Ruling on Section 11(b) Motion
Court: Ontario Court of Justice
Before: Justice Sandra Bacchus
Heard: January 27, 2014
Reasons Released: March 5, 2014
Parties and Counsel
Between:
Her Majesty the Queen
— AND —
Anthony Hughes
Counsel:
- F. Mizra, for the accused/applicant
- I. Sunderland, for the Crown/respondent
Introduction
[1] On November 4, 2012, the applicant was arrested and charged in relation to one count of Drive Over 80mg and Fail to Stop contrary to the Criminal Code, and one count of Fail to Remain in contravention of the Highway Traffic Act. The information was sworn on November 9, 2012. On April 26, 2013, the matter was set for a 1.5 day trial to be heard March 27 and March 28, 2014.
[2] The applicant applies for a stay of this proceeding pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that his right to be tried within a reasonable time, as guaranteed by paragraph 11(b) of the Charter, has been infringed.
[3] Well before the first appearance the applicant had retained counsel and sent a letter to the crown's office requesting initial disclosure including the in-car camera video. On December 20, 2012, the applicant received a letter from the crown's office acknowledging the request and advising that it had been passed on to the police.
[4] On December 21, 2012, the applicant made his first appearance at which time the crown laid a new information adding the charge of impaired driving. The crown provided disclosure to the applicant which included the booking and breath tech video and purported to include the in-car camera video. The matter was then adjourned to January 18, 2013; the parties were directed by the Court to conduct a crown pre-trial on or before the next appearance or at least make best efforts to book a pre-trial.
[5] On January 15, 2013, the applicant sent a letter to the crown requesting further disclosure in the form of officers' notes, any 911 calls and the manual for the Intoxilyzer C. On January 16, 2013, the applicant sent another letter to the crown further advising that counsel had been unable to view the in-car camera video despite trying it on two different computers (a PC and a MAC), and requesting that the replacement video, if possible, be provided in a format compatible with a MAC/Apple computer system.
[6] The crown sent a reply to the applicant on January 17, 2013, answering the majority of the disclosure request but not responding to the issue of the in-car camera video.
[7] On January 18, 2013, the Court was advised that a crown pre-trial had been set for January 24, 2013. The applicant requested a return date of January 29, 2013, stating: "There's a time frame that we're concerned that the limitation of the Stream A will run out as of February 3rd…on the 29th we can set a resolution date or we can pick a trial date and put it back in the stream".
[8] On January 29, 2013, the date of February 25, 2013, was set for the judicial pre-trial.[1]
[9] On February 25th, 2013, the judicial pre-trial was conducted. Counsel for the applicant advised the Court that he had not received a response regarding the in-car camera video in advance of the judicial pre-trial, but that he had attended the crown's office with the judicial pre-trial crown that day and was advised that he would receive a new copy of the video that day.
[10] The crown confirmed that the issue regarding the in-car video had been sorted out with the disclosure clerks who were going to provide the in-car video to the applicant that morning. The crown stated that the parties had a time estimate for trial and that the crown: "had hoped that we could set a trial date for this matter today", but understood that the applicant "needed a minute to review the video." The matter was adjourned for two weeks to set a date for trial.
[11] By the next appearance date March 8, 2013, neither the in-car camera video or the toxicology report had been provided. The crown advised that it appeared that the in-car camera video would have to be burned off a source file and initially suggested one week for that purpose. Upon reflecting that the video would probably be sent to police headquarters to obtain the replacement, the crown advised that the video would be available for pick up in two weeks. The Court agreed to adjourn the matter to March 22, 2013, at the request of the crown, to allow the applicant the opportunity to pick up the replacement video.
[12] On March 22, 2013, the replacement in-car video was still not available. The crown advised the applicant for the first time that in order for the in-car video to be redone or replaced the applicant would have to return the original video that had been disclosed so that it could be examined to determine the problem. April 5, 2013 was set as the next appearance date.
[13] A number of key things occurred at the April 5, 2013 appearance. Firstly, counsel for the applicant confirmed that despite returning the 'problem' video as instructed by the crown, a replacement in-car camera video remained outstanding. Secondly, the crown confirmed that the applicant's copy worked in the crown's system and questioned the previous efforts made by the applicant to rectify this situation. Thirdly, the crown offered a number of possible solutions to the current issue in an effort to move the matter along namely, that a judicial pre-trial be set so that the officer-in-charge could attend to address this disclosure matter, and that counsel and his client view the video in the crown's office.
[14] The agent for the applicant advised the Court that as a judicial pre-trial had already been conducted during which the issue surrounding the in-car video had been fully canvassed, there seemed to be no utility in setting a further judicial pre-trial. The applicant reiterated that a review of the video in the privacy of counsel's office was essential to full answer and defence. The applicant asked for a further adjournment to determine if the in-car camera video was available. Counsel indicated that if the in-car camera video was not available before the next date that he would be prepared to set a trial date.
[15] The Court acceded to the applicant's request with the understanding that in the interim the applicant would contact the crown's office to try and work out potentially seeing the in-car camera video in the crown's office. The matter was adjourned to April 26, 2013. In the interim, on April 12, 2013, the applicant received the toxicology report.
[16] On April 24, 2013, counsel for the applicant was advised by the disclosure clerk at the crown's office that she had made an effort to burn another copy of the in-car camera video but did not succeed. Counsel for the applicant advised that he would attend the crown's office on the Friday to see if either parties' copy of the in-car camera video would play on the crown's system.
[17] On April 25, 2013, counsel for the applicant was advised by the crown's disclosure clerk that although a request had been made for a new copy, the Toronto Police Service had advised that they would not disclose a new defence copy because the crown's copy worked on the crown's equipment. Counsel for the applicant did attend the crown's office and viewed the in-car camera video.
[18] In relation to counsel's attendance at the crown's office to view the video on April 25, 2013, counsel for the applicant wrote to the crown as follows: "Please note that although I appreciate the offer, reviewing this important disclosure at a busy Crown's office is not a substitute for disclosing a defence copy that can be accessed and used by my office in private as often as required to prepare. In terms of the importance of this disclosure to the defence, this is essential disclosure that captures the true nature of the interaction of the police with the accused thereby affecting the preparation of the defence of both the over 80 and the impaired charges."
[19] On April 26, 2013, 1.5 days was set for trial on March 27 and 28, 2014, with a confirmation date of June 21, 2014. Counsel for the applicant had availability throughout May 2013 to March 2014.
[20] In addition, on April 26, 2013, the applicant's counsel again attended the crown's office with a view to resolving the issue of the in-car camera video. Counsel for the applicant advised the Court that he had confirmed that the video will not play on his Mac system but that it will play "through different instructions, essentially, that were not provided to the defence until today, on a PC system." Counsel advised the court that he would take the video back to his office and attempt to play it there.
[21] On June 21, 2013, the court was advised that earlier dates of March 4 and 5, 2014, had been offered to the applicant but counsel was not available. As such the March 27 and 28 trial dates were confirmed.[2]
[22] Agent for the applicant reiterated counsel's continued difficulties in viewing the in-car camera video and advised that counsel had to borrow equipment. The crown conceded that it had not been easy for counsel to view the in-car camera video and offered to assist counsel further if necessary. The matter was then adjourned directly to the trial date.
[23] On July 2, 2013, the crown's office contacted the applicant and advised that the following trial dates had become available: October 21-24 and 28-30, 2013, requesting that counsel respond as soon as possible regarding his availability.
[24] Counsel for the applicant was out of the country on holidays but on July 9, 2013, did respond to the crown indicating that those dates were no longer available in his calendar. The crown advised that it was counsel's obligation to contact the trial coordinator about earlier dates.
[25] In addition, in relation to the applicant's request that the in-car camera video be burned on Mac compatible software to avoid problems in the future, the crown stated that this was a Toronto Police Service issue over which the crown has no influence. The crown provided counsel for the applicant with the Toronto Police Service contact information in the event he wished to relay his concern to the Toronto Police Service.
[26] On October 22, 2013, counsel for the applicant wrote to the crown to confirm that he had attended the trial coordinator's office that day and had been advised that there were no earlier trial dates.
Governing Legal Principles
[27] In determining whether the right guaranteed by section 11(b) of the Charter has been infringed, the Court must consider society's interest in seeing that criminal charges are heard on their merits against society's interest in upholding that an individual has a right to trial within a reasonable time. R. v. Morin, [1992] S.C.J. No. 25.
[28] In considering the nature and extent of an alleged violation the length of the delay is not the sole determining factor. Instead the Court must embark on an analysis of the reasons for the delay. The Supreme Court in Morin, supra, has identified the following as relevant factors for consideration:
- the overall length of the delay;
- waiver of time periods;
- reasons for the delay, including the inherent time requirements of the case and the actions of the parties;
- limits on institutional resources.
[29] An eight to ten month period for institutional delay in the Ontario Court of Justice after the preliminary intake functions have been completed is recognized as a permissible scope of systemic delay, with emphasis that this time frame is a guideline only and not a limitation period or fixed ceiling on delay. R. v. Morin, supra, p. 13.
[30] Even where the guideline has been "substantially exceeded", that, in and of itself, does not make the delay unreasonable. Where the impugned delay falls relative to the eight to ten-month guideline established by the Court is one factor relevant to the determination of whether an accused person has established a violation of the paragraph 11(b) Charter right. R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 at p. 5, para. 5.
[31] Another relevant factor is the prejudice to the accused occasioned by the delay. However, even absent evidence of specific prejudice to the accused caused by the delay in bringing the matter to trial, the court can infer prejudice in the case where the delay has been unreasonably lengthy in the circumstances. R. v. Emanuel, 2012 ONSC 1132, [2012] O.J. No. 709 at para. 27 (S.C.J.); R. v. Morin, supra.
[32] In all instances, the focus of the prejudice which warrants scrutiny and possible remedy by the Court is the prejudice arising from the delay in having the charges heard, and not the prejudice which results from the fact of being charged with a criminal offence. Prejudice arising from a criminal charge is suffered even when the accused is tried within a reasonable time and as such cannot, in and of itself, form a basis to warrant a stay of proceedings. R. v. Silveira, [1998] O.J. No. 1622 at para. 53 (Ont. G.D.); R. v. Kovacs-Tatar, [2004] O.J. No. 4756 at para. 33.
Calculation of Length of Delay
[33] The overall length of delay in this matter is 16 months and 17 days, commencing from November 9, 2012, the date of the information was sworn, to March 28, 2014, the last day scheduled for the trial of this matter. This quantity of delay is of sufficient length to raise an issue as to its reasonableness and merits further scrutiny.
[34] The applicant submits that the overall delay to be categorized as a combination of institutional and crown delay in this case is between 13 and 14 months. The applicant argues that delay of this duration is substantially outside the guidelines in respect of acceptable delay established by the Supreme Court of Canada in Morin, supra and that it is appropriate for the Court to infer prejudice to the accused in this case.
[35] The respondent frames the institutional delay in this case at 10 months and 13 days, slightly outside the Morin guidelines. The respondent submits that the following factors militate against a stay of proceedings as the appropriate remedy in this case: the lack of evidence of actual prejudice to the applicant attributable to the delay; the lack of impact on the applicant's trial rights; that the societal merits in continuing the prosecution are compelling in the circumstances and outweigh any minimal infringement of the applicant's security interest.
Analysis
Intake Period
[36] There is no evidence to suggest that the issues before the Court are complicated or that a significant number of witnesses would be called. There are some features to this case which I find extend it somewhat beyond the routine impaired case. These features include: readings outside the two hours such that the presumption of identity cannot be relied upon and that expert evidence in some form will be required; that there are civilian witnesses; that the charge of impaired driving was not laid until the applicant's first appearance and that the allegations involve an additional count of failing to remain.
[37] I find that a reasonable intake period for this matter, taking into account all of these factors is 2.5 months. By that point in time the parties should have dealt with matters that normally take place in intake such as bail, retainer issues, and providing substantial disclosure, such that the parties should have been ready to set a judicial pre-trial. (R. v. Hamilton, [2010] O.J. No. 4407; R. v. Braverman, [2002] O.J. No. 5345; R. v. Mahmood, 2012 ONSC 6290 (S.C.J.) para. 43.)
[38] Given: that the time between the charge and the first appearance was substantial; that the applicant had retained counsel before the first appearance; and that the applicant was provided with substantial disclosure at his first appearance including what was expected to be a working copy of the in-car camera video, this intake period should have more than amply covered the time needed to get this matter ready for a judicial pre-trial. The only critical outstanding item of disclosure as of December 21, 2012, which the crown was alerted to by the applicant on January 16, 2013, was a working copy of the in-car camera video.
Waiver
[39] The applicant did not waive his section 11(b) rights at any time in the course of the proceedings.
Actions of the Parties
[40] The crucial issue in this case is the proper apportionment of time occasioned by the delay in setting the trial date between February 25, 2013, and April 26, 2013. It is well recognized in our jurisprudence that an accused person is entitled to sufficient disclosure in order to set a trial date, but not complete disclosure. R. v. Collette, [2004] O.J. No. 5304.
[41] I am not persuaded by the applicant's argument that the toxicology report was a crucial piece of disclosure necessary for setting a trial date. The applicant had disclosure of the breath readings by his first appearance; the content of the toxicologist report would not be new information, just a further analysis of readings already known to the defense.
[42] However, the in-car camera video in a case where an accused person is charged with impaired driving and the subject driving is captured on that video, is essential disclosure. In this case, the necessity of this disclosure to inform the pre-trial process was amplified by two additional factors: that the crown was in possession of the in-car camera video and was able to view it from the first appearance, and that a charge of impaired driving was laid at the applicant's first appearance, weeks after the original charges were laid against the appellant, presumably informed by what was on the video.
[43] The nature of the in-car camera video and the circumstances of this case are entirely distinguishable from cases such as: R. v. Collette (supra), R. v. Bacslmasi, [2006] O.J. No. 3433, and R. v. Ayotte, [2010] O.J. No. 4348.[3]
[44] I adopt the findings of Lipson, J. in R. v. Maxwell, [2006] O.J. No. 2604 (Ont. C.J.) at para. 21, as entirely applicable to the circumstances before this Court:
It seems that if this issue was ever controversial, the time has long passed when it should continue to be so. There will be exceptionally few cases where the booking breath room DVD does not constitute essential disclosure. In most contested drinking and driving cases, either Crown or defense plays the DVD during the trial. Defence counsel and their clients require timely disclosure of the DVD in order to make informed choices as to how best to proceed. What is shown on the DVD can have a crucial influence on the choice of plea or trial strategy. What is displayed on the DVD is always relevant to a myriad of Charter and non-Charter issues. Another important aspect to be considered is that of trial management. One of the primary functions of the judicial pre-trial is to properly assess the time requirements of any given case. The pre-trial judge and counsel factor the playing of the DVD into this estimate. Defence and Crown need to review the DVD in order to participate meaningfully in a judicial pre-trial.
Simply put, the in-car camera video is the best evidence of the offense, essential not only to possible Charter motions but also to the applicant's ability to make full answer and defense. Certainly in providing the video as part of the initial disclosure package to the applicant, the police and prosecuting authorities recognized its importance as essential disclosure.
[45] The applicant was more than diligent in conveying to the crown the seriousness of the disclosure issue and the significance of this item of disclosure to making full answer and defense; the applicant did so in a prompt fashion beginning January 16, 2013. Unfortunately, from February 25, 2013, to April 26, 2013, there was nothing meaningful achieved by the crown to address the issue in relation to the in-car camera video.
[46] The crown's office was not able to copy the video; there is no explanation for that difficulty on the record before me and I can only infer that this is as a result of an added security measure by the police in relation to the video. Unfortunately, none of this was communicated to the applicant or the Court until April 25, 2013.
[47] The crown's direction to the applicant on March 22, 2013, that to get a replacement video the applicant would have to return his copy of the video was not timely, and ultimately was not accurate given that the police took the position that they would not provide a second copy. Instead of expediting matters when the applicant returned his copy of the in-car camera as instructed by the crown, the applicant was introduced to a further layer of bureaucratic hindrance.
[48] On April 5, 2013, the crown took the position that a further judicial pre-trial should be booked. The difficulty with this option at that stage is that a further judicial pre-trial would have created even greater delay. The applicant's position that another judicial pre-trial would be futile given that the issue of the in-car camera video had been canvassed at the initial judicial pre-trial months before was reasonable in the circumstances.
[49] For the purpose of setting a target trial date in this case, the crown was obligated to provide an in-car camera video that was accessible and viewable. The optimal course would have been for the applicant to have been provided with the instructions necessary to open the video on his own system as soon as the issue was raised by the applicant on January 16, 2013. Failing this, the video should have been provided to the applicant in some other format which would allow the applicant to access it.
[50] Had options such as these been presented to the applicant promptly in response to the issues raised by the applicant on January 16, 2013, there would have been no basis attributable to the action or inaction of the crown, to delay setting a target trial date. Unfortunately, nothing occurred until April 26, 2013, when alternative information was received by the applicant about how to access the video that allowed the applicant meaningful access to the in-car camera video.
[51] Although the option of viewing the video in the crown's office is certainly the best and only possible scenario to afford the self-represented accused without access to technology some opportunity to access his or her disclosure, it is untenable to suggest that counsel should be subject to the same limitations of space and time. It is the applicant's right to consult with and receive advice from counsel in private regarding his or her approach to the criminal proceedings he is facing.
[52] I appreciate that there are certainly circumstances where a review of a video in the crown's office is sufficient for counsel to advise his or her client with regards to next steps; and certainly in many circumstances particularly with non-essential disclosure such a review may suffice for the purpose of setting a trial date. But in a situation such as this, where counsel has promptly and reasonably advised the crown of the need to discuss the video with his client privately, the offer to watch the video in the crown's office is not an answer to the crown's disclosure obligation.
[53] It is also not an answer to this obligation for the police to say that because the video works in the crown's system they are not providing a replacement or helping to investigate how the video can be made workable. Such a stance is inconsistent with the crown's disclosure obligation pursuant to R. v. Stinchcombe, [1995] 1 S.C.R. 754, aff'g (1994), 1994 ABCA 113, 88 C.C.C. (3d) 557 and inconsistent with section 7 Charter values. Early disclosure of the in-car camera video in an impaired case should be routine and disclosing a video that the defendant cannot access or view is no disclosure at all.
[54] The police have elected to improve their methods of investigation through the use of technological advances. This is laudable and consistent with the public interest that the Court has before it the best evidence capable of exonerating or inculpating an accused person. That being said with these advances, comes the responsibility of the State to insure that the accused has proper access to the disclosure.
[55] In my view there was an unreasonable delay in providing disclosure essential to setting a trial date. This delay was occasioned by a number of failures in crown action and crown communication, and specifically the apparent failure of the crown/police to follow up and follow through on its disclosure obligation.
[56] As such the only proper allocation of the delay between February 25, 2013 and April 26, 2013, is to categorize this delay as crown delay and not part of the inherent time requirement of the case. The delay was created as a result of the crown's inattention to its disclosure requirements. R. v. Wood, (2012) O.J. No. 3246.
Inherent Time Requirements
[57] It is well recognized that pre-trial discussions and in particular the judicial case management function is: "a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases." (R. v. Tran et al., 2012 ONCA 18 at para. 34). The time required for the judicial pre-trial is acknowledged as part of the inherent time requirements in a criminal case and will vary depending on the nature and complexity of the case. (R. v. Mahmood, supra at para. 36).
[58] The judicial pre-trial was set for February 25, 2013; neither party was available on an earlier available date. In the ordinary course, I would see no reason to deviate from the accepted practise that the time required for setting the judicial pre-trial in this case forms part of the inherent time requirements of the case.
[59] However, I find merit in the applicant's argument that the intake period was unnecessarily protracted in this case because of the delay in responding to and providing the in-car camera. In this case, the judicial pre-trial was set on January 29, 2013, 80 days from the date the applicant was charged with the offense, and took place on February 25, 2013, a further 26 days away.
[60] Despite a rather benign series of adjournments which lead to the judicial pre-trial date, a full analysis of this timeframe leads me to conclude that it would be an inaccurate and unfair characterization of the nature of the delay during this time period as entirely intake and therefore neutral delay. This is so given the lack of action by the crown/police to meaningfully address the in-car camera, which later became apparent. R. v. Steele, 2012 ONCA 383, [2012] O.J. No. 2545.
[61] In the circumstance of this case, given the length of time between the charge and the applicant's first appearance and the fact that the applicant had already retained counsel in advance of his first appearance and received all necessary disclosure to move the matter forward, there was no need for any extended intake period beyond 2.5 months. In other words had the video issue been promptly addressed by the crown, I expect that the judicial pretrial date would have been set weeks earlier.
[62] As such, it is my view that the 30 additional days which formed part of the intake period to set the date for the judicial pre-trial is properly attributable to crown delay.
[63] However, even without attributing this period of delay to the crown the institutional/crown delay in this case still significantly exceeds the Morin guidelines.
Institutional Delay
Total Calculation of Delay
[64] As such, in this case I calculate the institutional delay in this matter at 337 days. In my view it is appropriate in these circumstances, given the realities of trial preparation, including the time required to file Charter application and subpoena witnesses, to find that an additional 30 days from the date when the trial was set, be allocated as neutral delay. R. v. Lahiry et al., 2011 ONSC 6780.
[65] The crown delay in this case amounts to an additional 89 days. As such the total combined institutional and crown delay in this case amounts to 406 days or 13 months and 16 days. I note that even without characterizing the protracted intake delay of 30 days as crown delay the total delay in this case would still remain at 12 months and 16 days, substantially outside the Morin guidelines given the nature of this case.
[66] The breakdown of the time periods is set out below:
| Period | Duration | Attribute To |
|---|---|---|
| November 4, 2012 to December 21, 2012 | 48 days | Intake |
| December 21, 2012 to January 18, 2013 | 27 days | Intake |
| January 18, 2013 to January 29, 2013 | 7 days | Intake/Inherent Time Requirements (for pre-trial) |
| January 18, 2013 to January 29, 2013 | 4 days | Crown delay (protracted intake) |
| January 29, 2013 to February 25, 2013 | 26 days | Crown delay (protracted intake) |
| February 25, 2013 to March 8, 2013 | 11 days | Crown Delay (for in-car camera video) |
| March 8, 2013 to March 22, 2013 | 14 days | Crown Delay (for in-car camera video) |
| March 22, 2013 to April 5, 2013 | 13 days | Crown Delay (for in-car camera video) |
| April 5, 2013 to April 26, 2013 | 21 days | Crown Delay (for in-car camera video) |
| April 26, 2013 to March 28, 2014 | 337 days | Institutional |
Prejudice
[67] The applicant gave evidence regarding areas of his life where he asserts he has been prejudiced as a result of the delay in bringing this matter to trial. These areas include: health impacts including chest pain and abdominal problems; impact on his ability to sleep; his social life; his ability to submit an insurance claim; and an impact on his ability to take advantage of the early stream of the Ignition Interlock program.
[68] In relation to these areas, I am not satisfied that the applicant has met his onus to establish that the prejudice he experienced arose from the delay as opposed to the fact of being charged with a criminal offense. No medical evidence was called regarding changes to the applicant's health; the applicant was not subject to onerous bail conditions; it does not appear that the applicant has been negatively impacted by changes in his work or his residence since the charge and the applicant conceded in cross-examination that he made the decision to socially isolate himself as a result of these charges.
[69] The applicant testified that he received a letter from his insurance company regarding a November 13, 2013, deadline to file a claim in relation to the accident. However, the applicant did not contact the insurance company regarding extending this deadline and chose not to make a claim by the deadline date because of his belief that his insurance company would not cover his costs unless the charges were dropped.
[70] The applicant's evidence regarding the insurance issue is vague; there is no evidence from the applicant's insurance company regarding this deadline, nor is there any evidence that the applicant sought an extension to file this claim, or that the applicant took steps to communicate his concern regarding this deadline to the crown at the time. The applicant is obligated to do so if he then wishes to rely on this circumstance as an indication of actual prejudice to him as a result of delay. R. v. Bennett, 64 C.C.C. (3d) 449.
[71] Similarly, in relation to the applicant's ability to access Stream "A" of the Ignition Interlock program, reference was made by the applicant on January 29, 2013, regarding possibly availing himself of the program. However, there is no evidence regarding the program criteria or of any efforts on the applicant's part to bring the matter forward or alert the crown of changes required in court scheduling so that the applicant could avail himself of the program. Nor was there any correspondence from counsel for the applicant specifically referring to the need to review the in-car camera video for the purpose of considering the early Ignition Interlock option.
[72] As such, I am not satisfied that the applicant experienced actual prejudice in this regard.
[73] I am satisfied however, that the applicant experienced some financial prejudice as a result of the delay in these proceedings. There is no doubt that there are significant costs borne by an accused person in order to secure legal representation. Typically, it is difficult to distinguish costs which arise as a result of someone being charged with a criminal offense and costs which are appropriately attributable to the delay in these proceedings.
[74] In this case, however, some financial prejudice can be inferred given the repeated personal attendances required by counsel for the applicant to pick up, review or investigate the issue surrounding obtaining a workable copy of the in-car video. These attendances were necessitated by the delay in remedying the issue of the working copy in an effort by the applicant to try and expedite resolving the issue.
[75] Despite my finding that there is some evidence of financial prejudice to the applicant occasioned by the delay, there is no evidence of any impact to the applicant in terms of his job, his home, or his relationships such that the financial prejudice he experienced could be categorized as significant.
[76] This is a case, however, in which I find that it is appropriate given the lengthy and unreasonable delay to infer prejudice. The delay in this case is the type of delay identified by Code, J. in R. v. Emmanuel, supra para. 27 as: "substantially longer than can be justified on any acceptable basis".
[77] I find that no action or inaction on the Applicant's behalf contributed to any part of the delay in this case. At all times, the Applicant has acted in a manner consistent with a desire for a timely trial and expeditious resolution of this matter. The applicant conducted the judicial pre-trial even without the in-car video and alerted the crown and court of the difficulty at that time. Until April 5, 2013, the applicant was lead to believe that the outstanding issue would be resolved by replacing the video. Even up to April 25, 2013, there was no clear statement by the crown that a replacement video would not be provided.
[78] I distinguish this case from the circumstances of R. v. Kugathasan, 2012 ONCA 545, where the court found that the defendant had made a tactical decision in seeking to quash the information knowing that the charges would be re-laid and that there would therefore be a delay in the new trial. The applicant through his counsel undertook what can only be described as extensive efforts to attempt to remedy the issue regarding the workings of the video.
[79] As per the decision in R. v. Ross, [2007] O.J. No. 2697 para. 59:
In my opinion the defense reacted reasonably to the indications it was receiving from the Crown that full disclosure was imminent. As it turned out, the time sent waiting for the disclosure was wasted. However, it was not wasted because of the conduct of the defence. This was not a case where the defence was lying in the weeds' as time was slipping by or looking for excuses to delay the process.
[80] The action/inaction of the crown/police weigh heavily in favour of inferring prejudice: "Unlike institutional delay, the other Crown delay was not beyond the control of the individual state actors who caused it. It was the direct result of a simple failure of the police to do their job. As a matter of common sense, that weighs heavily against the Crown." R. v. Brown, [2005] O.J. No. 2395 at para. 48.
Conclusion
[81] There is a strong societal interest in seeing that charges in relation to drinking and driving be heard on their merits. There is no issue that this type of offense has lead to injury death and destruction, and that those who operate motor vehicles while impaired place the entire community at risk. The societal interest in seeing these matters prosecuted however cannot override the individual's constitutional right to a trial within a reasonable time particularly where the length of delay has exceeded the Morin guidelines for the reasons that I have found in this case.
[82] As such, I find that the applicant has established a violation of his right to be tried within a reasonable time and accordingly the application for Charter relief is granted and a stay of proceedings is ordered.
Reasons released: March 5, 2014
Signed: Justice Sandra Bacchus
Footnotes
[1] Although counsel for the applicant had available February 8, 2013, to conduct the judicial pre-trial, the applicant had been offered February 6, 2013, which was declined.
[2] Agent for the applicant reiterated counsel's availability from June 24, 2013, during all of August except two days, all of October except 10, 11, 15, 21, 28 and 29, all of November except two days all of December, January, February, and March with the exception of March 3 to 14.
[3] In Collette, supra, there was a delay in providing a forensic result and some information as to the timing of the break and enter. In Bacslmasi, supra, there was a delay in providing medical reports and some witness statements. In Ayotte, supra, there was a delay in providing working copies of the video statements of a couple of witnesses. Notably these cases were set for a preliminary inquiry which would allow for discovery.