Court Information

Court: Ontario Court of Justice

Before: Justice Peter Harris

Date: April 2, 2014

Parties

Between:

Her Majesty the Queen

— AND —

David Delaney

Counsel

For the Crown: Ms. J. Bruno

For the Defence: Mr. J. Shime

Ruling on Section 11(b) Charter of Rights Application

Introduction

[1] David Delaney was charged with "impaired operation" and "excess alcohol" on the 6th day of December, 2012. The defendant applies under sections 11(b) and 24(1) of the Charter for a stay of proceedings on the grounds that his right to a trial within a reasonable period of time has been infringed. Applications under s. 11(b) are now heard in advance of the trial date pursuant to an administrative policy in the Ontario Court designed to salvage trial time for other cases should the application succeed. I am to treat this Application as if it were brought on the final trial date, April 9, 2014. The issue in this proceeding is the correct characterization of various periods of time relevant to the s. 11(b) claim; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19; R. v. Schertzer, 2009 ONCA 742, 255 O.A.C. 45, at para. 71.

Background Facts

[2] The applicant, David Delaney, was arrested on 06 December, 2012, on the above charges and later released on Forms 10 and 11. The information was sworn on 07 December, 2012, and the first appearance was on 28 January, 2013. By that date, the applicant had retained counsel. On this appearance there was no Crown brief in court and Crown counsel suggested, "Yeah, if it can come back in two weeks. I'll make efforts to locate the brief and get the disclosure." On 11 February counsel appeared for the applicant and was given some disclosure and requested a two week remand, "So we can review this disclosure."

[3] On 25 February 2013, counsel appeared for the Applicant and advised, "We have a pretrial scheduled….I'm gonna ask that it come back in three weeks so we can conduct that pretrial, so March 18th." Crown counsel agreed, saying, "All right. And I also am providing the breath and booking video at this time." On 18 March 2013, a student-at-law, Ms. Ross appeared as agent for counsel representing the applicant and advised that based on discussions at the pretrial, the trial estimate was 1.5 days. Following a meeting with the trial coordinator, she stated that the earliest available dates offered by the trial coordinator were December 2nd and 3rd, 2013. She further indicated that Mr. Shime [counsel for Mr. Delaney] "had availability and was prepared to conduct the one and a half day trial as of April 1 and 2nd of 2013." She informed the court that he was available 6 days in April, May 1st, and had considerable availability throughout the remainder of 2013. The case was then adjourned to an interim date, July 15th, 2013 to see "if any earlier dates become available."

[4] On 15 July, 2013, Counsel Ms. Ross, acting as agent for counsel of record attended for the applicant and stated, "I'm just here today to confirm the trial date that's been previously set." Crown counsel asked, "I understand that there aren't any '11B' concerns that my friend is aware of." The agent replied, "I am not aware of any, I don't have any instructions in that regard today. My instructions are to confirm the trial date."

[5] On 2nd December, 2013, the first date for trial, Crown counsel Ms. Bruno indicated she was not prepared to commence the Charter application without the full breath room video (which was at that time, missing the first breath test). She stated, (at p. 11, Transcript, 02 December, 2013) "Although the officer says it's very unlikely for him to get that video for tomorrow…. he will make efforts to do that. And so what we're proposing is that the matter is adjourned to tomorrow [03 December] and hopefully at that time….we hope that we will have the video and we can proceed." I commented that, "I still do not understand why it necessarily has to start tomorrow as opposed to today…either the case is going over entirely because you do not have the video, or it should start today and you will see if you have the video and it will go over to whenever you have the video. It does not seem to make sense to just put it over to tomorrow to start for half a day with the expectation it is going to go over anyway." Ms. Bruno then stated her position: "I guess we're hoping that, even though it's a slim hope, that we could get this video tomorrow because if we can….there's no reason we can't call the officer and proceed with his evidence tomorrow. And if we don't, then I guess we could simply adjourn the matter to another date." Mr. Shime for the Applicant, stated his position: "The charges are now approximately one year old…. we're here to proceed to a trial. My client is exceedingly anxious about these proceedings…We're ready to go and we'd like to go….We do not waive '11B' under any circumstances." Mr. Delaney was arraigned (but no evidence was heard) and the trial was adjourned to 03 December at Crown counsel's request to give the officer an opportunity to look for the missing portion of the breath video.

[6] On 03 December, 2013, Ms. Bruno advised that the missing portion of the breath video had not been located but that other disclosure items had just arrived that she needed time to peruse (officer notes, emails, an accident report and an in-car video) and she asked for time to review those materials. She proposed to call the officer-in-charge following this review and lead his evidence to the point of the first breath test and then ask for an adjournment to the afternoon to await the missing breath evidence. One hour was permitted for the review of the new disclosure. When the trial resumed at 11:00 a.m. Ms. Bruno commented that she had not yet received the medical records which were "both relevant to the Charter and the trial." I advised Crown counsel that I had to draw the line on waiting for disclosure to come in and that I was "not going to allow any more delays to get missing items." The officer-in-charge gave evidence 'in chief and in cross' but did not complete his testimony. Mr. Shime indicated he would require another 30 – 45 minutes to complete his cross-examination and both counsel agreed that aside from the missing breath video there would be no further evidence to be heard on the Charter voir dire. It became clear that until it was known whether the missing portion of the breath video could be made available it was unclear how much court time would be needed for continuation of the trial. The matter was then adjourned to 05 December, 2013 to determine whether the missing breath video could be recovered.

[7] On 05 December, 2013, Crown Counsel advised that she now had possession of the missing breath video. Following discussions two days were set for continuation, January 27th and April 9th, 2014. These dates were set as a result of the fact that the officer and the complainant were unavailable for portions of January and March and Mr. Shime was not available on February 28th and part of December, 2013. Counsel for the Applicant advised that with the continuation date in April, section 11(b) was "going to be very much an issue."

[8] On the next hearing date, 27 January, 2014, the arresting officer did not arrive at Court until 11 a.m. due to inclement weather. The case proceeded until the end of the Court day and was adjourned to January 29th to provide Crown counsel an opportunity to make submissions. Had the trial proceeded at 10:00 a.m. it is likely that it would have been completed on January 27th. On January 29th, additional submissions were heard and the Charter Application was then adjourned to February 14, 2014 at which time I found there had been a violation of the Applicant's 10(b) rights and excluded the breath sample evidence and any statements obtained following the Charter breach. The section 11(b) application was heard on March 25th, 2014 and the trial is scheduled to conclude on April 9th, 2014.

Analysis

[9] Whether delay has been reasonable is assessed by considering 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 (inherent time requirements, accused's actions, Crown's actions, limits on institutional resources), the prejudice to the accused and finally by balancing the interests that s. 11(b) seeks to protect: R. v. Godin, 2009 SCC 26, para 18. Accordingly, the issues under consideration will be dealt with in the above-noted order.

Length of the Delay

[10] The total delay to complete the trial is approximately 16 months ― from December 7th, 2012, when the defendant was charged to April 9, 2014 when the trial will be expected to conclude. A delay of this magnitude calls for an inquiry.

Waiver of Time Periods

[11] I have concluded there were no express (or implied) waivers by the defence of any time period based on the transcripts filed. During the initial intake period, the defence acquiesced in delay while awaiting crucial disclosure. According to s. 11(b) jurisprudence, the delay for counsel retention, disclosure and pretrial meetings is more properly attributed to the inherent intake functions of a case and classified as neutral for s. 11(b) purposes. While it could be argued that there was an implied waiver when an agent for Counsel appeared on the interim date, July 15th, 2013, and stated, "I am not aware of any [11(b) concerns]" and confirmed the trial date rather than seeking earlier trial dates (if there were any), I have concluded that this communication did not constitute a waiver. In these circumstances where the agent states, (Transcript, July 15th, page 2, line 20), "I don't have any instructions on 11B, counsel is not in town right now unfortunately," the test for waiver set out in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) has not been met. At paragraph 15 of that decision the Court held that "waiver by an accused must be clear and unequivocal, with full knowledge of the rights being waived and of the effect of the waiver of those rights." An agent's lack of awareness of section 11(b) concerns cannot be taken to mean there are none. Additionally, it is trite law that acquiescence to the inevitable delay required for the re-scheduling of trial dates when the case is not completed in the time allotted does not constitute a waiver of one's s. 11(b) rights.

Reasons for the Delay

(a) Inherent time requirements of the case and neutral periods

[12] There are three inherent time considerations for determination in this case: (i) the neutral intake period; (ii) the delay required for counsel availability and case preparation once the date for trial is set, and (iii) trial continuation delay that was not attributable to the Crown or the lack of institutional resources.

(i) The neutral intake period:

[13] Case authorities indicate that rather than becoming entangled in the minutia of Crown and defence actions prior to the setting of the trial date, trial courts should draw an inference based on the charges and the complexity of the matter and establish an appropriate neutral period for that case. The classic 'drinking/driving charge(s) with a section 8 Charter Application' represents a routine case for adjudication in the Toronto jurisdiction in which this matter arose and it is normally set for a 1.5 to 2 day trial. I accept that the delay from the date the charges were laid (December 7th, 2012) to March 1st, 2013 (the date of the judicial pretrial) was a relatively normal intake period of about two months, 23 days. The usual intake period for these charges is two months: R. v. Morin (supra); R. v. Lahiry 2011 ONSC 6780 (S.C.J.) and that delay for routine management functions is considered neutral in character for purposes of the s. 11(b) Charter review. As was pointed out in another often-quoted drinking/driving decision, R. v. Meisner, [2003] O.J. No. 1948 at para 32:

The intake activities (first appearance, retaining of counsel, disclosure, resolution meeting, etc.) lasting two months is an entirely normal feature of a case entering the Ontario Court of Justice. Such time requirements are to be considered neutral and not assignable to government responsibility. (Emphasis added).

[14] It seems apparent that the reviewing court should consider the time requirements to start a drink/drive case as neutral where counsel are ready to set a trial date approximately 2 months after the information is laid in accordance with the leading jurisprudence in this area. In my view, two months, three weeks (to March 1st) is within an acceptable time deviation from this guideline. There were no defence complaints about unreasonable delay to March 1st and it seems from a careful review of the court transcripts that this period was beneficial to the parties. The delay from charge to first appearance (January 28th, 2013) of approximately 7 weeks, was not so far beyond the 6 weeks to first appearance considered acceptable in R. v. Lahiry, supra, at para. 22. A longer first appearance date in this case may have been reasonable to allow the defendant additional time to retain counsel over the 2012 holiday season. As well, this entire neutral period assessment is based on the fact a trial date could have been set on March 1st, directly after the pretrial. The fact the case was adjourned to March 18th to set a trial date to accommodate defence counsel's vacation leaves little doubt that this period can only characterized as inherent delay: delay deliberately sought cannot be used to one's own advantage: R. v. Lahiry, supra, para. 79. To summarize, based on the foregoing analysis, the period from December 7th to March 1st is within the range of an acceptable deviation from the regular two month neutral period for these charges and the period from March 1st to March 18th is nothing more than the inherent delay required to bring both defence and Crown counsel together in the same court to set a trial date. The period from the date of the charges to the date the trial was set, March 18th, will therefore be considered neutral or delay inherent to the time requirements of this case.

(ii) The delay required for trial readiness:

[15] Another central issue in this case is the characterization of the approximately 8.5 months of delay from the date the trial was set (March 18th, 2013) to the first trial date of December 2nd, 2013. The 8.5 month trial delay between these dates will be assessed as 7.5 months institutional delay with one month attributable to inherent delay under the rubric of trial readiness (which consists of trial availability and trial preparation delay): R. v. Lahiry 2011 ONSC 6780 (O.C.J.). On March 18th, the agent for defence counsel indicated counsel would be available for trial within two weeks of the date the trial was set. She advised that counsel was available and "was prepared to conduct the one and a half day trial as of April 1st and 2nd of 2013." There was no comment made as to the preparation time required. In R. v. Konstantakos, 2014 ONCA 21, the Court of Appeal summarized the attribution rules on trial readiness: (at para. 10)

Institutional delay does not start to run until the parties are ready for trial and the system cannot accommodate them: Morin, at pp. 794-95. It is not realistic to assume that no time is required for counsel to clear their schedules and prepare for trial: R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187. That preparation time must be taken into account as part of the inherent time requirements of the case: R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 19.

In the above decision the court held ─ in regard to a matter of more complexity involving a 'grow operation' where there was no stipulation on the record as to the trial preparation required ─ that a 30 day period would be a reasonable allocation: (at para. 11)

Allowing a minimal amount of time to prepare for a trial of moderate complexity, including the preparation and service of an application under s. 8 of the Charter, it is reasonable to deduct 30 days as inherent delay.

[16] Consequently, by extrapolating from the above analysis, it would be reasonable to conclude that in the case at bar, being a matter of lesser complexity but with section 8 and 10(b) Charter applications, it would be reasonable to deduct 30 days as inherent delay. Additionally, where trial availability delay is less than the inferred delay for trial preparation there seems to be no reason why these two periods would not proceed simultaneously (as they would have if a trial in 30 days had been set on March 18th for April 17th, 2013). Accordingly, after deducting 30 days inherent delay for trial readiness purposes from the total period of delay to the first trial date, the institutional delay is approximately 7.5 months and slightly below the low end of the Morin guidelines in this first stage of the trial process.

(iii) Calculation of inherent delay as a result of trial continuation

[17] The determination of how to characterize the delay to subsequent trial dates is a difficult one. In dealing with the re-scheduling of a trial that has not commenced or that has not been completed on the scheduled trial dates, the delay resulting from the re-scheduling will be treated as institutional, or as part of the inherent time requirements, or as a period of delay caused by the Crown or defence, depending on the circumstances. Applying the principles set out in the leading case authorities, the first analysis involves the Crown request for an adjournment of the first trial date, December 2nd to the second day, December 3rd, 2013, in order to obtain and review missing disclosure. This was a legitimate reason to seek delay but the inevitable cost of this decision was that some further delay would be incurred in re-scheduling the case for trial because the 1.5 day trial could not be accommodated in the half day remaining (in fact the Court was able to hear evidence from 11:00 a.m. to the end of the day on December 3rd). As events unfolded on December 3rd, not only was the missing disclosure still unavailable, but in fact at least three other items of disclosure were received by the Crown as the trial was set to commence, specifically, an in-car video, police notes and an accident report, necessitating a further one hour delay to 11:00 a.m. to review these materials. As indicated above, two days were set for continuation, January 27th and April 9th, 2014. These dates were set as a result of the fact that the officer and the complainant were unavailable for portions of January and March and Mr. Shime was not available on February 28th and part of December, 2013. Both Crown and defence counsel were unavailable during the March break. Counsel for the Applicant advised that with the continuation date in April, section 11(b) was "going to be very much an issue."

[18] A number of case authorities inform the proper characterization of the delay period to the last day for trial April 9th, 2014. I have concluded on the basis of this jurisprudence that the delay from December 3rd to April 9th should be allocated as inherent delay for the following reasons:

(a) The Crown applied for and obtained an adjournment to the second day for trial to obtain missing disclosure. The Crown was prepared to proceed to trial on the second day for trial notwithstanding the missing disclosure. There was no reason why the trial could not have started on the first day for trial, December 2nd. By any calculation there were actually two full trial days available December 2nd and 3rd, but because of further disclosure issues, the trial did not start until 11:00 a.m. on the second day. But for these faltering steps the trial could well have been substantially completed in the two days that were actually available. It seems indisputable that the immediate reasons for this additional delay were partly systemic congestion and partly the expanding needs of the Crown. By now it should be clear that there is no room for miscalculations when trial dates are routinely set with built-in delay at or near constitutionally acceptable limits. On the basis of the Crown request for an adjournment of the first trial date, I would have thought that in the final analysis the Crown would bear the responsibility for the trial delay to the subsequent trial dates. That is not the way events unfolded.

(b) I have considered whether the delay to April 9th should be considered part of the inherent time requirements. In R. v. Lahiry, supra, in what was the "Carreira case" (at para. 68) the defence sought an adjournment to pursue resolution discussions. The trial judge characterized this period as delay caused by the defence. The court held that this was a proper and beneficial reason to seek delay and as long as it was reasonably short, "it is simply part of the inherent time requirements of the case." Applying this logic, where Crown counsel in the instant case seeks an adjournment that is stridently opposed, knowing that systemic congestion will result in considerable delay, and where there is no mutual benefit to both sides, it would seem that the proper characterization of the period to April 9th is delay caused by the Crown. From this perspective, what occurred was a failure of preparation ─ rather than any failure on the part of police services to provide disclosure. The breath sample video was in the Crown's possession for nearly 10 months (from February 25th, 2013) and it was never reviewed to ensure there were no technological deficiencies. Had the missing segment been noted and remediated in a timely fashion, there would have been no need for an adjournment of the trial. So this was the precipitating cause of the delay that derailed the trial in the initial stages ― December 2nd and 3rd, 2013.

(c) Crown Counsel submits that the delay to the last trial date is inherent as a result of a miscalculation as to the time required to try the case. She argues that the time required should have been longer than the 1.5 days estimated for trial and contends that in fact what was actually required was more than 3 days of court time on the grounds that the case proceeded on December 3rd, January 27th, and on January 28th (for 2 hours) and will require April 9th due to the complainant's earlier unavailability. She relies on the proposition articulated in R. v. Allen, (1996) 110 C.C.C. (3d) 331 (Ont.C.A.); aff'd (1997) 119 C.C.C. (3d) 1 (S.C.C.) (at para 27):

When addressing s.11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate: R. v. Hawkins (1991), 6 O.R. (3d) 724 at 728 (C.A.), aff'd, (1992), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip reflex, (1993), 80 C.C.C. (3d) 167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s.11(b) calculus.

In my view, the Crown's analysis in the case at bar is correct. At the judicial pretrial, the defence agreed that 1.5 days would be sufficient for the trial of these charges and the indication at the time was that there would be a section 8 Charter application. Prior to trial, the defence filed notice that a Charter application seeking relief under sections 8 and 10(b) would be presented at trial. There had been no mention of a section 10(b) application when the trial time estimate was made at the pretrial. Crown counsel argues that it was the s. 10(b) application that triggered the need for the missing breath sample video and the application to adjourn the case on the first trial date. This adjournment that resulted in an expanded trial requirement would have been the true cause of the delay had the trial time estimate remained accurate and consistent with the pretrial estimate of 1.5 days. However, the jaw-dropping moment for these proceedings ─ following the adjournment of the first trial date and the trial proceedings on the second trial date (December 3rd) ─ took place on December 5th. Counsel attended to arrange further trial time. Crown counsel Ms. Bruno states, "Counsel is of the view that there is another three hours needed to complete the Charter motion, at least from his perspective, and then he, he thinks the trial will take a day." On that date January 27th and April 9th were set as trial continuation dates. The Charter motions then continued on January 27 and for two hours on January 28th. Adjusting for delays on December 3rd and January 27th, there is no doubt that the Charter applications took two days and a further day for trial would be required (April 9th). The only proper approach to these representations would be to treat the 'reset' of the trial time estimate as a concession that the defence had miscalculated the trial time required ― the original estimate of 1.5 days had now expanded to nearly three days. In other words, I do accept that there was an inaccurate time estimate for trial that would justify converting all of the delay to April 9th to the inherent delay category in accordance with the ruling in R. v. Allen, supra.

(e) Finally, I followed the protocol in R. v. M.(R.) (2003) 178 OAC 243 (Ont.C.A.) and had a discussion with counsel about the need to recognize that this case was in trouble and the importance of planning a solution to the problem. MacPherson J.A. made it clear what was expected when trial delay becomes problematic:

[9] However, what I do say is that it is incumbent on the presiding judge and both counsel to explicitly recognize a case that is in trouble and to discuss fully on the record how to deal with the problem. If an adjournment of a preliminary inquiry is required, there should not be a pro forma "what is the next available date" conversation. Instead, the time period that has already elapsed should be explicitly acknowledged on the record and there should be a frank discussion about how to solve the problem. The focus of the discussion should be on ways to speed up the proceeding. The presiding judge, the trial co‑ordinator if necessary, and both counsel should attempt quite consciously to schedule the continuation of the preliminary inquiry – not several months down the road, but at the earliest possible date…

It remains patently obvious that notwithstanding my exhortations to make the case a priority, there is no system in place in the Ontario Court of Justice by which a case in constitutional jeopardy can be advanced in priority rather than, as MacPherson J.A. cautioned against, being placed on a court list several months down the road. The delay occasioned by the Crown-requested adjournment and the miscalculation as to the trial estimate would have been negligible had there not been extensive institutional congestion and a systemic aversion to the setting of case priorities. Yet that is a culture we have grown to accept. According to R. v. Allen, supra:

No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

For all the above reasons, I am satisfied that there is a proper basis for finding that the delay resulting from the trial continuation to April 9th is attributable to inherent delay and essentially neutral in character.

[19] On the basis of the above allocations of specific delay periods, the delay for which the Crown is responsible, essentially the institutional period of delay, is 7.5 months to the December 2nd trial date.

(b) Actions of the accused

[20] There was no waiver of trial delay on part of the accused. The trial readiness delay as noted above is recorded as neutral in the calculation of overall delay in accordance with R. v. Lahiry, supra.

(c) Actions of the Crown

[21] As noted above, there has been no attribution of delay allocated to the Crown as a result of the adjournment of the first trial date. This delay period was mainly created by a miscalculation in trial time required and would have been negligible had there not been such systemic congestion that the case could not be completed for a further 4.25 months.

(d) Limits on Institutional Resources

[22] The limits on institutional resources are well known in the Ontario Court of Justice. The systemic delay in this case is the period from March 18th to December 2nd with one month deducted for counsel readiness issues. This is a period that is under the Askov/Morin guidelines at 7.5 months and by itself, while not ideal, would represent a constitutionally acceptable period of trial delay.

(e) Other reasons for the delay

[23] All delay in this case has been covered in my analysis under other headings. Counsel has not argued for the attribution of delay to any other factor in this case.

[24] The total delay attributable to the Crown directly or pursuant to its responsibility for systemic or institutional delay is 7.5 months.

Prejudice

[25] The Defendant provided evidence on this issue in the form of an affidavit on which he was cross-examined and an assessment by a forensic psychologist, Dr. Nathan Pollock. I accept Mr. Delaney's evidence that the delay became more and more difficult for him over time. He testified that the uncertainty about the outcome of the pending charges has caused considerable stress and anxiety that was exacerbated by the additional delay resulting from the trial continuation to April 9th, 2014. Dr. Pollock advises that Mr. Delaney is currently distracted and preoccupied by his troubling circumstances. "He finds it difficult to concentrate and focus on his work and studies. Recently he has begun to develop physical symptoms such as headaches and insomnia." The report indicates that Mr. Delaney has a propensity for emotional reactivity under stress and as the "proceedings continue, there is a growing likelihood of emotional decompensation contributing to debilitating emotional disturbance." While some of the concerns expressed are related to the fact the defendant was charged and the worry that all accused experience in terms of the possibility of a conviction, still, the experience of facing these charges has become increasingly stressful over the past 15 months. I can well understand how increasingly isolated the defendant has felt and how heavily a sense of uncertainty must be weighing on him. In the end result, I am satisfied that the defendant has suffered a significant degree of actual prejudice to his security interests as a result of trial delay in terms of increasing stress and anxiety, and negative impacts on his physical health. As well, considerable prejudice has been occasioned by the increasing financial cost of defending himself as the trial is repeatedly adjourned. A relatively modest degree of prejudice can be inferred as a result of the general stigma related to the charges he has faced, and the vexations and vicissitudes of 7.5 months of systemic delay in having these pending criminal accusations concluded. I do note though, that there has been no assertion of prejudice to his liberty and fair trial interests and the appropriate characterization of prejudice in this case, in terms of actual and inferred prejudice, is "significant."

Balancing

[26] The final consideration involves a balancing of the problems that the delay has caused the applicant and society's interests in having charges concluded on the merits. In accordance with R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.), "the decision as to whether s. 11(b) has been infringed is not to be made on the basis 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 the delay." It is well accepted that society's interests in a trial on the merits increases as the seriousness of the charges increases. It must be acknowledged that the charges before the court are relatively serious as all criminal charges are, but even more so in terms of the harm to life and limb associated with the volatile combination of motor vehicles and alcohol consumption. As well, there is a particularly strong public interest in a trial on the merits where a personal injury accident has occurred. In the final analysis, this Court must consider whether the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

[27] As noted above, the total delay directly attributable to the Crown pursuant to its overall responsibility for systemic delay is 7.5 months. This trial delay is below the Ascov/Morin guidelines of eight to ten months. I have determined that the actual and inherent prejudice to be inferred with respect to the Applicant should be characterized as significant. It follows that the amount of delay that is "tolerable" in this case would be closer to the middle of the range given the level of prejudice to the Applicant but at the same time acknowledging that there were no real trial delay impacts on his liberty or fair trial interests (see R. v. G.(C.R.), [2005] O.J. No. 3764 (C.A.)). Consequently, even trial delay somewhat closer to 9 months would be constitutionally "tolerable" in this case. Seven and one/half months delay, however, while not ideal by any means, is within acceptable levels, even with the particularly well-documented evidence of actual prejudice. The profile of the instant case is somewhat analogous to the Carreira case in R. v. Lahiry, supra, in which four hours was scheduled for trial but then it expanded and ended up taking between two and three full days. Code J. found that the unjustifiable delay was less than 6 months and concluded (at para. 72) that "it would require a very strong case of actual prejudice to find a s. 11(b) violation in these circumstances." While no two cases are identical, I have arrived at a similar conclusion after balancing all the relevant considerations. The level of prejudice experienced in this case is outweighed by the societal interest in a trial on the merits.

[28] Consequently, I have concluded that the defendant's section 11(b) rights have not been breached and the Application will therefore be dismissed.

Released: April 2, 2014

P. Harris J.