Court File and Parties

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

Ms. E. Flynn for the Crown

— And —

Ravneet Singh

Mr. P. Dotsikas for the Accused/Applicant

Heard: May 13, 2014

Decision

NAKATSURU J.:

[1] Application and Charge

[1] The applicant, Ms. Ravneet Singh, is charged with operation of a motor vehicle with a blood alcohol level over the legal limit. She brings an application pursuant to s. 24(1) of the Charter alleging that her right to a trial within a reasonable time under s. 11(b) has been infringed. I dismissed the application orally. These are the written reasons explaining my decision.

Analysis

[2] The factors to be considered on an application such as this are well established and set out in the case of R. v. Morin (1992), 71 C.C.C. (3d) 1 at 13 (SCC). These principles have more recently been considered in two binding decisions: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.). See also R. v. Steele, 2012 ONCA 383, [2012] O.J. No. 2545 (C.A.).

[3] I will now address those factors. First of all, it is not disputed that the length of delay warrants examination and that there has been no waiver of any of the time periods by the applicant. As it is often with applications of this nature, this case turns on the attribution of the time periods in question.

Chronology and Delay Attribution

[4] The information was sworn on March 4, 2013. The trial date was set for January 6th, 2014. The trial commenced on that date but could not be completed. Today, May 13, 2014, is the resumption of the trial.

[5] The first appearance was April 5, 2013, and initial disclosure was provided. On the return date of May 3, 2013, a Crown pretrial had been completed on April 29th and Crown was prepared to set a date. However, agent for defence counsel was not aware of this and did not have counsel's dates therefore he requested an adjournment to May 17th. On May 17th, a trial date of January 6, 2014, was set.

[6] In my view, from March 4, 2013 to May 17th, a period of 2 months and 13 days, should be attributed to intake. While the defence made a mistake on May 3rd about whether a Crown pretrial had been held, rather than attributing the delay from this to the defence, in my view it is just to simply treat this as a part of the intake process. In that process, sometimes errors are made and should not be attributed to a party, particularly when the overall intake period is not greatly delayed.

[7] On May 17th, the trial date of January 6th was selected. I disagree that this period of time should be attributed to institutional delay. Close scrutiny of the transcript of May 17th shows why. On that date, the Justice of Peace sitting in the set date court offered August 21, 2013, as the earliest trial date. The agent for the defence clearly indicated that defence counsel had no free dates until January 6, 2014. There were no earlier dates offered by the defence. Indeed, the presiding Justice of the Peace did not have the set date calendar that far into the future. As a result, the agent had to attend at the trial coordinator's to secure a date that far into the future.

[8] Even without considering the time required for defence preparation, the institutional delay only runs from May 17 to August 21, on the best case scenario. From then on, it was the total unavailability of the defence until January that caused the delay. Not a single day was offered by the defence for an earlier trial date. This is not a case where it was the court that only offered a single day available for trial here and there to the parties.

[9] In this jurisdiction, in the set date court, a calendar of available dates for trial exists. The earliest one offered was August 21. It was pointless offering other dates since counsel simply indicated his unavailability until January. As a result, the parties had to attend at the trial coordinator's office to secure a date that far into the future. This is not a similar case either on the facts or principle to Godin. Here the institution of the court could offer earlier dates but counsel simply was not available. The absolute unavailability of counsel at the initial set date appearance is an important factor. This is not similar to a case where mid-trial a matter cannot be completed, a judge is seized of the case, and then parties and court must look for a continuation. In that situation, a realistic assessment has to be taken about the case and the availability of the parties. Here, it was the initial set date for trial where expansive options were available for trial but one party, the defence, simply was not available for an extended period of time. Therefore, I find from August 21 to January 6, a period of 4 months and 16 days should be attributed to defence delay. This was due to the total unavailability of defence counsel for this extended period. There is nothing on the record that suggests a finding other than this should be made.

[10] I agree that the August 21 date was a speedy date for trial offered to the parties. But that is a positive thing. There is nothing in the record before me that suggests somehow this was exceptional. The transcript reads similar to what normally occurs in the set date court. Therefore, it was not institutional delay that caused the delay after August 21 but the insistence of the defence not being available on any date before January 6th. That position required counsel to attend at the trial coordinator's office to make special arrangements.

[11] In addition to this calculation, no time has yet been considered as being required for defence preparation. May 17 to August 21 is a period of 3 months 5 days. In my view, in the absence of any specific evidence on this point, it is fair to attribute 1 month to defence preparation. Indeed, the defence concedes this. As a result, the actual institutional delay is only 2 months 5 days.

[12] Even if I am wrong about the calculation and the whole time period of May 17 to January 6 is attributed to institutional delay, when one takes into account the time required for preparation, the alternative scenario is that institutional delay is 6 months 21 days. That is still within the guidelines.

Trial Commencement and Continuation

[13] On January 6, 2014, the trial commenced. However it commenced in the afternoon after it was transferred out of the courtroom it was originally booked in. In the afternoon, the first witness for the Crown gave evidence but even his examination in chief could not be completed. I have carefully reviewed the transcript of that day. I find there were a number of reasons for the delay:

1. The trial was scheduled for a 4 hour trial. In the courtroom it was started in, another trial was given priority so it could not be started immediately. This is not an unusual occurrence. Further, it is the practice of this courthouse that where another court frees up its list, it offers assistance. This is what happened when my courtroom freed up and this case was transferred;

2. The Crown was not aware of the case was to proceed that day, had made a mistake and had to quickly assemble its case and witnesses. Thankfully the Crown was able to do that and all the witnesses were here to give evidence on January 6th. This ultimately did not create an impediment to finishing the case. No doubt though it may have factored into why the case could not start immediately;

3. Defence counsel had a sentencing matter before another judge in this courthouse. When my courtroom was freed up to try this case in the morning, counsel was not available as he was occupied in another courtroom. That sentencing apparently became unexpectedly more complicated and therefore counsel was not available until the afternoon;

4. Finally, it was abundantly clear that the parties underestimated the time required for the trial. The matter in my view could not be completed in the 4 hours scheduled when the date was originally set.

[14] For all these various reasons, the matter could not be completed on the first date. Since that time, the May 13th date was set. Earlier dates were offered but some dates the Crown was not available and some the defence was not. In this circumstance, different from the original trial set date appearance, counsel could not be expected to have their calendar so open that counsel would be available on the first date offered by the court.

[15] When I look at the reasons for why the matter got delayed after the trial commenced on January 6, it is clear to me that all parties should share responsibility for the delay. It was due to priority given to another case, the Crown error, the unavailability of the defence, the underestimation of time, and the fact both parties were not available on earlier dates. This delay should be treated as neutral in that it was a result inherent to the trial process itself and actions by both Crown and defence that lead to the fact the case could not begin and complete on January 6. This is a period of 4 months 7 days.

[16] Thus the operative delay in this case is really only 2 months 5 days of institutional delay. Even if I am wrong the operative institutional delay would be 6 months 21 days. The rest of the time is attributed to defence requirement to prepare, intake, and neutral time. The operative delay is well within the Morin guidelines.

A. Prejudice

[17] Both inferred prejudice and actual prejudice are considerations in the assessment of prejudice. In this case, the applicant has presented an affidavit. There has been some cross-examination on it.

[18] In this case, the only alleged prejudice is to Ms. Singh's security of the person.

[19] I do not find actual prejudice in this case. While Ms. Singh no doubt has been anxious about the charge, she has never sought any medical treatment for it. There is no other evidence confirming any significant prejudice in that regard. Further, while Ms. Singh is attempting to further her education in different ways, I do not see any significant prejudice being caused by the delay in that regard. Any prejudice realistically viewed comes from the fact she has been charged with a criminal offence and not the delay. As a result, I am not persuaded there has been actual prejudice in this case.

[20] I am not prepared to infer prejudice in this case. Here, the operative delay falls within the guidelines. The overall delay is further noted. This is not such a long and unreasonable delay that I find that prejudice should be inferred.

B. Balancing Societal Interests

[21] This is not a weighty factor given the total amount of operative delay at stake.

C. Conclusion

[22] The operative delay in this case falls within the Morin guidelines. There is no prejudice to lower that guideline. After considering all the factors, I find that the applicant has not proven a violation of her s. 11(b) right. The application is dismissed.

Released: May 29, 2014.

Signed: "Justice S. Nakatsuru"