today is not "unavailable" in the legal sense and could be compelled to come to court.

[13] I also agree that much of the personal stresses that the applicant described in his evidence relate to his lack of employment and other issues that do not reasonably flow from the delays in this trial.

[14] There is an aspect of prejudice in this case though that is more troublesome. Mr. Chamassian has been unemployed throughout this period and has sold his home and eventually exhausted his equity just to meet expenses, including the cost of three trial dates. While he was able to retain a toxicologist and obtain a report, I accept his evidence he is unable now to afford to have this toxicologist attend and assist at trial.

[15] While I agree with the Crown's observation that toxicology evidence related to consumption plays a much reduced role in drinking and driving cases since the 2008 amendments, it may be relevant in certain cases. I'm also mindful that the new provisions place a burden on the defence to show error in the approved instrument or its operation and it is reasonable to infer that the evidence of the toxicologist with expertise in that area might not just be helpful but essential in that context. I am concerned that Mr. Chamassian's trial would no longer be a fair one where over the period of delay he has lost the ability to pay for the expert he needs.

Public Interest Consideration

[16] I take into account the public interest in the trial of these offences on their merits. I should note that delay applications are rare at this time in this jurisdiction as most matters that can be heard within a day are completed within a few months of the parties being ready for trial.

Decision

[17] Considering all of the circumstances including the public interest, the three trial dates with a certain fourth date, a total institutional delay of eleven months, twenty-two days and the prospect of an unfair trial, I find the defence has proved the Section 11(b) breach alleged.

[18] There will be a s.24(1) stay of proceedings.

MR. VANDENENDE: Thank you very much, Your Honour.

...COURT ADJOURNED

Released: October 31, 2013