Court File and Parties

Court File No.: 13-8092 Brampton Date: July 14, 2014 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — George Senathirajah

Before: Justice Richard H.K. Schwarzl

Application heard on: July 14, 2014

Reasons for section 11(b) Charter Ruling released on: July 14, 2014

Counsel:

• Mr. David D'Orio for the Crown/Respondent
• Mr. Peter Lindsay for the Accused/Applicant

SCHWARZL, J.:

Section 11(b) Charter Ruling

1.0: INTRODUCTION

[1] On May 24, 2013 the Applicant, Mr. George Senathirajah, was charged with Impaired Driving and Driving with Excess Alcohol, both contrary to Criminal Code. The Information was sworn on June 19, 2013. This case is scheduled for a one-day trial on July 21, 2014. The overall time between the swearing of the Information and the trial date is 1 year, 1 month, 3 days including the end date, or about 13¼ months.

[2] Mr. Senathirajah 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 Information to Setting the Trial Date: June 19, 2013 to July 5, 2013

[3] The alleged offences occurred on May 24, 2013. The Applicant was released unconditionally by means of a Promise to Appear with a first appearance on July 5, 2013. The Information was sworn on June 19, 2013.

[4] Prior to his first appearance, the Applicant hired counsel, Mr. Lindsay. On May 29, 2013 counsel sent a letter to the Crown Attorney making detailed disclosure requests regarding the approved screening device and approved instrument used by the police in the investigation. The letter went unanswered.

[5] On July 5, 2013 agent for counsel and for the Applicant appeared and received initial disclosure. The Applicant did not attend court. A mandatory "crown resolution" meeting took place the same day. The agent reminded Crown counsel of the outstanding disclosure request. Despite the outstanding disclosure request the Applicant set a one-day trial. The trial estimate was based on a two prosecution witnesses plus a defence involving expert toxicological evidence as well as claims that the Applicant's sections 7, 8, 9, and 10(b) Charter rights were violated.

[6] The time between the swearing of the Information and the setting of the trial date was ¾ of a month.

2.2: Setting the Trial Date to the First Trial Date: July 5, 2013 to March 10, 2014

[7] When the trial date was set on July 5, 2013 agent for the Applicant told the court that the defence was available for trial on dates commencing July 17, 2014. No other dates were provided to the Court at that time, but materials filed on the 11(b) Charter Application show that defence counsel was available for fifty-plus days leading into March 2014.

[8] The Trial Coordinator's Verification Sheet, attached to the Information, shows the court started offering trial dates in March, 2014. Of the four dates offered by the Trial Coordinator, the defence was not available on the first three, but was available on the fourth. The Crown was available on all dates offered. A trial was fixed for March 10, 2014.

[9] On February 10, 2014 – one month prior to trial - counsel for the Applicant wrote a follow-up disclosure request letter to his first disclosure letter written nearly 8½ months before.

[10] On February 19, 2014 the Crown Attorney faxed a form letter to Mr. Lindsay informing him that disclosure material was available for immediate pick-up at their office. The letter did not particularize what disclosure materials were available. Mr. Lindsay in his submissions advised me that his office received the letter but he never saw it and wasn't told about it.

[11] The time between setting the trial date and the first trial date itself was 8¼ months.

2.3: The First Trial Date: March 10, 2014

[12] The Applicant attended for his trial on March 10, 2014 however it did not proceed that day. Mr. Lindsay told the trial judge that he received a computer disk that morning regarding the long sought disclosure. He acknowledged that he was responsible for not picking it up sooner. When he examined the disk on the trial day, he noticed that it was (a) inaccurate because it referred to an approved instrument not used in this case and (b) incomplete because it contained no disclosure whatsoever regarding the approved screening device. After bringing the error to Crown counsel's attention, the prosecutor gave Mr. Lindsay one of his copies of the disk. Upon examining this replacement disk, Mr. Lindsay observed that it referred to the correct approved instrument, but otherwise continued to suffer from incomplete information. Accordingly the defence requested an adjournment of the trial in an effort to get the correct and complete disclosure.

[13] Crown counsel at trial did not oppose the adjournment in the circumstances and told Mr. Lindsay that he estimated it would take a month to obtain and then forward accurate and complete disclosure.

2.4: Setting the Second Trial Date to the Second Trial Date: March 10, 2014 to July 21, 2014

[14] When the second trial date was set on March 10, 2014 counsel for the Applicant told the court that the defence was available for trial on dates not offered by the court. No specific dates were provided at that time, but materials filed on the 11(b) Charter Application show that defence counsel was available for nineteen days commencing April 10 up to July, 2014.

[15] The Trial Coordinator's Verification Sheet, attached to the Information, shows the Court offered six trial dates starting in March, 2014. The first date offered was March 24, but both sides turned it down because of the one-month estimate of time needed to repair defective disclosure. Of the remaining five dates offered by the Trial Coordinator, the defence was not available on any but the last. The Crown was available on all dates offered other than May 15, which was also unavailable to the defence. A second trial date was fixed for July 21, 2014.

[16] On March 10, 2014 and upon returning to his office after court, Mr. Lindsay faxed a third formal disclosure request to the Crown Attorney's office. He received no reply.

[17] On May 13, 2014 Mr. Lindsay faxed the Crown Attorney yet another formal disclosure request. No action was taken by the Crown until Mr. D'Orio became involved on June 10, 2014. He seized the initiative, sorted out the disclosure fiasco, and within the week had rectified the situation. Mr. D'Orio notified Mr. Lindsay on June 16 that accurate and complete disclosure was ready. Mr. Lindsay received satisfactory disclosure via courier on June 19, 2014.

[18] The time between the first trial second trial dates is 4¼ months.

3.0: PREJUDICE TO THE APPLICANT

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

(a) A concern about the practical consequences of losing his driver's licence should he be found guilty;

(b) A concern about the stigma and consequences of acquiring a criminal record including effects on his employment and ability to participate in volunteer activities;

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

(d) Financial prejudice for having suffered costs of an expert witness thrown away by not proceeding on the scheduled trial date and additional expert costs for the second day, totalling nearly $1,850;

(e) He has suffered daily anxiety since being charged; and

(f) As time has passed his memory of relevant events might be diminished.

4.0: POSITIONS OF THE PARTIES

4.1: Applicant/Accused

[20] The Applicant submits that the approximately three weeks between laying the Information and setting the first trial date is neutral time as neutral inherent time requirements.

[21] The Applicant submits that the 8¼ month period between setting the trial date and the first trial date ought to be apportioned as follows: (a) one month as inherent time requirements due to trial preparation and notice restrictions for Charter applications and for expert evidence, and (b) the remaining 7¼ months as institutional delay.

[22] The Applicant further submits that the entire 4¼ month period between the first and second trial dates is attributable to actions by the Crown by (a) not replying to the initial disclosure requests (May and July 2013) in a timely manner, (b) by providing inaccurate and incomplete disclosure less than a month prior to the first trial date, (c) by providing incomplete disclosure on the trial date, and (d) by ignoring for two months further written requests for disclosure made after the trial was postponed. In the alternative, the defence submits that if not all the delay was caused by actions of the Crown, then the other contributing cause was limitations on institutional resources.

[23] The defence submits that unacceptable delay in this case tallies 12 months. Combined with the general and specific prejudice asserted by the Applicant, he seeks a judicial stay.

4.2: Respondent/Crown

[24] The Crown agrees that with the Applicant's assessment of the first ¾ months of this case.

[25] The Crown submits that with respect to the time between setting the trial and the first trial date, two months should be attributable to inherent time requirements: one month for basic preparation, and another month in recognition of the complexities of the matter.

[26] The Crown submits responsibility of the delay between the first and second trial dates should be apportioned equally between actions by the Crown and actions by the defence. Mr. D'Orio argued that the defence was not very diligent in pursuing its disclosure request prior to the first trial date which, in combination with the folly of the prosecution, contributed equally to the need for an adjournment.

[27] The Crown submits that the total period of unnecessary delay in this case is 8¼ months. When taking the situation as a whole in account, including minimal prejudice, the Crown argues that Mr. Senathirajah's section 11(b) Charter right has not been infringed.

5.0: APPLICABLE LEGAL PRINCIPLES

[28] 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 a probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.).

[29] 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.

[30] 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.

[31] 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.

[32] 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.).

[33] The actions of the Crown can contribute to the delay. Those actions include acts of the prosecution and acts of the police. The Crown is responsible for timely disclosure and for any lackadaisical conduct of the prosecution and the police: R. v. Stacey, [2002] O.J. No. 5143 (S.C.J.); R. v. Ouellette, [2011] O.J. No. 5010 (O.C.J.) at ¶ 55 to 58.

[34] The actions of the Applicant can contribute to delay. The defence must be diligent in pursuing disclosure in a timely manner: R. v. Dixon, [1998] S.C.J. No. 17 (S.C.C.); R. v. Bramwell, [1996] B.C.J. No. 503 (C.A.).

6.0: ANALYSIS

6.1: Reasons for Delay

[35] The total delay in this case from the date the Information was sworn to the second trial date is 13¼ months. The total delay is sufficiently long to require an assessment of whether the Applicant's section 11(b) Charter right has been violated.

[36] There has been no waivers by the Applicant in this case.

[37] Two months is an appropriate intake period for simple drink/drive cases: Morin, supra; Meisner, [2003] O.J. No. 1948 (S.C.J.). In this case, inside of one month of the Information being sworn basic disclosure had been given, the parties had conducted a resolution meeting, and they were ready to set a one day trial. The intake phase of this case was well within acceptable limits.

[38] I find that this is a somewhat complex case. One full day is required for trial due to the issues raised by the defence, including claims of Charter breaches and expert testimony. 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.

[39] 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 shorter term. 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. This is true whether the case is complex or just needs lots of time to litigate.

[40] 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 ; 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 institutional delay for straightforward cases in the Ontario Court of Justice is at the low end of the eight to ten months.

[41] A guideline, by definition, is not a bright line or 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.)

[42] In this case there will be multiple Charter applications. The Rules of the Court require a minimum of 30 days' notice prior to trial. The Criminal Code creates notice requirements for expert evidence. 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 as the issues and evidence require somewhat longer than a straightforward case would. In the circumstances of this case, I view the acceptable range of institutional delay as between 8 to 10 months: R. v. Reid, supra. At 6¼ months, the delay caused by limitations on institutional resources between setting the first trial date and the trial date itself is well within the acceptable range.

[43] With respect to actions of the Applicant, the defence was paradoxically both vigilant and tardy in pursuing disclosure. They commendably sought the extra disclosure before the first appearance date. Unfortunately, they did not follow up until more than eight months later and only one month prior to trial. In my view, they should have followed up much sooner than they did. Furthermore, the defence did not read or act upon the notice regarding further disclosure sent out by the Crown Attorney on February 19, 2014. Had they done so, they may have focussed the Crown's attention on this issue in advance of trial. I am satisfied that had the ongoing disclosure problem been raised even in late February, pressure may have been applied on, and by, the prosecution to properly resolve the issue before the first trial date. Although the trial Crown thought it would take month to sort out, it in fact took only one week once the Crown actually did anything about it.

[44] As for actions of the Crown, they also bear responsibility for the delay in this case. They failed to answer Mr. Lindsay's May 29, 2013 letter. They ignored his letter dated March 10, 2014, sent the very day of the aborted first trial and when the matter was fresh in everyone's mind. Crown counsel are barristers answerable to the Law Society of Upper Canada. They have professional duties to respond to correspondence in a timely manner. No reason was given for this improper, and repeated, conduct. The Peel Crown Attorney violated his professional obligations by not answering these two letters.

[45] When the Crown responded to Mr. Lindsay's February, 2014 letter they caused inaccurate and incomplete materials to be made available. They either deliberately or negligently failed to examine or review materials provided by the police to be sent to the defence. The police were at fault for sending lousy information. The error by the police was compounded on the trial date when the Crown handed over a second disk made by the police that corrected only some, but not all, of the problems of the first disk.

[46] Both sides contributed to the need to postpone the trial. The Court was ready and able to give meaningful early trial dates. There was no delay caused by limitations on institutional resources between the first and second trial dates. The delay in this period was caused by the comedy of errors perpetrated by both sides. Of the parties, I find that the defence's responsibility takes back seat to that of the police and Crown. The defence was tardy, but the Crown and police were outright negligent and irresponsible. Only when Mr. D'Orio took the reins was any semblance of order restored to the prosecution of this matter.

[47] Of the 4¼ months between the two trial dates, I apportion one month of the delay to actions of the Applicant and 3¼ months to actions of the Crown.

6.2: Prejudice Caused to the Applicant by the Overall Delay

6.2.1: General Prejudice

[48] 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] 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.

[49] 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), 104 O.R. (3d) 32 (C.A.).

[50] 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.

[51] 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.).

[52] 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.

[53] In Mr. Senathirajah'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. I do not find any inordinate general prejudice caused by delay in the case at bar.

6.2.2: Specific Prejudice

[54] Mr. Senathirajah's specific prejudice arises from two main sources: first, the enhanced anxiety caused by not having his trial when it was first scheduled and second, from the wasted and additional legal costs associated with having to attend on a second date due to a completely avoidable disclosure problem. While the defence carries some responsibility in the disclosure problem, specific prejudice was caused by the neglectful and sloppy conduct of the Crown and police in dealing with the issue prior to Mr. D'Orio's intervention. In balancing this real specific prejudice with all of the circumstances and weighing it against society's interest in proceeding with a trial on its merits, I find palpable specific prejudice to the Applicant in this case.

7.0: CONCLUSIONS

[55] For the foregoing reasons, I have apportioned the delay over the entire 13¼ months of this case as follows:

Category	Duration
Inherent Time Requirements (neutral)	2¾ months
Limitations on Institutional Resources	6¼ months
Actions of the Applicant	1 month
Actions of the Crown	3¼ months
TOTAL	13¼ months

[56] 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 well within the limit of what is reasonable;

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

(c) the institutional delay is well within the boundary of accepted reasonable range for Peel Region for somewhat complex cases;

(d) the Applicant was lax in his first follow-up regarding disclosure;

(e) the Crown and police were unacceptably negligent in regarding the disclosure issue until well after the second trial date had been set, and only after additional prodding by the Applicant; and

(f) the specific prejudice to the Applicant caused by the overall delay was real.

[57] Balancing all of the circumstances and the reasons for delay, I find that the Applicant has demonstrated 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 granted and the charges judicially stayed.

Original signed by The Honourable Justice Richard H.K. Schwarzl

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

Footnotes

[1] 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. Allen, supra; R. v. Qureshi, [2004] O.J. No. 4711 (C.A.).

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

[5] 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.

[6] 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.

[7] R. v. Lahiry, supra at ¶ 158 to 160.

[8] ¾ months as intake; 2 months for trial preparation.