Court File and Parties

Court File No.: 13-9635 Brampton Date: July 3, 2014 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Stephen Skuta

Before: Justice Richard H.K. Schwarzl

Application heard on: July 3, 2014

Reasons for section 11(b) Charter Ruling released on: July 3, 2014

Counsel:

• Ms. Carrie Vandenbroek, for the Crown/Respondent
• Mr. Douglas Lent, for the Accused/Applicant

SCHWARZL, J.:

Section 11(b) Charter Ruling

1.0: INTRODUCTION

[1] On July 12, 2013 the Applicant, Mr. Stephen Skuta, was charged with Criminal Code and Highway Traffic Act driving offences. The Informations were sworn on July 23, 2013. This case is scheduled for a two-day trial on September 5 and 15, 2014. The overall time between the swearing of the Informations and the second trial date is 1 year, 1 month, 24 days including the end date, or 13¾ months.

[2] Mr. Skuta has applied to the Court to find that in the circumstances of this case his right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") has been violated and as a remedy he seeks a stay of proceedings. The Crown opposes the application.

2.0: CHRONOLOGY OF EVENTS

2.1: Date of Swearing of the Informations to Setting the Trial Dates: July 23, 2013 to September 23, 2013

[3] The alleged offences occurred on July 12, 2013 at the City of Brampton. The Applicant was released unconditionally by means of a Promise to Appear with a first appearance on July 24, 2013. The Informations were sworn on July 23, 2013.

[4] On July 24, 2013 the Applicant appeared in person and received initial disclosure. The Applicant requested eight weeks in order to review the disclosure materials and retain counsel. The case was adjourned to September 18, 2013.

[5] On September 18, 2013 agent for defence counsel appeared on behalf of the Applicant. She advised the court that a resolution meeting with Crown counsel had been conducted and a Judicial Pre-Trial Conference (JPT) should be scheduled due to trial time estimates. A JPT was fixed for September 23, 2013, or five days in the future. After the JPT, trial dates were scheduled.

[6] The time between the swearing of the Informations and the setting of the trial dates was two months.

2.2: Setting of the Trial Dates to the Trial Dates: September 23, 2013 to September 5 and 15, 2014

[7] On September 23, 2013 a Judicial Pre-Trial Conference was held. Counsel appeared on behalf of the Applicant at this appearance. It was agreed that a two-day trial was required, although in his submissions Mr. Lent felt that one day would be adequate. When I asked why two days were needed, the parties advised me that this case involves a three-car collision. It is anticipated that the prosecution will lead evidence from three eyewitnesses and from three police officers. The Crown will seek to tender statements against interest made by the Applicant to police officers. The defence says a voluntariness voir dire will be required. The defence intends to bring Charter applications for purported sections 8 and 10(b) violations.

[8] When the trial dates were set, defence counsel filed a letter showing his dates of availability between October, 2013 and September, 2014. His first date was a single day in early October. He was available for two days in a row in November, 2013 and for two days near each other in each month from February 2014 onward. The Trial Coordinator's Verification Sheet, attached to the Criminal Code Information, shows they started offering trial dates in August, 2014. Of the seven dates offered by the Trial Coordinator, the defence was not available on the first date, but available on all other dates. The Crown was unavailable on any date other than the ones that were ultimately set.

[9] The time between setting the trial dates and the trial dates themselves is 11¾ months.

3.0: PREJUDICE TO THE APPLICANT

[10] The Applicant swore an affidavit in which he declared the following prejudice:

(a) A concern about losing his driver's licence should he be found guilty because he needs to drive for employment purposes;

(b) A concern about the stigma of being found guilty of a crime;

(c) A concern about the financial consequences of being found guilty of a driving related offence;

(d) He has suffered daily anxiety since being charged, feeling like he is on an emotional rollercoaster; and

(e) As time has passed witnesses' memory of relevant events might be diminished.

4.0: POSITIONS OF THE PARTIES

4.1: Applicant/Accused

[11] The Applicant submits that he was ready to set a trial date on September 18, 2013 but couldn't because he had to have a JPT due to the time estimate of two days. He says the additional 5 day delay to the JPT date is institutional delay.

[12] The Applicant submits that the entire 11¾ month period after setting the trial dates is institutional delay and falls outside the 8 to 9 months range of institutional delay tolerable in Peel Region.

[13] Third, the Applicant submits that he was available for trial as early as October, 2013, or less than one month after the judicial pre-trial conference and was available each month thereafter. The Applicant submits that it was unreasonable for the court to offer trial dates commencing in early August 2014, nearly 11 months into the future.

4.2: Respondent/Crown

[14] The Crown submits the overall delay and the reasons for that delay were not unreasonable. They submit that the institutional delay is outside the guidelines for this region, but that the institutional delay in this case is tolerable. The Crown argued that the bulk of the prejudice claimed by the Applicant arises from being charged and not by delay. The Crown submits that when taking the situation as a whole Mr. Skuta's section 11(b) Charter right has not been infringed.

5.0: APPLICABLE LEGAL PRINCIPLES

[15] All persons enjoy the right to be tried within a reasonable time as enshrined in section 11(b) of the Charter. It is presumed that the state has respected that right and the burden is on the Applicant to establish on a balance of probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.).

[16] The 11(b) clock starts running when the Information was sworn. R. v. Kalanj, [1989] 1 S.C.R. 1594 (S.C.C.) at p. 1607.

[17] There is no cut-off or stale date at which the length of the trial process becomes automatically unreasonable. The determination of whether a delay has been unreasonable requires an assessment of the entire time from the time of the swearing of the Information to the end of the trial: R. v. Allen (1997), 110 C.C.C. (3d) 331 (Ont. C.A.), affirmed , 119 C.C.C. (3d) 1 (S.C.C.); R. v. Morin, supra at ¶ 32 – 36.

[18] Some delay in bringing a matter to trial is inevitable. In assessing whether the entire time is unreasonable, courts must balance a myriad of factors identified by the Supreme Court in Morin, supra. Those factors are:

(a) The length of the delay;

(b) The waiver of any delay by the Applicant;

(c) The reasons for the delay, including:

(i.) The inherent time requirements of the case;

(ii.) The actions of the Accused/Applicant;

(iii.) The actions of the Crown including the police;

(iv.) Limits on institutional resources; and

(v.) Other reasons for delay; and

(d) Prejudice to the Applicant caused by the delay.

[19] With respect to the concept of "inherent time requirements" it encompasses a number of aspects including: (a) the intake period of the case; (b) the court time required to try the case; (c) adjournments required to find additional court time to try the case when the initial time estimates prove inaccurate; (d) the complexity of the case; (e) the need for a JPT; and (f) reasonable time to prepare for the hearing. The inherent time requirements of a case are considered neutral in the 11(b) analysis and are not included in systemic delay: R. v. Ferguson, [2005] O.J. No. 3442 (S.C.J.) at ¶140 – 149; R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.).

6.0: ANALYSIS

6.1: Reasons for Delay

[20] The total delay in this case from the date the Informations were sworn to the second trial date is 13¾ months. The total delay is sufficiently long to require an assessment of whether the Applicant's section 11(b) Charter right has been violated.

[21] There has been no explicit waiver by the Applicant in this case. No actions of the Applicant or of the Crown contributed to the delay.

[22] Two months is an appropriate intake period for simple drink/drive cases: Morin, supra; Meisner, [2003] O.J. No. 1948 (S.C.J.). In the case at bar, within two months of the Informations being sworn disclosure had been given, the parties had conducted a resolution meeting, a judicial pre-trial conference was held and the parties were ready to set a two day trial. This matter has thus conformed to an acceptable neutral intake time of two months.

[23] I reject the defence argument that the JPT caused any delay. Not only is such a step part of acceptable inherent time requirements where the case may take more than one day to try, but in this case it was held promptly and within the traditionally acceptable overall intake period of two months.

[24] This case is somewhat complex given that two days are required for trial due to the issues and number of witnesses. Since the advent of the Charter over thirty years ago, trial time for many cases involving Charter claims, particularly in drink-drive cases, has ballooned. It is common that drink-drive cases with Charter issues take at least one full court day or more to complete. This reality was recognized by Code, J in R. v. Lahiry, supra, where he noted:

158 ... It will be remembered that Darlene Morin was charged with both impaired driving and "over 80". On the trial date, in early 1989, her counsel argued the s. 11(b) Motion unsuccessfully and then conducted the trial on the merits. The Crown called the arresting officer and the breathalyzer technician and filed one exhibit (the breathalyzer certificate of analysis). No defence evidence was called. The trial evidence was described as "brief, covering only thirty-eight pages of trial transcript". The entire case, including the s. 11(b) Motion, must have taken no more than an hour, or two hours at the most. See: R. v. Morin (1990), 55 C.C.C. (3d) 209 at pp. 217-218 (Ont. C.A.).

159 Modern drinking and driving trials, such as the cases under appeal, bear no resemblance to Morin's Case. In Lahiry, a full day was set aside for a one witness trial and Motion. In Davidson, two full days were set aside for the trial and a further half day was set aside for the Motion. In Carreira, four hours was scheduled for trial but then it expanded and ended up taking between two and three full days. Four hours was scheduled for the Shelson trial.

160 The Supreme Court of Canada was setting standards for short, efficient, high volume summary trials in Morin's Case. The four cases under appeal do not fit this description. ...

[25] It is a matter of common sense that the simpler and shorter the case, the greater the expectation that the matter will be tried in the nearer future. Conversely, it is equally true that if more time is needed to try a case one will have to look deeper into the court calendar to accommodate it.

[26] In Peel Region, the guideline for bringing a "straightforward" matter to trial in Ontario Court is eight to nine months of institutional delay: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.) affirmed , [2004] O.J. No. 3812 (C.A.); R. v. Rego, [2005] O.J. No. 4768 (C.A.); R. v. Reid, [2005] O.J. No. 5618 (S.C.J.). In Reid, Durno J stated that if the matter is somewhat more than a straightforward case, it may extend the Peel guideline to 8 to 10 months of institutional delay. In R. v. Purewal, [2014] O.J. No. 2824 (S.C.J.) at ¶ 71, Durno J reiterated that in Peel Region, the tolerable period of delay in the Ontario Court is at the low end of the eight to ten months.

[27] A guideline, by definition, is not a bright line nor a hard-and-fast rule: R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.); R. v. Ratneswaran, [2013] O.J. No. 5037 (S.C.J.). Section 11(b) Charter applications must be assessed on a case by case basis as opposed to applying the guidelines as though they were legislated limitation periods. A deviation of several months in either direction from the guidelines can be justified by the presence or absence of prejudice: Morin, at p. 28. Where the delay is on the edge of what is constitutionally tolerable, the issue of prejudice will be important to the outcome: R. v. Campagnaro, [2005] O.J. No. 4880 (C.A.).

[28] This case is somewhat complex. In this case there will be Charter applications. The Rules of the Court require a minimum of 30 days' notice prior to trial. The first date of availability to the defence being early October 2013 therefore does not assist the Applicant in this analysis given his obligations under those rules. I would assess a reasonable period of time for the parties to properly prepare a somewhat complex case after the trial date is set at two months. Coincidentally, the defence was not available for two days close together until late November, 2013 some two months out from the set date.

[29] Given that this case is somewhat complex, I would view the acceptable range of institutional delay as between 8 to 10 months: R. v. Reid, supra.

[30] In consideration of all of the various factors at play in the 11¾ month period between setting the trial dates and the second trial date I apportion the time as follows: two months for neutral inherent time and the remaining 9¾ months as limitations on institutional resources. Even applying the guideline range of 8 to 9 months of institutional delay, the institutional delay in this case barely exceeds that range: R. v. Kovacs-Tatar, [2004] O.J. No. 4756 (C.A.); R. v. Apolinario, [2007] O.J. No. 4788 (S.C.J.) at ¶ 138 – 140.

6.2: Prejudice Caused to the Applicant by the Overall Delay

6.2.1: General Prejudice

[31] Section 11(b) of the Charter is designed to guard against prejudicing a person's rights to (i) liberty, (ii) security of the person, and (iii) to make full answer and defence: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.). In the case at bar, it is only the second and third rights that must be assessed given that the Applicant is out of custody.

[32] Prejudice to these rights can be inferred the longer the overall delay. Delay, in and of itself, can be expected to have a detrimental effect on a fair trial: R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689, 104 O.R. (3d) 32 (C.A.). Here, the defence says that any delay beyond the 8 to 9 month guideline for Peel exacerbated the inferred delay.

[33] Conduct of the Applicant which is inconsistent with a desire for a timely trial is something that the court must consider in evaluating the degree of prejudice, if any, suffered by the accused: R. v. Morin, supra, at ¶ 62. In this case, there is nothing to suggest that the Applicant has been in any way content with the pace of this litigation. To the contrary, the Applicant appears from the outset to have been most anxious to move this matter forward. The Crown also appears to have moved this matter forward with reasonable diligence.

[34] Prejudice to the Applicant must be balanced with society's interest in adjudicating matters on their merits: Morin, supra at ¶ 26 – 30; R. v. Seegmiller, [2004] O.J. No. 5004 (C.A.); R. v. Kporwodu, [2005] O.J. No. 1405 (C.A.). This balancing of the Applicant's interests and society's interest in a trial on the merits is even more important where the charges are serious: R. v. Seegmiller, supra. No one would doubt that drink-drive crimes are indeed serious: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.).

[35] The focus of the prejudice inquiry is on prejudice caused by the delay, not from being charged: R. v. Rahey (1987), 33 C.C.C. (3d) 289 (S.C.C.); R. v. Pusic (1996), 30 O.R. (3d) 692 (Gen.Div.); R. v. A.K. and A.V., [2005] O.J. No. 1405 (C.A.) at ¶ 157; R. v. Patel, [2014] O.J. No. 2777 (S.C.J.) at ¶ 93.

[36] In Mr. Skuta's case some, but not much, general prejudice has occurred due to delay. The vast bulk of the general prejudice in this case arises not from delay, but from being charged in the first place.

[37] In considering the social toll of drunk driving as recognized by the Supreme Court, it is somewhat confounding that the Ontario Court of Justice is restricted in its institutional resources such that earlier dates could not have been offered to the parties in a case like this. Both the public and charged persons suffer prejudice when judicial resources are insufficiently marshalled or deployed. Having said this, on balance, I do not find any inordinate general prejudice caused by delay in the case at bar.

6.2.2: Specific Prejudice

[38] Mr. Skuta's specific prejudice arises from some enhanced anxiety of not being offered trial dates until quite far into the future. In balancing this modest specific prejudice with all of the circumstances and weighing it against society's interest in proceeding with a trial on its merits, I cannot find that any meaningful specific prejudice to the Applicant in this case.

7.0: CONCLUSIONS

[39] For the foregoing reasons, I have apportioned the delay over the entire 13¾ months of this case as follows:

Inherent Time Requirements (neutral): 4 months

Limitations on Institutional Resources: 9¾ months

TOTAL: 13¾ months

[40] In assessing whether or not the overall delay in this case was unreasonable, I have taken into account the following:

(a) the intake period was within limit of what is reasonable;

(b) there is acceptable neutral time as inherent time requirements;

(c) the institutional delay is approaching but not beyond the boundary of accepted reasonable range for Peel Region for somewhat complex cases; and

(d) any prejudice to the Applicant caused by the overall delay was minimal.

[41] Balancing all of the circumstances and the reasons for delay, I find that the Applicant has failed to demonstrate that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter was probably violated in this case. The application is dismissed and this trial will proceed as scheduled on September 5 and 15, 2014.

ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

Footnotes

[1] The intake period for a case represents not only the time it takes from the laying of the Information until the parties are meaningfully ready to set a trial, but also a reasonable period of time for the parties to prepare once the trial date is set: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 at ¶ 27 – 30.

[2] R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) at ¶ 55; R. v. Purewal, [2014] O.J. No. 2824 (S.C.J.) at ¶ 93 – 94.

[3] R. v. Purewal, supra at ¶ 97 – 99.

[4] Delay needed to schedule a Judicial Pre-Trial (JPT) is institutional delay and the period between the scheduling of the JPT and the hearing as inherent time requirements: R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) at ¶ 33 – 37; R. v. Emanuel, 2012 ONSC 1132, [2012] O.J. No. 709 (S.C.J.), at ¶ 16, 20-21; R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 (C.A.) at ¶ 54.

[5] Parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them: R. v. M.(N.N.) (2006), 209 C.C.C. (3d) 436 (Ont. C.A.); R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) at ¶ 32.

[6] 2 months as intake; 2 months for trial preparation.