Ontario Court of Justice

Date: 2014-08-06

Court File No.: Halton File No. 13-135

Between:

Her Majesty the Queen

— AND —

John Wells

Before: Justice Sheilagh O'Connell

Heard on: February 7 and February 18, 2014

Ruling delivered on: February 18, 2014

Written Reasons

Counsel:

• Mary Ward, counsel for the Crown
• Michael Engel, for the defendant John Wells

O'CONNELL J.:

1. INTRODUCTION:

[1] John Wells was charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 mgs of alcohol in 100 mls of blood, contrary to section 253(1)(b) of the Criminal Code, possession of a controlled substance, contrary to section 4(1) of the Controlled Drugs and Substances Act, and three Highway Traffic Act offences.

[2] Mr. Wells sought a judicial stay of these proceedings under section 24(1) of the Charter of Rights and Freedoms (the "Charter"). He alleged that his right to a trial within a reasonable time under section 11(b) of the Charter had been infringed.

[3] Mr. Wells was arrested and charged with these offences on January 4, 2013. After five court appearances, on June 4, 2013, trial dates were set for April 2nd and 4th, 2014, more than fifteen months after Mr. Wells was charged.

[4] Section 11(b) of the Charter protects the right to a trial within a reasonable time. The question in this case is whether the delay is unreasonable, having regard to the factors and framework set out by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771 and R. v. Askov, [1991] 1 S.C.R. 771.

[5] Mr. Wells' application was heard on February 7th and February 18th, 2014. On February 18, 2014, I determined that his right to a trial within a reasonable time had been infringed and ruled that the charges be stayed, with written reasons to follow. These are my reasons.

2. CHRONOLOGY:

[6] The chronology of events, as evidenced by Mr. Wells' affidavit and the transcripts filed of all court appearances, is as follows:

a. January 4, 2013: Mr. Wells is arrested and charged with the offences. After his arrest and the obtaining of breath samples, he was taken to the Oakville Trafalgar Hospital for a psychiatric assessment. He was held there until the next day, when he was released on a Promise to Appear.

b. January 22, 2013: First appearance in court. Mr. Wells was provided with some initial disclosure, including the breath room DVD, and screening form. He requests a four week adjournment to review the disclosure and retain counsel.

c. February 19, 2013: Second appearance in court. Mr. Wells has retained Mr. Engel as counsel. An agent appears and files a designation. The matter is adjourned to March 19, 2013.

d. March 2, 2013: Mr. Engel writes to the Crown and requests additional disclosure, including the following, as set out in his letter:

"Please also provide me with the entirety of his videotaped activities on the date of his arrest including any taken at the scene as well all his activities at the police station including his arrival, booking, cell surveillance and release. In the alternative, if there either is no video or if only part of what is requested can be provided, please advise precisely as to why that is."

In Addition:

1. The Maintenance and Calibration Log for the particular instrument.
2. The two annual maintenance reports preceding the subject test date.
3. The Alcohol Standard Log for the particular instrument for the six week period preceding the subject test date.
4. The Device Usage Log for the particular instrument for the six week period preceding the subject test date.
5. The "Certificate of a Qualified Analyst, Standard Alcohol Solution" for the alcohol standard used to verify the operation of the particular device for the period preceding the date of the alleged offence.
6. Any other operator-generated or breath technician-generated documents pertaining to this particular device.

e. March 19, 2013: Third appearance in court. An agent for Mr. Engel appears and the matter is adjourned to April 16, 2013, as Mr. Engel is waiting for the further disclosure requested. The Crown confirms that the disclosure requested is not available at that time and the matter is adjourned to "receive further disclosure."

f. April 5, 2013: In a letter dated April 5, 2013, the Crown provides some of the disclosure requested in Mr. Engel's March 2, 2013 letter, but there is still outstanding disclosure, including the full maintenance and calibration records for both the roadside device and the Intoxilyzer, the booking video, sally port video and cell video and certificate of analysis.

g. April 16, 2013: Fourth appearance in court. Agent appears and the matter is again adjourned as Mr. Engel is waiting for disclosure. The Crown advises the court that the further disclosure has arrived and it will be sent out later today. The Crown requests that defence counsel schedule a resolution meeting with the Crown. The matter is adjourned to May 7, 2013.

h. April 22, 2013: In a letter dated April 22, 2013, the Crown provides the booking video, sally port video, cell video, and the Certificate of An Analyst. However, there was no audio on some of the videos.

i. May 7, 2013: Fifth appearance in court. Agent appears on behalf of Mr. Engel and requests a further adjournment for outstanding disclosure of the maintenance and calibration records for both the roadside devices and the Intoxilyzer. The defence is requesting four weeks for the disclosure, but agrees to conduct a resolution meeting with the Crown in the interim. The matter is adjourned to June 4, 2013 for outstanding disclosure and to conduct a resolution meeting.

j. May 30, 2013: Crown resolution meeting (pretrial) conducted with counsel.

k. June 4, 2013: Sixth court appearance. The trial dates of April 4, 2014 and April 14, 2014 are set (ten months later). Earliest available dates. An interim date of August 23, 2013 is set for a judicial pretrial.

l. August 23, 2013: Judicial pretrial conducted with counsel. Trial dates confirmed. Request for the booking sheet in lieu of audio on the video and other pending disclosure.

3. THE LAW AND GOVERNING PRINCIPLES:

[7] An 11(b) analysis requires a balancing of two distinct rights: the individual rights of the accused and general societal rights. As Mr. Justice Laskin explained in R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.), at paras. 8 and 9:

"Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1 (S.C.C.) at p. 12.

Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. See R. v. MacDougall, [1998] 3 S.C.R. 45, 128 C.C.C. (3d) 483 (S.C.C.) at p. 496."

[8] In R. v. Morin, supra, the Supreme Court of Canada sets out the four factors that a court must consider in assessing whether there has been a violation of a right to a trial within a reasonable time as follows:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including:
   • a) the inherent time requirements of the case
   • b) the actions of the accused
   • c) the actions of the Crown
   • d) the limits on institutional resources
   • e) any other reason for the delay; and
4. Prejudice to the accused

[9] No single factor is determinative. What is required is a balancing of all of the Morin factors in determining whether Mr. Wells' right to a trial within a reasonable time has been breached. The s. 11(b) exercise involves "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 delay". See R. v. Morin, at para. 31.

[10] The defendant bears the legal burden of establishing that his section 11(b) right has been violated. If a breach of section 11(b) has been established, then a stay is the "minimal remedy". No flexibility exists, a stay of the proceedings must be ordered. See Rahey v. The Queen, [1987] 1 S.C.R. 588 at page 615; R. v. Thompson, [2009] O.J. No. 4586 (C.A.) at paragraph 9.

[11] In R. v. Papandrea, [2012] O.J. No. 4880, 2012 ONCJ 651, 270 C.R.R. (2d) 90, Justice S.D. Brown summarizes the legal principles established by the Supreme Court of Canada in Morin and cases that followed at paragraphs 7 and 8 of his decision:

[7] In R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:

18 The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessed by looking at 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, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

[8] The Court went on to restate, "... that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice". The Court further stated at paragraph 37 and 38 that:

37 It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

38 Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.

4. APPLICATION OF THE LEGAL PRINCIPLES TO THIS CASE:

1. The Length of the Delay:

[12] The total time from the charge to the first date of trial in this matter was 15 months. This period of time is of sufficient length to merit a review of the reasonableness of the delay. The Crown concedes this.

2. Waiver of Some or all of the Time Periods:

[13] The applicant did not waive any period of delay in this case. The Crown acknowledged this during submissions.

3. The Reasons for the Delay:

a. Inherent Time Requirements of the Case:

[14] In R. v. Morin, supra, a reasonable intake period for a simple uncomplicated case was suggested to be two months. This time period is considered to be neutral when assessing delay under an 11(b) analysis.

[15] The Crown submits that the intake period in this case should be four months, from January 4, 2013, the date of the initial charge to May 7, 2013, when, according to the Crown, complete disclosure was received by the Applicant. Although it acknowledges that this was "a simple drinking and driving case", the Crown submits that there should be a longer intake period because the Applicant refused to proceed with setting trial dates in this matter before disclosure was received. According to the factum filed on behalf of the Crown, "the Crown's obligation to provide disclosure is a continuing one, the Crown is not obligated to disclose every last bit of evidence before a trial date is set."

[16] The Defence submits that the intake period should be two months and that a period of three months, from February 19th, 2013 to May 7, 2013, should be attributed to the delay in Crown disclosure.

[17] This case was not complex. It involved a routine vehicle stop and breath test. The investigation was complete on the night of the arrest. The officer's notes, the videos at the police station, and the machine calibration records were all completed that night. Mr. Wells retained counsel promptly, who obtained and reviewed disclosure. The trial time needed was estimated to be two days by both parties, which the judicial pre-trial judge agreed was a realistic time estimate, as a voir dire on a section 10(b) Charter issue was required. It is not disputed that defence counsel is a very experienced criminal lawyer, particularly in drinking and driving cases.

[18] In my view, there is no reason why the intake period should be longer than 2.5 months, in light of the additional disclosure requested on March 2, 2013. It should not take the Crown four months to provide the disclosure requested, as submitted. The applicant was not refusing to set a date for trial and in fact agreed to a resolution meeting even though disclosure had not been completed. The applicant also agreed to set trial dates without all of the disclosure requested. According to the judicial pretrial case management form, dated August 23, 2013, and signed by both counsel and the judicial pretrial judge, the applicant was still awaiting the booking sheet (in lieu of audio) and further disclosure from the Intoxilyzer technician regarding the set-up of the instrument and the booking sheet.

b. Actions of the Accused:

[19] In my view, the actions of the applicant did not contribute to the significant delay in these proceedings. He retained counsel promptly, who obtained and reviewed disclosure and requested disclosure in timely fashion. He did not bring any motions that delayed the initial proceedings.

[20] The Crown submits that disclosure was largely completed on April 22, 2013 and that the applicant delayed conducting a Crown pretrial until May 7, 2013, over a month from when disclosure was provided. It is clear from a review of the transcripts that as of May 7, Mr. Engel was still awaiting the full maintenance and calibration records for both the roadside devices and the Intoxilyzer. Nevertheless, he did agree to schedule a Crown pretrial after that court appearance. This meeting was scheduled for May 30, 2013. No reason was provided for the delay of three weeks in scheduling that date. I will therefore attribute that delay of three weeks to the applicant.

c. Actions of the Crown

[21] Mr. Engel requested the additional disclosure on March 2, 2013, two weeks after he was retained by Mr. Wells. The disclosure request was relevant and not unreasonable in the circumstances of this case, specifically the request for the full maintenance and calibration records and the entire video of Mr. Wells' dealings with the police on the night in question. I appreciate that it may have taken the Crown some time to gather this additional disclosure, and as indicated earlier, I have added two weeks to the inherent time requirements or neutral time. However, there was nothing unusual in the disclosure requested, and it is difficult to understand the delay in providing it, particularly given the recognition by the Supreme Court of Canada of the importance of securing full maintenance and calibration records by the defence in these cases. See R. v. St-Onge Lamoureux 2012 SCC 57, [2012] S.C.J. No. 57 at paragraph 78.

[22] As well, in this case, Mr. Wells was transported to a mental health facility and detained for 24 hours after providing breath samples and an apparent waiver of counsel. The 'right to counsel' was a live issue. The entire videos, including the booking video, the sally port video and the cell video were provided on April 22, 2013, approximately seven weeks after the March 2nd request however, there was no audio. The Crown then agreed to provide the booking sheet given the lack of audio on these videos. This was still outstanding at the August 23, 2013 judicial pretrial.

[23] In my view, the delay in providing disclosure led to a delay in scheduling the trial. The delay attributed to the Crown should be from two weeks after the March 2, 2013 request for further disclosure to June 4th, 2013, when the trial dates were finally set, a period of 2.5 months. Even then, the full disclosure had not been provided.

d. The Limits on Institutional Resources

[24] This time period is defined as the times that the parties are ready for trial but the system cannot accommodate them. The Defence submits that on June 4, 2013, when the trial dates were actually set, the earliest available dates were April 2nd and April 14th, 2014, with an interim date of August 23, 2013 set for the purpose of a judicial pretrial. As a result, this time period of 10 months should be characterized as institutional delay.

[25] In a letter dated June 4, 2013, and filed as an exhibit in this application, defence counsel wrote to the Crown, to be delivered by hand in court on June 4, 2013 as follows:

"Further to the pretrial that was conducted last week wherein we discussed the merits of the case as well as outstanding disclosure, Mr. Wells advises that he is anxious to get on with the matter and wants to set a date to proceed. He is in fact prepared to do so today on a with or without counsel basis.

As discussed, subject to a review of the balance of the maintenance and calibration data that I'm awaiting, this case is expected to occupy 1-2 days given the Charter issues referred to and the possibility of a defence expert. I understand that you are presently setting full day trials in the new year. It was also agreed that we would also fix an interim date for the purpose of a judicial pretrial as well as confirmation of my retainer. Without going on the record, I am available a follows:

Dec 1-18 except 6 and 13 Jan 6-30 except 10, 17 and 24 Feb. 1-11 except 7 Mar. 24-31 except 28 April any day except 4, 10, 11, 18 and 25 May any day except 2, 9, 16, 23 and 30

I trust that one of these dates will be convenient to the court. Should any unforeseen difficulty arise or if any further dates are required, please have my agent, Mr. Brooks contact me to so advise."

[26] Defence counsel states that his letter dated June 4, 2013 was drafted on the premise that after the first available full day for trial dates were not available until the new year. This is the information that he was provided after the Crown pre-trial and why he provided all of his dates starting from December of 2013. Mr. Engel states that he was never disabused of the fact that the first trial dates available were not until the new year. He submits that he was ready and willing to conduct Mr. Wells' trial on virtually "any week or month before then that may have been offered." The affidavit and viva voce evidence of Mr. Wells supports this assertion. The Crown did not challenge Mr. Wells' assertion of the availability of his counsel.

[27] The Crown submits that these trial dates were scheduled so far in advance because defence counsel did not have any available dates until December of 2013 and that the April 2014 dates were the earliest available dates for trial in the Halton region after December of 2013.

[28] The Crown submits that there is no evidence that Mr. Engel's letter dated June 4, 2013 was ever filed with the court, and that according to the transcript of the proceedings before the Justice of the Peace on June 4, 2013, when the trial dates were set, the agent appearing on behalf of Mr. Engel that day did not file the letter and only advised that, "Mr. Engel did provide me with a letter with available dates for trial starting in December of this year." The Crown submits that this was the reason the trial dates were set in April of 2014 as the only available trial dates after December of 2013 were in April. According to the Crown, there may have been earlier trial dates available.

[29] Respectfully, I do not agree with these submissions. The evidence is uncontradicted that Mr. Engel was ready and willing to conduct the trial in this matter on any week or month before the trial dates were offered. Mr. Engel's letter of June 4, 2013 clearly states, "I understand that your are presently setting full day trials in the new year." The dates provided by Mr. Engel are then set out for that time period in his letter. The letter was filed as an exhibit in this application. This clearly supports the evidence that the first available dates provided for trial were in the new year. This length of time, regrettably, is not unusual, based on my experience of the limited judicial resources in this region.

[30] The Crown offered no documentary evidence or otherwise to contradict this evidence. As an officer of the court, Mr. Engel reiterated in his submissions that he was advised that the first available trial dates were not being scheduled until the new year. In cross-examination, Mr. Wells confirmed this understanding and information. If this information was not correct, then the Crown would surely have advised Mr. Engel immediately, given the Crown's responsibility to ensure that cases are brought to trial.

[31] I find that the period between the date that the trial dates were set and the first trial date is 10 months. In R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.), the Ontario Court of Appeal held that "parties should not be deemed automatically to be ready to conduct a hearing as of the date the hearing is set. Counsel requires time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing... and these times are part of the inherent time requirements of the case." Given the nature of the case, and Mr. Engel's level of expertise and experience, I deduct two weeks from the above 10 month period for trial preparation, thus attributing 9.5 months to institutional delay.

[32] I therefore accept the calculations of the applicant that the total institutional delay is 9.5 months. Added to that the Crown disclosure delay of 2.5 months, I find that the total institutional delay in this matter to be 12 months.

e. Other Reasons for the Delay:

[33] There are no other reasons for the delay in this case.

4. Prejudice to the Accused:

[34] In R. v. Godin, supra, Justice Cromwell, writing for the Supreme Court of Canada, provides the following guidance to courts when assessing the prejudice to the accused within the Morin framework, at paragraphs 30 and 31 of that decision:

"30 Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

31 The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.""

[35] The prejudice that arises simply from the fact of being charged should not factor into this analysis. As stated by Justice B. Duncan, in R. v. Egorov [2005] O.J. No. 6171 at paragraph 7:

"It is clear that prejudice in the section 11(b) analysis relates to prejudice that flows from delay and not from the fact of being charged: See R. v. Pusic (1996), 30 O.R. (3d) 692 a P 721 line a; R. v. Kovacs Tatar, [2004] O.J. No. 4756, Nov 22, 2004 para. 33. Nevertheless, prolongation of proceedings can cause what was initially charge prejudice to become prejudice caused by institutional delay due to a delay beyond the guidelines."

[36] Mr. Wells filed an affidavit in support of his application setting out the actual prejudice that he states that he has suffered. He was cross-examined by the Crown on his affidavit.

[37] Mr. Wells is 21 years old. He has no criminal record and apart from the charges before the court, he has never been charged before. He lives with his parents in the town of Oakville. He graduated from high school in 2009 and he is employed full-time in a bakery. At the time of the incident, he was stopped for speeding and a demand was made for a roadside breath sample. After registering a fail, he was taken to the police station where he provided two samples of his blood, which registered 110 mgs and 100 mgs respectively. During the course of his arrest, the police conducted a search and seized a small amount of cocaine. After he provided his breath samples, he was taken to the hospital to be assessed, where he was held overnight and released the next day.

[38] Mr. Wells suffers from depression. He testified that he was diagnosed with depression prior to these charges and has been under a doctor's care for approximately three years. Although his illness is being treated with medication, since being charged, his depression has deepened.

[39] Although he acknowledged that his depression has been affected by the fact of being charged, he deposed and reiterated in cross-examination that the twelve month delay in proceeding to his trial has deepened his depression and anxiety seriously, to the point where he has attempted suicide on two occasions. In May of 2013, he attempted to hang himself and in October of 2013, he slashed his wrists, leading to his admission to the hospital.

[40] In cross-examination, Mr. Wells testified that prior to being charged, he had never attempted suicide. He further testified that if his trial had happened months ago, he would never have attempted suicide. He expressed considerable anxiety that, at the time of his cross-examination in February, these proceedings had been "hanging over his head" for more than one year and his trial was still another three months away. He testified that "every day that ticks by just gets worse and worse."

[41] In addition to the two suicide attempts since being charged and waiting for trial, he has suffered countless sleepless nights, considerable stress and deepened anxiety. He testified that he has put his life on hold waiting for the outcome of the trial. He had planned to enrol in college in December of 2013, but he had foregone this opportunity until this matter is concluded.

[42] I find that the evidence is overwhelming that Mr. Wells has suffered actual prejudice as a result of the delay. The delay of fifteen months until his trial has debilitated Mr. Wells to such an extent that he has attempted suicide on two occasions, resulting in hospitalization.

5. CONCLUSION:

[43] The total delay in this case is 15 months. I have found that the institutional delay in this case to be 12 months. This was a straightforward impaired driving case and this time to trial is not acceptable in view of the circumstances of this case and the very serious actual prejudice to the applicant.

[44] In balancing the societal interest in a trial on the merits I am very mindful of the statements of Justice Code in R. v. Lahiry et al, 2011 ONSC 6780, [2011] O.J. No. 5071 (Ont. Sup.Ct.) at paragraph 89 of that judgment, which states as follows:

"It must be remembered that, for over twenty-five years now, drinking and driving has been regarded as a very serious offence. Indeed, it has been authoritatively stated that "it has a far greater impact on Canadian society than any other crime", that it is "clearly the crime which causes the most significant social loss to the country", and that "every drinking driver is a potential killer". See: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 at para. 16 (S.C.C.); R. v. McVeigh (1985), 22 C.C.C. (3d) 145 at 150 (Ont. C.A.); R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 at paras. 19-23 (Ont. C.A.). Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important in drinking and driving cases."

[45] In the case before me, there was no accident or bad driving, other than the speeding. Mr. Wells is a young man with no previous criminal record who has suffered some very serious prejudice as a result of the delay in reaching his trial. Society also has an interest in having trials of criminal cases heard within a reasonable time.

[46] Balancing all of the above factors, I am satisfied that the applicant has shown on a balance of probabilities that his right to trial within a reasonable time has been infringed. The charges before me will be stayed.[1]

[47] I thank counsel for the authorities provided and their helpful submissions in this matter.

Released: August 6, 2014

Signed: "Justice Sheilagh O'Connell"

[1] The parties did not proceed on the federal charge because it had not been delegated to the provincial Crown in this application however, in a subsequent proceeding before me, the charge in the federal information was stayed, on consent, for the above reasons.