Court File and Parties

Ontario Court of Justice

Date: 2014-04-03

Court File No.: 12-15633

Between:

Her Majesty the Queen

— and —

Reshaad Bahadoor

Before: Justice P.F. Band

Heard on: March 3, 2014

Reasons for Decision released on: April 3, 2014

Counsel

Ms. R. Prihar — counsel for the Crown

Mr. B. Starkman — counsel for the defendant Mr. Reshaad Bahadoor

BAND J.:

Introduction

[1] Mr. Bahadoor, who was charged with "Over 80" on November 28, 2012, seeks a stay of proceedings alleging a violation of his right to be tried within a reasonable time, as entrenched in section 11(b) of the Charter of Rights and Freedoms. The application was properly brought in advance of Mr. Bahadoor's third scheduled trial date of May 27, 2014.

[2] The case was not reached on the first trial date. On the second trial date, the Crown was granted an adjournment because a key Crown witness was ill and did not attend. On both occasions, Mr. Bahadoor and his counsel came to court expecting that the trial would take place.

Facts of the Case

[3] Based on the materials filed and submissions of Crown and defence counsel, I understand that Mr. Bahadoor is alleged to have driven with a BAC between 80 and 100 mg%. No accident or impaired driving is alleged. To prove its case, the Crown requires two police witnesses and a toxicologist. The Crown quite fairly did not suggest that the need for a toxicologist increased the complexity of the case such as to affect the analysis of the time-frames in question.

The Applicable Legal Principles in Over 80 Cases in Peel Region

[4] In R. v. Morin, [1992] 71 C.C.C. (3d) 1, at para. 31, the Supreme Court of Canada identified the factors that courts must balance in the s. 11(b) analysis. They are:

The length of the delay;
Waiver of time periods, if any;
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;
- (e) Other reasons for delay; and
Prejudice to the accused.

[5] In Morin the Supreme Court identified 8 to 10 months of institutional delay in the provincial court as a guideline to assist trial judges in adjudicating section 11(b) Charter claims. That period is a guideline, and not an inflexible limitation period. As such, it can vary from jurisdiction to jurisdiction. Also, the analysis is not intended to be a matter of simply counting days. This is why I have taken the liberty of rounding days up or down to the nearest week for ease of reference in these reasons.

[6] In Brampton, the guideline for a straightforward case is between 8 and 9 months.[1] Also, an intake period of two months has been identified as the appropriate "intake" period for such cases in Peel Region.[2]

[7] Quite fairly, Crown counsel did not suggest that Mr. Bahadoor ever waived his s. 11(b) rights or materially contributed to any delay. So, in this case, the central issues are the length of the delay that is attributable to the Crown and/or lack of institutional resources and the prejudice, if any, that Mr. Bahadoor has suffered.

Chronology of Proceedings

[8] Mr. Bahadoor's third trial date is set to take place on May 27, 2014, almost exactly 18 months after his arrest. In the interim, the following events took place:

December 18, 2012 – first appearance in court; disclosure provided;
January 28, 2013 – second appearance in court; matter adjourned for counsel (retained) to conduct Crown Pre-Trial Conference;
February 25, 2013 – third appearance; counsel misdiarized, matter adjourned for one week;
March 4, 2013 – fourth appearance, further disclosure provided;
March 25, 2013 – fifth appearance, Crown and defence discussions took place; adjourned for client instructions;
April 8, 2013 – sixth appearance, matter adjourned for counsel to meet with client;
April 28, 2013 – seventh appearance; trial date #1 set (September 20, 2013);
September 20, 2013 – eighth appearance – trial date #1; case not reached; trial date #2 set (January 16, 2014);
January 16, 2014 – ninth appearance; trial #2; Crown adjournment due to illness of key Crown witness; trial date #3 set (May 27, 2014); March 3, 2014 set for s. 11(b) application.

Position of the Defence

[9] Defence counsel submitted, and the Crown did not dispute, that Mr. Bahadoor acted responsibly and with dispatch in retaining counsel and bringing the matter to trial.

[10] Defence counsel submitted that the three months from arrest to February 25, 2013 constituted neutral/intake time and that the following month, up to March 25, 2013, constituted Defence delay. The two weeks between March 25 and April 8 should be classified as neutral, insofar as they involved obtaining instructions and pre-trial discussions with the Crown. The following three weeks, to April 29, are attributable to the defence as they involved discussions between lawyer and client.

[11] According to Defence counsel, the entire 13 month period between April 29, 2013 and trial date #3 (May 27, 2014) ought to be allocated to institutional delay.

[12] Therefore, the "actionable delay" of 13 months falls well outside the guidelines set out in Morin.

Position of the Crown

[13] Crown counsel submitted that the four-and-a-half month period from charge to April 8, 2013 constituted "intake" time and should be characterized as "neutral." Of the four-and-three-quarter months between April 29, 2013 (when trial date #1 was set) and trial date #1 (September 20, 2013), the Crown submitted that one month should be allocated to the inherent requirements of the case and three-and-three-quarter months to lack of institutional resources.

[14] The Crown fairly conceded that the four months between trial date #1 (September 20, 2013) and trial date #2 (January 16, 2014) were to be allocated to lack of institutional resources.

[15] Of the four-and-one-half months between trial date #2 (January 16, 2014) and trial date #3 (May 27, 2014), the Crown submitted that three months should be allocated to inherent requirements of the case. The Crown relied on [R. v. A.J.W.][3] and [R. v. Hoffner][4] for the proposition that illness and the ensuing delay it occasions are rightly to be considered as inherent requirements of a case and therefore neutral in the s. 11(b) analysis. This, of course, presumes that the ensuing delay is reasonable.

[16] According to Crown counsel, a delay of three months was reasonable in the circumstances, and efforts were made to secure a date within that time frame. Because those efforts failed, the Crown submitted that the additional month-and-a-half was attributable to institutional delay.

[17] As a result, on the Crown's analysis, if one subtracts an overall combined intake and inherent time period, the total "actionable delay" is approximately 9 months. It is, therefore, within the Morin guidelines (but at the outer edge of the guidelines specific to Brampton).

Allocation of Delay

[18] Crown and Defence counsel's calculations vary by approximately four months. Essentially, the difference boils down to the allocation of initial intake time and inherent requirements on one hand, and the delay that followed trial date #2 on the other.

[19] In my view, a proper assessment of the intake and inherent requirements of a case such as this one in Brampton is three months, not four-and-a-half, as suggested by the Crown. I am also of the view that a delay of 3 months after a second adjournment in these particular circumstances is not reasonable. I would therefore attribute two-and-a-half months following the adjournment of trial date #2 to lack of institutional resources.

[20] As a result, I find that the total "actionable delay" in this case is 10.5 months. This falls outside the local guidelines as well as those set out in Morin and requires constitutional scrutiny.

Prejudice Suffered by Mr. Bahadoor

[21] Mr. Bahadoor swore an affidavit in support of his application. In it, he explains that he is a 45 year old divorced father of an 11 year old who lives with him.

[22] He indicates that he is constantly worrying about the outstanding charge, which has caused him many sleepless nights. That anxiety and stress has heightened after each of the trial dates was adjourned. On the occasion of the second adjournment, Mr. Bahadoor felt devastated when he found out that he would have to wait another four-and-a-half months for trial.

[23] While he had an income of approximately $75,000 per year from his job as a unionized steamfitter, he was laid off shortly before the application was heard. He is responsible for all the costs of rearing his daughter and maintaining their household as he does not receive any child-support from his ex-wife, who has moved to Trinidad. He has been required to pay his counsel on each trial date (and, presumably, will be required to do so in the event of a third trial date). Those two trial dates also cost him two days' work, for which he was not paid.

[24] Crown counsel cross-examined Mr. Bahadoor on his affidavit. He testified that he was concerned about the impact of a conviction. He admitted that he had not seen a doctor specifically to discuss his stress, but said that it had come up during a visit when his doctor noticed it from his appearance. He has seen the same doctor for 30 years. He decided not to take medication.

[25] Mr. Bahadoor denied that the stress had been present since the date of his arrest. Rather, it "started to build up" shortly before the first trial date.

[26] I found that Mr. Bahadoor was endeavouring to tell the truth in his affidavit and in his oral testimony, and I believed him. In particular, it struck me as very honest on his part to admit that the stress he felt had not been present since the date of his arrest; rather, it built up gradually.

Submissions of the Parties Regarding Prejudice

[27] Crown counsel submitted, and I agree, that in these circumstances the Court ought not to infer prejudice. But given Mr. Bahadoor's affidavit and testimony, she acknowledged that Mr. Bahadoor had suffered actual stress and financial prejudice. However, she urged me to find that these did not rise to a constitutionally significant level. She pointed to the fact that Mr. Bahadoor did not receive treatment or miss work because of his stress and anxiety. She also suggested that less weight should be placed on the allegation of financial prejudice since it was not supported by detail such as a bill of costs or invoices.

[28] Relying on Morin, at paras. 26-30, Crown counsel submitted that society's interest in this case being decided on its merits outweighs Mr. Bahadoor's individual rights under the Charter. She also rightly relied on the often-quoted passage in [R. v. Bernshaw][5], which characterizes drinking and driving as a very serious offence.

[29] Defence counsel submitted that this case is different from so many others in our courts because it has been set for trial twice and adjourned on both trial dates without notice. Not only did the financial costs multiply, but the anxiety also mounted prior to and after each of the trial dates, and will continue to accumulate until trial date #3. This, Defence counsel submits, is simply not fair.

[30] In support of his argument, Defence counsel referred to [R. v. Lee][6] and [R. v. Egorov][7]. In those cases, this Court ruled that additional legal costs associated with adjournments and preparation for subsequent trial dates can be considered in the prejudice analysis. Those cases also confirm that increased prejudice can result from a case not being reached. In fact, this last factor can have the effect of shortening the constitutionally acceptable time to trial.

Conclusion

[31] It is true that our criminal justice system is inherently human and, as such, is susceptible to the illness of its participants and other unpredictable events. While such events are no one's fault and are rightly considered "neutral" in the s. 11(b) calculus, the delays they can cause are no less real for persons awaiting trial.

[32] I find that Mr. Bahadoor has suffered actual prejudice in these proceedings in the form of increased legal fees and mounting stress and anxiety. This is due to the fact that his case has been adjourned twice, through no fault of his own, without prior notice. While more detail concerning the increase in legal fees would have been welcome, I understand that it is not a formal requirement as it might raise concerns about solicitor-client privilege. I am also of the view that counsel, as officers of the court, ought to be trusted not to put such an argument forward if it is not based in fact. Also, I am aware of no authority stating that, to be considered a relevant factor, psychological prejudice must be accompanied with treatment, medication or lost income.

[33] In this case, I find that society's interest in seeing that Mr. Bahadoor is treated fairly outweighs its interest in ensuring that his matter is dealt with on the merits.

[34] Having balanced the factors set out in Morin – particularly a period of 10.5 months of institutional delay in the context of two adjournments of trial and actual prejudice – I find that Mr. Bahadoor's constitutionally protected right to trial within a reasonable time has been violated. Therefore, he is entitled to a stay of proceedings and one will be entered.

Released: April 3, 2014

Signed: ______________________

P.F. Band, J.