Court Information

Ontario Court of Justice

Date: 2014-09-30

Court File No.: Central East - Newmarket 4911-998-13-08645-00

Parties

Between:

Her Majesty the Queen

— And —

Yat Chi Ling

Judicial Officer and Counsel

Before: Justice David S. Rose

Heard on: September 11, 2014

Reasons for Judgment released on: September 30, 2014

Counsel:

• N. Courville — counsel for the Crown
• P. Lindsay — counsel for the defendant Yat Chi Ling

Judgment

ROSE J.:

[1] Yat Chi Ling is charged with Impaired Driving, as a result of an arrest on November 9, 2013. The Information was sworn to on November 22, 2013. Originally that Information also alleged one Count of Drive Over 80, but the Over 80 Count was withdrawn by the Crown on April 30, 2014. There is a trial currently scheduled for October 27, 2014 and this ruling assumes that the trial will be completed on that day, in other words, about 11 months and 3 weeks after the information was sworn to. The Crown submitted a synopsis as part of its response in this Application which suggests that, at trial, it seeks to prove that the Applicant provided Breath Samples of 190 mg in 100 ml of blood.

[2] The Applicant seeks a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms because her trial will not be heard within a reasonable time.

[3] Applications under s. 11(b) of the Charter require a balancing of interests, and not a mere application of mathematical or administrative formula. This balancing has two chief interests: the rights of the Accused on one hand, and general societal rights on the other. Prejudice to the Accused is an important factor in the balancing of interests, as the Supreme Court reminded lower courts in R. v. Godin.

[4] I do not understand there to be any great dispute about what happened in this case. The Crown and defence disagree only on the length of neutral delay in the period between setting the first trial date and the first trial date. I will deal with that below. Applying the 4 pronged test from R. v. Morin, I analyze those facts as follows.

Length of Delay

[5] The overall delay in this case is from November 22, 2013 until October 27, 2014, or 11 months 3 weeks. I find that this overall period warrants an inquiry.

Waiver

[6] There is no waiver of any time periods. The record on this Application indicates that the Applicant was prepared to proceed to trial expeditiously. She had retained counsel on the first appearance, December 4, 2013. On April 30, 2014 counsel indicated that if the trial was not started on the second trial date there would be an 11(b) Motion. This can only be interpreted as a wish to proceed expeditiously to trial.

Reasons for the Delay

[7] This appears to be a straightforward case of Over 80 conducted by experienced counsel. The investigation appears to have been completed on the night of the Applicant's arrest. A one day trial for such a case seems reasonable.

[8] There is no reason in the nature of the case or the offence that the matter should not be tried within the guidelines of R. v. Morin, which is to say an institutional guideline of 8 – 10 months.

[9] I recognize that there is authority for the proposition that in a straightforward drinking and driving case the lower end of the range of 8 – 10 months should be used, this approach has been the subject of obiter comment to the contrary.

[10] The first appearance for Ms. Ling was on December 4, 2013, and by then Ms. Ling had retained Mr. Lindsay who appeared by an agent. The case was adjourned to December 18, 2013 to complete disclosure. On December 18, 2013 a trial date of April 30, 2014 was set. This was the first available trial day. Mr. Lindsay conceded on December 18, 2013 that he had no time available to argue the case until January 2, 2014. Even if an earlier date was made available, Defence availability really commenced on January 2, 2014, and I am therefore finding that the commencement of institutional delay began then. This would allow Mr. Lindsay sufficient time to prepare for trial, and file any necessary Charter Application Materials. Such an approach is dictated by Justice Code in R. v. Lahiry.

[11] The period from January 2, 2014 until the first trial date of April 30, 2014 is therefore 3 months and 28 days of institutional delay.

[12] On April 30, 2014 the case was ready to be tried, but there was no court space, and a new trial date of June 26, 2014 was set. On that day Mr. Lindsay said that:

"...I'm not intending to bring an 11(b) if the matter finishes on June 26th, but both parties were ready to go today. There was no Court space."

[13] The period of April 30, 2014 to June 26, 2014 is also institutional delay. This amounts to 1 month 26 days. While there is some authority for the proposition that responsibility for the delay between missed trial dates may be divided as between institutional delay and defence delay I decline to do so in this case. In Findlater there was no evidence that the Defence was interested in an earlier trial date, or that there was prejudice flowing from the failure to hear the case when it first came up for trial. That is not the case here, as discussed above.

[14] As stated above, from this I infer that the Applicant wished to proceed expeditiously to trial, and further that the Crown was on notice that it should prioritize this case on the next day. The Application Record contains a standard "green sheet" given out by the trial coordinator indicating available and unavailable dates. I am told in submissions by both Crown and Defence that the green sheet is somewhat counterintuitive in the sense that when it indicates "Available" it really means "unavailable". While there are certainly dates between April 30 and June 26, 2014 where Mr. Lindsay was not available, it also appears from the Application Record that Mr. Lindsay had available dates in the intervening period between April 30, 2014 and June 26, 2014. I understand the Crown's position to be that Defence Counsel did make himself reasonably available. This is a fair position to take. I therefore find that Mr. Lindsay made himself reasonably available in this period and did nothing to delay the second trial date. Simply put, the defence is not required to hold itself in a state of perpetual availability.

[15] On June 26, 2014 the case appeared in 202 Court for trial court assignment, as is the practise in this Courthouse. It appears that Ms. Ling was again not a priority and the case was adjourned for a third try at starting a trial. That third trial date was October 27, 2014. An intervening date for argument of the 11(b) Motion was scheduled for September 11, 2014 in Accordance with the Rules of Practise.

[16] The period of June 26, 2014 to October 27, 2014 is also purely institutional delay. This last period I calculate as being 4 months and 1 day. I therefore assign the delay between the first missed trial date of April 30, 2014, and the proposed third trial date of October 27, 2014 as entirely institutional.

Actions of the Defence

[17] I find that the Defence did nothing to delay this case coming to trial.

Actions of the Crown

[18] On April 30, and June 26, 2014 the Crown chose to prioritize other cases to Ms. Ling's. There is nothing in the Record to indicate what other cases were given priority. This is certainly within their prerogative but, as others have noted, the failure to prioritize cases may be assessed accordingly.

Limits on Institutional Resources

[19] In submissions Ms. Courville took the position that the failure to start this trial on two prior occasions was the result of a lack of judicial resources. She submitted that York Region is one of the fastest growing regions, but no additional judicial resources have been allocated despite the population growth. This trial could not therefore be reached because of a shortage of judges. This seems a fair concession. The result however is that we do have two missed trial dates due to lack of institutional resources.

[20] I pause to comment that the tension between application of Charter rights, such as s. 11(b), and the availability of government resources was noted by the Supreme Court of Canada many years ago when 11(b) cases were first being heard in that Court. In Morin Justice Sopinka did say that the government has a constitutional obligation to commit the resources needed to prevent unreasonable delay. In his words, "There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources".

Other Reasons for the Delay

[21] There are no other reasons for the delay other than those noted above.

[22] The total amount of institutional delay is therefore 9 months and 24 days.

Prejudice to the Applicant

[23] In her affidavit the Applicant gives evidence that she is 36 years old, has a prior conviction for Over 80, and has no other outstanding charges. She works as a Programmer in Brampton Ontario and also works part time as a waitress. Much of her evidence of prejudice is not particular to the delay caused from the case not being heard but because of the fact that she was charged. There is however evidence that the very fact of having to keep coming back for missed trial dates is causing worse anxiety and worry. This I take as prejudice flowing from the two missed trial dates. I am prepared to accept that there is a unique prejudice flowing from the delay caused by two missed trial dates. In R. v. Papandrea Justice Brown described this a "particularly exquisite" form of prejudice.

[24] I also accept the Crown concession that there is an additional cost to having a lawyer appear for two missed dates, which is another very fair concession by Ms. Courville.

Balancing the Societal Interest in a Trial on the Merits

[25] Society is usually interested in a trial on the merits, and so this factor usually favours a denial of the 11(b) Motion. The issue for the Court to determine is, by how much? Drinking and driving is a very serious offence, which has a very great impact on Canadian Society. Impaired Driving in Canada causes the most significant society loss to the country, and every drinking driver is a potential killer. Where the amount of institutional delay is not so great, this part of the analysis plays a greater role. I also must note that the Applicant has a prior criminal record for this offence, and the allegations include high readings, even if there is no allegation of a collision. In this case the societal interest in a trial being heard on the merits is weighty.

Conclusion

[26] This is a close case, but ultimately the Application fails. The overall period of institutional delay is within the 8 – 10 month guideline from R. v. Morin, albeit approaching the outer limits. Even if I were to find that the lower limit within Morin were appropriate in the circumstances, ie follow the approach taken by some that 9 months is the limit of institutional delay in a drinking and driving case, the total amount of institutional delay in this case is only barely beyond that. The prejudice in this case due to the two previous trial dates is not so much as to outweigh the societal interest in seeing this case with this accused proceed to trial.

[27] I want to thank both Ms. Courville and Mr. Lindsay for their helpful, focused submissions.

Released: September 30, 2014

Signed: Justice David S. Rose