Court File and Parties

Date: November 3, 2014 Court File No.: 13-8960 Ontario Court of Justice

Between: Her Majesty the Queen — and — Meharpan Hundal

Before: Justice Paul F. Monahan

Heard on: November 3, 2014

Oral Reasons Released on: November 3, 2014

Counsel:

• Ms. S. Stackhouse, for the Crown
• Mr. R. Darrah, for the defendant Meharpan Hundal

MONAHAN J.:

Introduction

[1] Meharpan Hundal is charged that on or about September 12, 2013 while his ability to operate a motor vehicle was impaired by alcohol that he did operate a motor vehicle contrary to section 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is also charged that on or about September 12, 2013 having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood and did operate a motor vehicle contrary to section 253(1)(b) of the Code. He is further charged with that on or about September 12, 2013 that he did operate a motor vehicle on a street or road or highway or public place in a manner that was dangerous to the public contrary to section 249(1)(a) of the Code.

[2] Mr. Hundal brings this application to stay the prosecution on the basis that his rights under section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") have been violated namely the right to be tried within a reasonable time.

[3] For the reasons set out herein, I am dismissing this application.

Legal Framework

[4] The Supreme Court of Canada in R v. Morin confirmed the well-established framework for a section 11(b) Charter application. The accused must show a breach of section 11(b) on the balance of probabilities. The Court must consider the following four factors:

(i) the overall length of the delay;

(ii) whether the accused has waived any of the delay;

(iii) the reasons for delay; and

(iv) any prejudice to the accused.

[5] The Court must make findings with respect to the above four factors and then the Court must undertake a balancing analysis wherein the Court considers whether the delay is unreasonable, having regard to the interests of the accused, including any actual or inferred prejudice suffered, and society's interest in having the matter tried on the merits. Before staying the charges, the Court must be satisfied that the interests of the accused and society in a prompt trial outweigh the interests of society in bringing the accused to trial.

[6] A guideline of 8 to 10 months is to be used by provincial Court to assess institutional delay but deviations of several months in either direction can be justified considering the presence or absence of prejudice. The Ontario Court of Appeal has suggested that the guideline for a straightforward case in Peel is 8 to 9 months.

[7] Prejudice can be inferred from a prolonged delay. As the Supreme Court of Canada said in Morin, "the longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined".

[8] Prejudice is not to be inferred unless there is a "very long unreasonable delay." Moreover, prejudice which results from the inherent time requirements of the case or the actions of the accused is to be accorded no weight.

Analysis of the Four Factors

(i) The Overall Period of Delay

[9] In this case, the overall period of delay runs from when the Information was sworn on or about September 12, 2013 until the date set for trial of December 8 and 9, 2014, a period of almost 15 months. This period of delay requires further consideration.

(ii) Whether the Accused Has Waived Any of the Delay

[10] There is no suggestion that the accused here waived any of the delay.

(iii) The Reasons for the Delay

[11] Under this heading, the Court must make findings with respect to the reason for the delay and allocate the delay according to the following factors. The burden is on the accused on an 11(b) motion to prove the reasons for individual periods of delay. Each period of delay must be categorized according to the following reasons:

a) the inherent time requirements of the case which are considered to be neutral;

b) the actions of the accused;

c) the actions of the Crown;

d) limits on institutional resources; and

e) other reasons for the delay.

[12] In this case, counsel have very helpfully agreed upon the characterization of the neutral intake period and the period of institutional delay. In this case it is agreed that the period of time from September 12, 2013 to January 7, 2014 is neutral intake time.

[13] A trial date was set on January 7, 2014 for December 8 and 9, 2014, approximately 11 months after the set date. It is further agreed that the period of institutional delay runs from January 7, 2014 (when the trial date was set) until the end of the trial scheduled to complete on December 9, 2014 less one month preparation time consistent with the decision of Justice Code in R v. Lahiry. The total institutional delay is therefore 10 months.

(iv) Prejudice

[14] In this case, the accused swore an affidavit and testified on the 11(b) motion and was subject to cross-examination. In his evidence, and in counsel's submissions on the application, two areas of alleged prejudice were put forward. The first related to the no driving condition of his recognizance of bail. This involved related evidence that his ability to find new employment was impaired because he was limited in the locations he can seek new employment at by those locations that are serviced by public transit. The second area of prejudice claimed related to the stress of worrying about the outstanding charges, the uncertainty of his future and sleepless nights.

[15] Let me first address the issue of the no driving bail condition restriction. Mr. Hundal testified to the fact that at the time he was charged with the offences of impaired and over 80 on September 12, 2013, he was held in custody overnight and taken to Court on September 13 at which time he was released on a recognizance of bail. One of the conditions of his bail was not to operate a motor vehicle or to occupy the front seat of a vehicle. This was imposed because he had an outstanding over 80 charge. That outstanding charge was resolved by way of a careless driving conviction on May 30, 2014.

[16] The evidence was that counsel for the accused sought to have the no driving condition amended from his recognizance of bail but the Crown would not agree to it. No application to vary the bail has been made to the Superior Court. Both the Crown and the defence acknowledged that if such an application was brought, Mr. Hundal would stand a reasonable chance of having his recognizance of bail condition varied to permit him to drive. Ultimately, that would be up to the Superior Court judge hearing the matter.

[17] There is further evidence that Mr. Hundal lost his job in August 2014. He had been an IT specialist and was earning a salary of $100,000 to $120,000 per year. Mr. Hundal indicated that the stated reason for his termination was "internal restructuring". It is apparent that Mr. Hundal believes that the no driving condition affected his ability to perform his work tasks and that this may well have been the real reason for his termination. I am not satisfied, nor does counsel for Mr. Hundal suggest, that the evidence proves, on a balance of probabilities, that Mr. Hundal lost his job due to the outstanding charges or the delay associated with the outstanding charges.

[18] I do consider that there is some prejudice associated with the no driving condition but this is largely related to the charges and not to the delay itself. In addition, it would be open to Mr. Hundal to seek to vary his bail and while I appreciate that this would involve legal fees being expended, I am not satisfied on the record that he could not bring such an application. In any event, as indicated, while there may be some prejudice associated with the no driving condition and this might be said to be linked to the delay (and not just the charge) I think that this is only a low level of prejudice.

[19] The second area of alleged prejudice relates to stress associated with the delay. I note as well that Mr. Hundal testified to stress associated with being out of work and being the sole breadwinner for his family, which includes a young child.

[20] In terms of the stress associated with the delay, I am satisfied on the evidence that much of the stress relates to the charges themselves, as opposed to the delay. In addition, I believe that much of the stress relates to the loss of Mr. Hundal's employment, which cannot be said to be linked to the delay.

Balancing

[21] As indicated above, the Court must undertake a balancing analysis wherein the Court considers whether the delay is unreasonable, having regard to the interests of the accused, including any actual or inferred prejudice suffered, and society's interest in having the matter tried on the merits. Before staying the charges, the Court must be satisfied that the interests of the accused and society in a prompt trial outweigh the interests of society in bringing the accused to trial.

[22] The institutional delay in this matter is agreed to be 10 months. While such a delay is not desirable, the question is whether the delay is unreasonable and amounts to a violation of Mr. Hundal's 11(b) Charter rights. In all of the circumstances, including a consideration of the prejudice to the accused and society's interest in having a trial on the merits, I have concluded that there is no 11(b) violation.

[23] This is not a straightforward drinking and driving case for a number of reasons. First, it is anticipated that the Crown will call 5 witnesses including a toxicologist. Second, there will be a section 8 Charter issue which, while quite common in these cases, nevertheless complicates the matter further. Third, the mere fact that the trial is scheduled to last 2 days indicates that it is not a simple straightforward case. Fourth, in addition to the impaired driving and over 80 charges there is a dangerous driving charge as well. I don't wish to overemphasize the complexity of this case - it is not a complex case per se - but on the spectrum of drinking and driving cases it is towards the more complicated end.

[24] Whether one applies the 8 to 10 month guideline from R v. Morin or the 8 to 9 month guideline from R v. Rego, the analysis and result are the same. These are guidelines, not limitation periods. The institutional delay is either within the guidelines or just outside it. In this case, I have found that the prejudice associated with the delay is low at best.

[25] Society has a strong interest in a trial on the merits. Drinking and driving cases, including this one, are serious cases. Balancing all of the interests as I am obligated to do, I am not satisfied that Mr. Hundal has established on a balance of probabilities that his right under section 11(b) of the Charter to be tried within a reasonable time has been violated. The application is dismissed.

Released orally: November 3, 2014

Justice Paul F. Monahan