RULING ON Section 11(b) Charter Application

Ontario Court of Justice

Between: Her Majesty the Queen — and — Daryl Alfred Black

Before: Justice Douglas B. Maund

Heard on: September 3rd, 2014

Reasons for Judgment released on: September 23, 2014

Counsel:

• Mr. R. Feldstein, counsel for the Crown
• Mr. M. Caroline, counsel for the accused Daryl Alfred Black

Maund, J.

[1] The Accused was charged that on the 24th day of August, 2013 in the Town of Caledon, he operated a motor vehicle with a blood alcohol concentration in excess of eighty milligrams percent contrary to Section 253(1)(b) of the Criminal Code of Canada.

[2] The Accused as Applicant has brought an Application pursuant to Section 11(b) of the Charter of Rights and Freedoms and alleges that his right to have a trial within a reasonable time has been infringed.

[3] The facts in relation to this charge arose on August 24, 2013 and the information was sworn September 5th, 2013. September 5th is the commencement date for consideration of this issue. The overall period from the swearing of the information to the second trial date scheduled on November 6th, 2014 is fourteen months plus one day. That period of time merits consideration of whether delay is such that a breach of Mr. Black's 11(b) Charter rights may have occurred.

Chronology of Court Dates and Commentary

a) Intake Period

[4] September 5, 2013 – First appearance. Counsel fully retained by the accused. Matter adjourned for preliminary disclosure.

[5] September 12, 2013 – Second appearance. Preliminary disclosure provided by the Crown. Matter put over for Crown resolution meeting with Defence.

[6] October 3, 2013 – Third appearance. Crown resolution meeting not held as essential disclosure not provided. Matter put over to complete Crown and Defence resolution meeting and for further disclosure.

[7] October 24, 2013 – Fourth appearance. Additional Crown disclosure received. Matter adjourned for Judicial Pretrial.

[8] November 12, 2013 – Fifth appearance. Judicial Pretrial not completed as Defence counsel unable to travel to court due to storm conditions. Matter adjourned to new Judicial pre-trial date at the request of Defence.

[9] December 10, 2013 – Sixth appearance. Judicial Pretrial conducted and matter set for trial on May 1, 2014.

[10] The total intake period from the swearing of the information to the setting of the first trial date was three months and five days. The first Judicial Pretrial was rescheduled as a result of the unavailability of counsel due to weather conditions. In any event, all of the period from October 24th to the first set date on December 10, 2013 in inherent time. A period of approximately two months, that is, three months plus five days less the time counsel was unavailable, is generally a reasonable intake period for a summary conviction case of this nature. The intake period is essential for disclosure, meetings between Crown and Defence, for holding a Judicial Pretrial and obtaining instructions by Defence. It was not contested by the Crown that essential disclosure was delayed to October 24th and this caused delay in holding a Crown resolution meeting. A twenty-one day period from September 12th to October 3rd when disclosure ought to have been made available is attributable to the Crown. I do not indicate in coming to this conclusion that the Crown was not diligent in their duties, but rather that they did not have the necessary disclosure from the police to provide to Defence in a timely manner.

b) Time to First Trial Date

[11] The period December 10, 2013 to the first scheduled trial date of May 1, 2014 is four months and twenty days. Earlier dates were provided by the Court (January 23 and 30, 2014) which were available to the Defence. The Verification of Trial Date by Trial Coordinator form indicates that the Crown was not available until April, 2014. This must mean that the assigned Crown would not be able to conduct the trial until April, 2014. One of the dates of January 23 or 30 was described as being available to the Crown on the form which contradicts that notation. However, nothing to clarify this further was put on the record by the parties when the first trial date was set in Court on December 10th.

[12] I conclude that May 1, 2014 was the earliest available date provided by the Court that was agreeable to both Crown and Defence.

[13] The Application materials filed by the Defence indicate that Mr. Caroline's first available date for trial was December 27th, 2013. It is clear from the caselaw in relation to 11(b) Applications that the earliest date available for counsel is not the end of the inquiry. Some period of preparation is required for all criminal trials and this will vary according to their complexity. Mr. Caroline submits that, given the simplicity of the issues originally presented in this case as he first assessed it, he was available to proceed to trial within days of the setting of the first trial date. In these circumstances it will not be necessary to impute time for preparation as required in such cases as R v Lahiry, 2011 ONSC 6780. Accordingly the period of institutional delay to the first trial date on May 1, 2014 commences on December 27th, 2013 which is a period of four months and four days.

c) Time to Second Trial Date on November 6, 2014

[14] The first scheduled trial date did not proceed when this matter was before me on May 1, 2014. The Crown fairly conceded that the Defence was not in a position to proceed due to substantial new disclosure which had been delivered to Defence on the eve of trial. The Crown on that date quite properly took responsibility for the delay which was occasioned by this late disclosure and also the fact that the scheduled trial could not proceed. When the new date was set, a lone earlier date of May 7th was offered which was not available. The next mutually agreeable date of November 6, 2014, which was the only other dated offered, was selected. During his appearance on May 1st Mr. Caroline was not yet in a position to assess the impact of the substantial new disclosure. His preliminary position was that it had altered the nature of the case and might require him to consult an expert. However, Mr. Caroline indicated in argument that, in retrospect, he believed he would have been able to complete his preparation within days of the original trial date and would have been ready by May 7th.

[15] Based on the submissions and materials before me, I accept that the period of preparation required by counsel to the second date can be limited to six days. Accordingly the period of institutional delay to the second trial date (also attributed to Crown delay due to late disclosure) runs from May 7th to the second trial date of November 6th, 2014. This is a period of six months.

[16] Therefore the entire period of institutional or Crown delay from the first trial set date is a period of ten months plus four days. The total period including both institutional or Crown delay including the intake period is ten months plus twenty-five days. This is just shy of eleven months.

d) Discussion

[17] Every person charged with an offence has a constitutional right to be tried within a reasonable time. The determination of what is reasonable in the constitutional sense must be determined on a case by case basis. The circumstances to be considered by the Court have been generally considered pursuant to the case law under four headings:

1. The length of the delay;
2. Waiver of time periods;
3. Reasons for the delay; and
4. Prejudice.

As noted in the proceeding chronology, the overall period of delay from September 5, 2013 to November 6th, 2014 is a period just in excess of fourteen months and merits further inquiry. The Defence at no time waived their 11(b) rights to have a trial within a reasonable period of time during these proceedings.

[18] My review of the chronology of dates as this case proceeded has already touched on scheduling and reasons for delay. Some delay was due to the unavailability of the Defence for the first Judicial Pretrial. I have already found that twenty-one days of delay during the intake period was due to an unexplained delay in providing necessary Crown disclosure. The Defence, as a result, was unable to properly assess the case and have a meaningful Crown resolution meeting. Basic issues in providing necessary disclosure, in fact, continued up to the first trial date in this matter.

[19] The entire period of either institutional or Crown delay to the second trial date of November 6th, 2014, is a total of ten months and twenty-five days. That calculation is net of the preparation periods required by counsel to both trial dates as I have assessed them on these facts.

e) Prejudice

[20] The facts in relation to alleged prejudice by Mr. Black were not challenged by the Crown. They are found in Mr. Black's affidavit in the materials and are compelling. On the same date that Mr. Black was charged, his wife was involved in an unrelated motorcycle accident. She was seriously injured to the extent that she was left paralyzed from the chest down. The Applicant assists his wife in all aspects of her physical care on a daily basis.

[21] The Applicant filed a letter from his psychologist, Dr. David Clair, who has seen him in psychotherapy sessions since December, 2013. The evidence establishes that prejudice was sustained by Mr. Black in the delay of his original trial. Delay has significantly increased his stress and impacted upon his ability to care for his wife who is fully disabled. Evidence of such prejudice to Mr. Black is not limited to the kind of stress and anxiety an accused might normally expect as a result of being charged alone. I am satisfied that he has encountered prejudice from the delay when the first trial did not proceed as scheduled due to his unique circumstances.

[22] The caselaw is clear that actual prejudice can be a significant factor in determining whether a breach of Section 11(b) under the Charter has occurred.

[23] It is also clear from the caselaw that the Court must balance the interest of society in having a trial on the merits. This is an allegation of a criminal drink/driving offence. While the facts are not before me, the carnage and human suffering on Canadian roadways as a result of motorists who operate their vehicles under the influence of alcohol or drugs is well known. It has been commented upon frequently in our Courts and in the media. The public demands that persons alleged to have put them at risk be dealt with by the Courts under the criminal law. If this charge is judicially stayed, there will be no opportunity to determine whether it could be proven to the criminal standard. This is a significant consideration.

[24] Nevertheless a period of institutional Crown delay of just under eleven months, together with a finding of actual prejudice is equally serious.

[25] There have been no cases that I know of, either at trial or on appeal, which have recently dealt with the range of constitutionally tolerable institutional delay for the Ontario Court of Justice sitting at Orangeville. This judicial centre deals with all Ontario Court of Justice criminal cases from Dufferin County and the Town of Caledon and has done so since Caledon charges were transferred to this court in 1997. While the Town of Caledon is part of Peel Region, it is now part of a unique blended legal culture of the Ontario Court of Justice sitting at Orangeville.

[26] In the years immediately following the transfer of the Caledon charges to Orangeville, it is fair to say there were many resulting resource challenges. These included the need for greater courtroom accommodation, staffing for the Crown and Court staff, Legal Aid resources and obtaining adequate judicial coverage to deal with these demands. With the cooperation of the legal community and the Office of the Crown Attorney, the Ministry and the Ontario Court of Justice, these challenges were generally overcome. Resources have been made available to Orangeville to meet the need. In addition, the Court at this location has embarked upon an aggressive case management regime which includes active confirmation hearings and ongoing Judicial Pretrials which are available to counsel up to and including the dates of scheduled trials or preliminary hearings. The usual intake periods were also substantially shortened by the efforts by the Orangeville Crown Attorney in cooperation with the four area police detachments. Substantial disclosure and early Judicial Pretrials are usually available within days of a request by counsel.

[27] By 2010, the average time to trial from set dates for the Ontario Court of Justice in Orangeville was reduced to approximately six months. For the past four years this time to trial period has been relatively stable. What might be considered a constitutionally tolerable period of institutional delay for the Ontario Court of Justice at Orangeville in 2014 has not been specifically argued before me in this Application. My comments in relation to how court scheduling has evolved at this court location is largely anecdotal from my knowledge as the Local Administrative Justice here for much of that time and as a resident Justice since 2000. These comments should NOT be taken as a conclusion on my part that a time to trial as short as six months should be the anticipated "new normal" for this jurisdiction. I do not make that finding. I simply comment that the current efficiencies in trial scheduling experienced in Orangeville may have created a general expectation that trials can and should be dealt with by the Ontario Court of Justice within a shorter period of time than when this Court struggled with the influx of cases from Caledon seventeen years ago.

[28] I should add that in the case of R v Andrew Mooney (unreported) on April 10, 2003, I dismissed an 11(b) Charter Application which dealt with a total delay period of eleven months of both Crown and institutional delay at Orangeville. No prejudice was established in Mooney. While all such cases are specific to their facts, the assessment of the Court was sustained on appeal by Justice Hill of the Superior Court of Justice (November 28, 2003) at that time. Given current trial scheduling expectations in Orangeville, I sense that what may have been constitutionally tolerable in 2003 is no longer satisfactory.

[29] My conclusion, balancing all of the important factors and interests as set out in the caselaw, is that the period of delay here, exacerbated by the real prejudice is excessive and offends section 11(b) of the Charter.

[30] Finally, I will make this comment. Appeal Courts in this province have warned trial courts for many years that when trials are not reached, the setting of a second trial date is not "business as usual". All counsel and this Court have a duty, when a matter becomes time sensitive, to attempt to obtain the earliest possible date for the matter to proceed. It is not sufficient to simply indicate availability on the next date provided by the trial coordinator.

[31] This last comment is not said in a critical way. Rather it is said to remind counsel as well as myself that that is the duty of all in time sensitive matters. What should have occurred when the first trial date was not reached in this matter was to have the entire trial inventory canvassed and prioritized to determine if any earlier date could be made available. Defence and Crown should have been invited to demonstrate whatever flexibility they may have had in their own schedules to accommodate this matter. I acknowledge and am fully aware of the difficulties in such an exercise in the Ontario Court of Justice which generally finds itself fully committed for trials and plea courts many months in advance. Nevertheless as I understand the caselaw, that is our institutional obligation. Such an approach could and should have taken place when the first trial date did not proceed.

[32] For all these reasons I agree with the Applicant that his Section 11(b) rights have been infringed. Accordingly, I order a judicial stay of these proceedings.

Released: September 23, 2014

Justice Douglas B. Maund