Court File and Parties

Date: 2014-10-14 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Diane Nhouyvanisvong

Before: Justice Paul M. Taylor

Heard on: August 28, 2014

Reasons for Judgment released on: October 14, 2014

Counsel:

• P. Alexander, counsel for the Crown
• G. Zoppi, counsel for the defendant Diane Nhouyvanisvong

Introduction

[1] Approximately 25 months ago, Diane Nhouyvanisvong was arrested and charged with the criminal offences of impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration exceeding 80 mgs of alcohol in 100mls of blood. Her second trial date is set for October 14, 2014. On August 28, 2014, her counsel argued before me that Ms. Nhouyvanisvong's right to a trial within a reasonable time as guaranteed by Section 11(b) of the Charter of Rights and Freedoms had been violated and he sought a stay of proceedings. On September 29, I advised counsel by facsimile transmission that the application to stay the proceedings would be granted with reasons to follow on October 14. These are my reasons.

Background and Overview

[2] On September 26, 2012, Diane Nhouyvanisvong was arrested and charged with impaired operation and operating a motor vehicle with excess blood alcohol. She was released by the police with a first court appearance of November 8, 2012. From the outset, she appeared though counsel, with the exception of her first trial date on October 29, 2013. Counsel made a number of disclosure requests which were largely honoured by the Crown, with one exception. That exception was that Counsel was seeking a booking video from the police division where the Accused was lodged pending her release from custody. The Defence position was that Ms. Nhouyvanisvong had been arbitrarily detained. The Crown position was that the police were justified in holding her until her state of sobriety was such that she could safely be released.

[3] Counsel repeatedly asked for the booking video at the pre-trial conference and at several court appearances. On October 16, shortly before the trial, Counsel faxed the Crown inquiring about the outstanding video and attaching an Application to adjourn the trial. A week later on October 23rd, the Crown advised that the video was available but there was no audio. Counsel was able to pick up the video that day, however, was not in a position to deal with it due to a number of personal and professional commitments until the eve of trial. Counsel for the Crown obviously consented to the adjournment, as the presiding Justice remarked "… (The Crown) would be hard pressed (to do otherwise)".

[4] Counsel retired to the Trial Co-Ordinator's Office and returned with the new trial date of October 14, 2014. There was a smattering of dates in November. Counsel for the Accused was unavailable and compliance with the Rules would be problematic for the November dates. Counsel was also not available on 5 single dates offered in December, February, and March. The police were unavailable for any dates in May. It was common ground that there were no dates between May 8 and October 14. Counsel returned to court on January 16, 2014 to try and get earlier dates but were unsuccessful. While a few dates were open, Counsel was unavailable. The October 14, 2014 date was confirmed.

Analysis: The Applicable Legal Principles

[5] The applicable legal principles to be considered in applications alleging a violation of Section 11(b) of the Charter have remained settled for over two decades following a quartet of decisions of the Supreme Court of Canada: R. v. Smith (1989), 52 C.C.C. (3d) 97, R. v. Askov (1990), 59 C.C.C. (3d) 449, R. v. Morin (1992), 71 C.C.C. (3d) 1 and R. v. Bennett (1991), 64 C.C.C. (3d) 449.

[6] Periodically, there are re-statements or minor refinements; however, the "Morin" framework for analysis has remained constant. In late 2004, the principles were reiterated in a trio of decisions of the Ontario Court of Appeal: R. v. Qureshi et al, [2004] O.J. No. 4711, R. v. Kovacs-Tatar, [2004] O.J. No. 4756 and R. v. Seegmiller, [2004] O.J. No. 5004. In Kovacs-Tatar, supra, Justice Rosenberg described the analysis in the following terms at paras. 57-58:

Section 11(b) is framed in terms of reasonableness. As noted, the courts have refrained from creating limitation periods within which certain types of cases must be tried last that judicial guillotine the sand in the form of a stay of proceedings. This inevitably requires the trial court to exercise judgment, having regard to the factors enumerated in Morin. In Morin at p. 13, Sopinka J. described the exercise in these terms:

"The general approach to a determination as to whether the right has been denied is not by the application of the mathematical or administrative formula but rather by a judicial determination balancing the interests which this section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in the Smith, supra, [R. v. Smith (1989), 52 C.C.C. (3d) 97], "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 105).

The interests involved do not just include the accused liberty and security interests in his or her interest in a fair trial. There are societal interest in ensuring that an accused trial is within a reasonable time, to minimize the prejudice to accused and ensure they are treated humanely and fairly (Morin at p. 12). But, there is also a societal interest in ensuring that accused are trying on their merits."

[7] The most recent reiteration of the principles is found in the recent decision of the Ontario Court of Appeal in R. v. Williamson, 2014 ONCA 598, [2014] O.J. No. 3828 at paras. 21-22:

21 The trial judge's decision correctly set out the analytical framework to be applied in an application under s. 11(b) of the Charter, taken from R. v. Morin, [1992] 1 S.C.R. 771, R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, and a number of other decisions, including the decision of this court in R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, which approved the approach Code J. took in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187.

22 The factors to be assessed are: (1) the overall length of delay from the laying of charges until the trial concludes; (2) the waiver of any individual time periods; (3) the reasons for the various periods of delay; and (4) the prejudice to the particular interests of the accused that are protected by s. 11(b). The court is then obliged to consider whether the delay is unreasonable, and in doing so, to balance the interests of the accused and the societal interest in a trial on the merits: see Lahiry, at para. 9; Tran, at para. 24; Morin, at pp. 786-803.

And at para 27:

27 The Morin guidelines for the suggested periods of institutional delay are eight to ten months in the provincial courts, and six to eight months in the superior courts: see Morin, p. 799. The trial judge acknowledged that the institutional delay in this case was well beyond the guidelines. However, he concluded that the appellant had not established the actual prejudice that he claimed to have suffered, and that although the court could infer prejudice, the inferred prejudice to the appellant was not significant. The trial judge also found a very high societal interest in trying the appellant on the merits, and dismissed the application.

And at para 40:

40 Further, the Crown argues that this court should account for the fact that the accused chose to bring complex Charter motions. I reject this argument. As Rosenberg J.A. noted in Ralph, at para. 14: "[T]he appellant was not required to give up his Charter right to a jury trial to vindicate his Charter right to a trial within a reasonable time." Likewise, this appellant was not required to give up his pre-trial Charter applications, which the trial judge characterized as "serious and substantive", to vindicate his Charter right to a trial within a reasonable time.

Application of the Principles to This Case

[8] The original trial date in this case was set on February 8, 2013. The second trial date is October 14, 2014, approximately 20 months and one week. The number of days is 614 from the time the first trial date was set. The guideline is 8-10 months. For the reasons that follow, the delay is constitutionally intolerable and the case should be stayed.

[9] As is often the case, both counsel have meticulously analyzed the delay and attempted to ascribe reasons for it. In any such analysis, the reasoning of Justice Cromwell in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at para. 18, is apposite:

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." (Emphasis added)

[10] In my view, the principal reasons for the delay are: the abject failure of the Crown to fulfill its disclosure obligations with respect to the booking tape and the Court's inability to provide a timely date when the case had to be adjourned on October 29, 2013. The Supreme Court of Canada set out the Crown's disclosure obligations in R. v. Stinchcombe, [1995] 1 S.C.R. 411. The booking tape was in existence the night of Ms. Nhouyvanisvong's arrest. Stinchcombe was decided almost two decades ago; the Crown has not presented any evidence as to why it was not complied with.

[11] The Crown has advanced several arguments which would, if accepted, result in attributing portions of the delay to either the Applicant or as neutral time. The result would be to reduce the delay to constitutionally acceptable levels. I find no merit in these arguments. The Crown has suggested that the trial could have proceeded on the first trial date, with the Charter application to be adjourned to a later date. This they assert is a voluntary action undertaken by the Applicant and as such should not be attributed to the state, (see R. v. Morin, 71 C.C.C. (3d) 1 at para 17-18). Whether this would have resulted in an earlier date is speculative, and somewhat problematic given that another actor, the trial judge's schedule would have to be part of the mix. In any event, the argument appears to have been dealt with in Williamson, supra, at para 40:

40 Further, the Crown argues that this court should account for the fact that the accused chose to bring complex Charter motions. I reject this argument. As Rosenberg J.A. noted in Ralph, at para. 14: "[T]he appellant was not required to give up his Charter right to a jury trial to vindicate his Charter right to a trial within a reasonable time." Likewise, this appellant was not required to give up his pre-trial Charter applications, which the trial judge characterized as "serious and substantive", to vindicate his Charter right to a trial within a reasonable time.

[12] The Crown also argued that some time ought to be deducted to allow for the fact that Counsel are seldom ready to proceed to trial immediately. They argued, in this case, time ought to be added to this calculus because of the need to allow for compliance with the Rules for Charter motions, (see R. v. Lahiry, et al 2011 ONSC 6780, [2011] O.J. No. 5071 at para. 2 approved of in R. v. Tran, 2012 ONCA 18). Even allowing for the time suggested by the Crown of 60 days in each case, this would only reduce the delay to slightly over 16 months. This is allowing the most generous allowance to the Crown. The Applicant's counsel could have been available in less time.

[13] The Crown suggests that the 11(b) clock should have stopped because some dates were offered by the Court on which the Applicant was unavailable. The dates were isolated and can only be seen as a token offering rather than a realistic offer. As Justice Cromwell wrote in R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 at para 23:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry - efforts which were ignored - suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable."

[14] The Crown has also argued that any prejudice suffered by the Applicant is largely as a result of the fact of the charge rather than the delay. I disagree. While there is no doubt that some of the Applicant's concerns are directly attributable to the charge and the ramifications of a possible conviction on her career, the delay has equally exacerbated that anxiety. The Applicant in some measure has had to put her life on hold pending the resolution of her charge. She has been put to added expense because of the actions of the state in not making timely disclosure and not being able to accommodate her trial in a timely fashion. As Justice Lauwers wrote at paras. 49-50 in Williamson, supra:

49 In Godin, Cromwell J. considered three forms of prejudice, at para. 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.

50 He went on to say that both actual prejudice and prejudice "inferred from the length of the delay" were relevant, noting, at para. 31:

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." Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

Balancing the Interests

[15] In Williamson, supra, Justice Lauwers reviewed the role of the societal interest in the balancing portion of the assessment at paras 61-63:

61 The role of the societal interest in the balancing effort was set out by Cronk J.A. in Seegmiller, at para. 25:

Where the nature of the allegation establishes a heightened societal interest in a trial on the merits, the absence of prejudice (particularly to the accused's fair trial interests) takes on added significance in the s. 11(b) calculus. The applications judge found that the suggested prejudice to Seegmiller was deserving of little weight, but failed to appreciate the significance of that assessment in a case like this one, where the societal interest in a trial on the merits is high. The applications judge also observed that "the degree of prejudice to the accused is not such as to require that the period of acceptable delay be shortened". This observation correctly recognizes that real prejudice can shorten the period of acceptable delay in a proper case; however, it fails to also recognize that the absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable.

62 On the other hand, society's interests should not permit the accused's "constitutional rights to be eviscerated": see S.H., at para. 74.

63 This point was discussed in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, in a different context, where the Supreme Court was dealing with the possible exclusion of illegally obtained evidence, under section 24(2) of the Charter. At para. 40, the Court endorsed the reasoning of Cronk J.A., who was in dissent in this court:

As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis "would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means'" (para. 150). Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences.

[16] Ms. Nhouyvanisvong's case is serious. The potential carnage caused by those who drink and drive has been the subject of judicial commentary for decades. The case is, however, routine in the sense that such cases are the daily fare in the Ontario Court of Justice. Several such cases are set for trial each day at this court location. They can hardly be seen as novel, and while each case is unique, there are certain commonalities. Charter applications to exclude evidence based on lack of reasonable grounds, illegal strip searches, over holding, substantive issues such as whether the tests were taken as soon as practicable are argued on a daily basis. The root cause of the delay was the Crown's failure to provide, despite repeated requests, disclosure of a video that was in existence the night of the Applicant's arrest. The Applicant was doing everything to move the case forward. When the case could not be heard on the scheduled date, the Court could not accommodate her in a timely fashion. She suffered prejudice. Balancing all the factors, I am driven inexorably to the conclusion that the case must be stayed.

Released: October 14, 2014

Signed: Justice Paul M. Taylor