Ontario Court of Justice

Old City Hall - Toronto

Between

Her Majesty the Queen

—and—

Anthony Niro

Counsel and Hearing

For the Respondent/Crown: H. How

For the Applicant/Defendant: S. Price

Heard: April 9, 2015

Reasons for Ruling

(Re Ss. 11(b) and 24(1) Charter Application)

Justice Melvyn Green

A. Introduction

[1] The Applicant, Anthony Niro, is charged with having a legally excessive blood alcohol concentration (BAC) while having care and control of a motor vehicle. He was arrested for this offence on September 28, 2013. His trial was scheduled for December 11, 2014. It was adjourned that day. His trial is now fixed to proceed on June 2, 2015. The Applicant claims that the total delay between the day he was charged and his anticipated trial date infringes his Charter-guaranteed right to be tried without unreasonable delay and, accordingly, seeks to have the proceedings against him stayed by way of constitutional remedy.

[2] Crown and Applicant are largely agreed that, in the somewhat unique circumstances of this case, the resolution of this application primarily turns on the reasons and responsibility for the trial not proceeding on its first scheduled hearing date and, of course, the proper allocation of the more than 5½-month interval that follows pending the second trial date.

B. Evidence

(a) Introduction

[3] The record is relatively compact. The Applicant swore and was cross-examined on an affidavit focused on the prejudice he attributes to the trial delay. Both the Crown and defence counsel filed affidavits from members of their offices narrating those elements of the case's chronology that are not adequately set out in the transcripts of the various interim court appearances. There is no great difference between the affiants' accounts: the events in the month or so preceding the adjournment of the first scheduled trial are only sketchily advanced in both.

(b) The Circumstances of the Alleged Offence

[4] An unrelated incident on Lakeshore Boulevard in Toronto brought traffic to a lengthy standstill late on the evening of September 27, 2013. During its investigation of the unrelated matter the police encountered the Applicant asleep behind the wheel of his stationary car in the midst of the traffic jam. The car was in a live lane. It was immobile but its engine was running. The Applicant subsequently provided two samples of his breath, registering readings, respectively, of 148 and 140 milligrams of alcohol in 100 millilitres of blood – well in excess of the legal limit.

(c) The Relevant Chronology

[5] The Applicant was arrested following his Breathalyzer tests in the early hours of September 28, 2013. He was released from the police station on a Promise to Appear. The Information charging him with having care and control of a motor vehicle while having an excessive BAC was not sworn until October 24th, almost a month later. The Applicant's first scheduled court appearance was November 20th. The matter was adjourned that day and on four further occasions to secure disclosure and conduct Crown pre-trial meetings. Finally, on February 28, 2014 (exactly five months after his arrest), a two-day trial was scheduled for December 11 and 12, 2014, some 9½ months distant. The trial did not proceed on December 11th. Instead, it was adjourned and new trial dates fixed: June 2 and 3, 2015, nearly six months after the aborted first trial date. Meantime, the defence filed a s. 11(b) Charter application, the subject of this ruling. The motion was heard on April 9, 2015. In total, about 587 days, or 19½ months, will have passed between the time the Information was sworn and the dates currently scheduled for the defendant's trial.

(d) The Explanation for the Adjournment of the First Scheduled Trial Date

[6] Much turns on the reasons why the Applicant's trial did not proceed on its first scheduled date. Unsurprisingly, the parties urge somewhat differing explanations for the adjournment and subsequent delay.

[7] In November 2014, in anticipation of the first scheduled trial, the defence filed a timely Charter application to exclude evidence of the Applicant's Breathalyzer test results. The events in the breath room and the integrity of the testing procedure were irrelevant to the claims of Charter breach advanced in support of an exclusionary remedy.

[8] On November 17, 2013, Jonathan Thompson, a student-at-law in the prosecution's office, was diligently preparing the Crown's response to the defence's Charter application. In reviewing the materials in the Crown brief, Thompson discovered that the breath room DVD, although bearing the Applicant's name, pertained to an unrelated prosecution. Concerned that a copy of the same erroneous DVD may have been provided to the defence by way of disclosure, the student called defence counsel's office that same day. He spoke with Ms. Min Pei, a lawyer in the same firm, advised her of his discovery and asked her to check her firm's file. Pei emailed Thompson the next day, November 18th, confirming that her firm also had an incorrect DVD. "So", she continued, "we would require Mr. Niro's breath room videos as soon as possible". Within minutes, Thompson emailed Pei to advise that he had "informed the Crown's office at Old City Hall, and they're taking steps to obtain the breath room video for Mr. Niro". Thompson, it appears, was at the time working at the Crown's office at the College Park courthouse in Toronto while prosecutorial carriage of the Applicant's case rested with the Old City Hall (OCH) Crown's office, a few blocks away. At this point, the Applicant's trial was still some 23 days distant.

[9] There was no further pre-trial communication from the Applicant's law firm respecting the breath room DVD. Nor did anyone in the OCH Crown's office further communicate with the defence about the videotape. Nor is there any evidence before me as to: when the OCH Crown's office actually requested a replacement breath room DVD from the TPS; as to what steps, if any, the Crown pursued to determine the status of the replacement DVD; or as to the date by which the production of copies of the correct videotape were anticipated. It appears, however, that as the trial date approached Ms. Helen How, Crown counsel with carriage of the matter, despaired of receiving the replacement video in a timely manner. In an effort to preserve court time for trial-ready matters, she advised the OCH trial co-ordinators' office that, as put in the Crown's factum, "the likelihood of the [defendant's] trial proceeding was low, given the outstanding disclosure issue". "As a consequence", the respondent's factum continues, the defendant's "matter was transferred out of a trial court, and the trial could not proceed as scheduled". Neither Ms. How nor anyone from her office consulted with the Applicant's counsel or apprised him of the Crown's initiative prior to contacting the trial co-ordinators' office.

[10] The Applicant and his counsel, Mr. Stephen Price, first learned their matter had been moved out of a trial stream when they arrived at OCH on December 11, 2014 "prepared for trial". The case had been transferred to 112 Court, a courtroom dedicated to pleas, case management and "speak-to" matters; it is not a trial court. Ms. How told the presiding judge that defence counsel, "showed up today, and wished to have a trial, and we don't have a trial court available". Subject to courtroom availability, the prosecution could have commenced the next day, the second of the two scheduled, but the trial would then have been fractured upon its remand to an undetermined date for continuation. As a practical matter, counsel agreed, as Ms. How advised the court, that "two days together makes more sense". Accordingly, the trial was adjourned to the "earliest mutually available date" of June 2 and 3, 2015. The Applicant's counsel made clear that, "there's no waiver of 11(b)".

[11] At the time, Mr. Price's pre-June 2015 trial availability calendar included seven days in January, three in February, one in March and four dates in both April and May. The court was able to offer only six pre-June dates for the Applicant's trial, March 23rd and 27th, one date in April and three in May, none of which were available to the defence. The respondent, in its factum, submits that the delay between the first and second trial dates should be "reduced" by 71 days to account for the difference between "the first trial date offered to the Applicant by the Court and the trial date of June 2nd, 2015". Rather than later revisiting this issue, let me make immediately clear that I have no difficulty rejecting this proposition. As said by Cromwell J. on behalf of a unanimous Supreme Court in R. v. Godin, 2009 SCC 26, 245 C.C.C. (3d) 271, at para. 23, in words equally applicable to the case before me:

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. … I respectfully agree with [the dissenting opinion in the Court of Appeal] 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."

[12] Coincidentally, if not ironically, the missing breath room videotape somehow made its way to the Crown's office that very day, December 11th. Although not referenced by either counsel in their submissions in 112 Court, a copy was provided to the Applicant's counsel before he left court that day.

(e) "Prejudice"

[13] The Applicant was 40 at the time he testified on this Charter hearing. He had experienced some stress when first charged and it "continued to grow as the [first] trial date approached". The further "delay in the resolution of this matter" provoked "considerable stress, anxiety, and insomnia", interfered with his work concentration, contributed to his gaining 15 pounds, strained his marital relationship, and caused him to grow irritable with his children and employees. He consulted his doctor in the summer of 2014, primarily to address his sleep problems. He had never had problems sleeping until he had a "trial hanging over" him. His doctor provided advice but did not prescribe any medication. The Applicant had wanted the trial to proceed on its first scheduled dates. The extension of the trial had caused him to incur additional legal expenses.

C. Section 11(b): The Analytical Framework

[14] The analytical scaffolding of a s. 11(b) inquiry is long settled. As set out in R. v. Morin, 71 C.C.C. (3d) 1, at para. 31, and since repeatedly re-endorsed, the factors relevant to an assessment of the reasonableness of pre-trial delay are:

1. Length of the delay;

2. Waiver of time periods;

3. The reasons for the delay, including:

   • (a) Inherent time requirements of the case;
   • (b) Actions of the defendant;
   • (c) Actions of the Crown;
   • (d) Limits on institutional resources; and
   • (e) Other reasons for delay; and

4. Prejudice to the defendant.

A stay of proceedings is the only appropriate remedy in those cases where a breach of a defendant's s. 11(b) rights is established: R. v. Thomson, 2009 ONCA 771, 248 C.C.C. (3d) 477, at paras. 9-10.

[15] Put concisely by the Supreme Court in R. v. Godin, supra, at para. 18:

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.

The "interests that s. 11(b) seeks to protect" are primarily those of the defendant: security of the person, liberty and fair trial rights. Societal interests are also implicated, including that criminal charges, particularly serious ones, are tried on their merits and ensuring that those charged are not only brought to trial but quickly and fairly: R. v. Morin, supra, at paras. 26-30; R. v. Askov, 59 C.C.C. (3d) 449, at 474; and R. v. Qureshi, 128 C.C.C. (3d) 453, at 458. Said simply, the final step in the s. 11(b) analysis requires a court "to balance the interests of the appellant and the societal interest in a trial on the merits": R. v. Williamson, 2014 ONCA 598, 314 C.C.C. (3d) 156, at para. 58; leave to appeal granted (Jan. 29, 2015).

[16] For s. 11(b) purposes, the "length of the delay" is "the period from the charge to the end of the trial": Morin, supra, at para. 35. The "charge" or start point in such calculation is "the date on which an information is sworn": Morin, supra, affirming R. v. Kalanj, [1989] 1 S.C.R. 1594, at paras. 16-20. That date, here, is October 24, 2013. The "end of the trial" is the date scheduled for an accused's trial – here, June 2, 2015.

[17] The analytical factor "prejudice" comprehends both "actual" and "inferred" dimensions. As said in R. v. Godin, supra, at paras. 30-31:

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.

The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, 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."

[18] The Applicant, as in all Charter claims, bears the legal burden of establishing a violation of his or her s. 11(b) rights. However, a case need "only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it": Morin, supra, at para. 33, affirming R. v. Smith, [1989] 2 S.C.R. 1120, at 1132.

[19] Finally, by way of general propositions: the s. 11(b) test is one of reasonableness, not the application of a mathematical formula. Nonetheless, the administrative guidelines first set out in Morin provide a helpful metric for assessing the reasonableness of pre-trial delay. In the case, as here, of a relatively simple provincial court trial, the guideline for permissible institutional delay is eight to ten months. (See R. v. G. (C.R.), 77 O.R. (3d) 308, at 315). Again, this is a guideline, not a limitation period; the parameters of constitutionally tolerable delay may yield to a variety of social, regional and case-specific factors.

D. Applying the Framework

(a) Introduction

[20] The Crown acknowledges that the global delay in this case warrants an inquiry into the reasonableness of the delay. The total cognizable delay, from charge to the pending trial date, amounts to roughly 19½ months – well beyond the Morin guidelines. Counsel agree that the interval between the date on which the first trial was set and its scheduled hearing is directly attributable to institutional or systemic considerations, a period they calculate as consuming some 9½-month. (A figure of 8½ months is more appropriate in light of the now-routine subtraction for necessary trial preparation, which time is properly assigned to the inherent requirements of the case: R. v. Lahiry, 2011 ONSC 6780, 283 C.C.C. (3d) 525, at paras. 25-31; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 32.) If, as urged by the Applicant, the entirety of the 5½-plus months resulting from the adjournment of the first trial are properly nested under the rubrics of institutional factors or actions of the Crown, the total delay subject to s. 11(b) scrutiny would be difficult to constitutionally salvage absent express waiver or defence conduct that exhibited at least an indifference to the pace of the litigation.

[21] The Crown concedes that none of the delay is attributable to waiver by the Applicant. Further, and but for the final interval, there is little if any dispute about the reasons for the delay attending this trial, the conduct of the defence, or the proper legal colouration of all but this ultimate period. The parties accept that the just-over four months between the defendant being charged and the date on which his first trial was fixed (February 28, 2014) is composed of intake and inherent delay that is properly characterized as neutral for purposes of any s. 11(b) calculation. Similarly, and as already noted, they agree that the period between the set-date appearance on February 28th and the first scheduled trial date of December 11th is properly assigned to institutional factors. Further, the parties agree that the length of the delay between the adjournment of the first trial and the dates projected for the second is driven by institutional or systemic considerations. (It would, of course, be redundant to subtract any additional preparation time from this period.)

[22] The critical dispute then, and the issue on which this application largely turns, is who, if either side, is responsible for vacating the first trial date and the more than 5½-months protraction of the defendant's prosecution that flows from its adjournment.

(b) The Reasons the First Trial Was Adjourned

(i) The Parties' Positions

[23] The defence position is straightforward: The Applicant's trial would have been over by December 12, 2014 but for the Crown's failure to fulfill its disclosure obligations and, in effect, its peremptory adjournment of the first trial. Accordingly, some 14 months of delay fall to Crown conduct and systemic factors. Combined with the actual prejudice occasioned and that which may be reasonably inferred, the Applicant's s. 11(b) rights are irredeemably breached. A stay of the proceedings must follow.

[24] The Crown's approach is both more nuanced and refreshingly creative. The defence, it says, shares responsibility for the collapse of the first trial. While the Crown made an error in the process of affording disclosure, the defence failed to exercise corrective diligence. Similarly, while the Crown may have made a "mistake" in contacting the trial co-ordinators' office without first consulting or even informing defence counsel, the latter's assertion that he had attended court "prepared for trial" was both insincere and opportunistic and the Applicant ought not to profit from this misrepresentation. A fair assignment of responsibility, and one that acknowledges the contribution of both parties, is best achieved by dividing the ensuing 5½ months between the conduct of the Crown and the Applicant. In the result, just over 11 months of delay is properly attributable to institutional considerations and the actions of the Crown. This delay barely exceeds the upper bracket of the range sanctioned in Morin. Further, there is little evidence of actual prejudice. And, further still, there is a strong societal interest in ensuring that drinking-and-driving offences are tried on their merits. Balancing the competing interests, there is no violation of the defendant's right to be tried without unreasonable delay. So, says the Crown, the defendant's s. 11(b) application should be dismissed.

(ii) Assessing Responsibility for the Adjournment

[25] The Crown argument is facially attractive. It is not, however, sufficiently rooted in the evidence to oust the most reasonable inference to be drawn from the established facts – that, viewed cumulatively, the conduct of the Crown, not that of the defence, was responsible for the adjournment of the first trial and the consequent extension of the prosecution. In my view, the resultant global delay deprived the Applicant of his right to be tried within a reasonable time.

[26] To begin, the Crown failed to honour its constitutional obligation to make complete material disclosure. This failure was not intended. It was the product of negligence, most likely attributable to the police. Nonetheless, it was not remedied for more than a year, and only recognized when the Crown was preparing to reply to a defence motion. However, the Crown argument, and the basis for its shared-responsibility thesis, is that the defence exacerbated the problem of inadvertent non-disclosure by failing to diligently discover the error and promptly notify the Crown. As said by the Supreme Court in R. v. Dixon, 122 C.C.C. (3d) 1, at para. 37, and repeated in the Crown's factum:

When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure. …

The next paragraph is to like but more subtle effect:

If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial.

The general proposition set out in Dixon undoubtedly applies with equal force to instances of erroneous disclosure as it does to that which is incomplete. The difficulty for the respondent, however, is not the authority or wisdom of Dixon but its application to the case before me.

[27] Dixon arises in circumstances in which a defendant appealed against his conviction on the basis that material omissions in the Crown disclosure package had denied him a fair trial. The missing disclosure related to matters about which the defence had long been aware or suspected but about which it had made no inquiries of the Crown prior to trial. The case imposes no obligations on a defendant to pursue disclosure in the abstract or at large. Rather, it addresses the effect on a defendant's claim for constitutional relief on grounds of an unfair trial where he or she has failed to exercise reasonable diligence in regard to the non-disclosure that bottoms its claim. As said by the Court, at paras. 36-37, in the portion of its judgement immediately preceding that upon which the Crown relies:

In considering the overall fairness of the trial process, defence counsel's diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown's non-disclosure affected the fairness of the trial process.

Here, it is the Crown, not the defence, which endeavours to rely on its own non-disclosure, about which the defendant never complained, to justify its interference with a defendant's s. 11(b) rights. To invoke Dixon in aid is unwarranted, if not perverse.

[28] It is undoubtedly true that the Applicant's counsel paid no heed to the disclosed breath room videotape before its erroneous provenance was brought to his office's attention. But it is equally true that the breath room videotape had no bearing on his prosecution of the defence. The tape played no part in defence counsel's trial strategy; counsel never advanced the non-disclosure of the correct DVD as an impediment to his conduct of the Applicant's trial; and, most importantly, he never sought to delay the scheduled commencement of that trial, let alone on the basis of such non-disclosure. A defendant's failure to exercise Dixonian diligence, or his neglect to take otherwise appropriate steps with respect to missing disclosure, is of no significance if he, in effect, waives or forgoes compliance with the disclosure rights to which he is legally entitled. The Crown, in short, cannot force disclosure upon an unwilling defendant or advance constitutional claims on his behalf where, as here, he is represented by competent counsel.

[29] I appreciate, of course, that when first notified by the Crown student of the mistaken DVD disclosure Ms. Pei, a member of the defendant's law firm, emailed that, "we would require [it] as soon as possible". This request was never repeated or pursued. It did not generate a defence adjournment application. It was not referenced by either counsel in the course of their submissions during the brief hearing in 112 Court on December 11, 2014. It was not the subject of any Crown-authored communications to the defence before December 11th. In short, there is no realistic basis to assume, nor does Crown counsel expressly urge, that the prosecution relied on Ms. Pei's email when it effectively caused the removal of the Applicant's matter from the trial list.

[30] Viewed globally, the conduct of experienced defence counsel in the instant case exhibits both a sustained indifference to receiving the correct breath room video and a consistent disinclination to invoking its omission in any materials or proceeding bearing on the merits of the Crown's case. Had there been any doubt as to the defence position regarding the breath room videotape or the prospect of a defence initiated adjournment, a simple "yes or no" communication from the Crown's office could readily have resolved the issue. There was no such communication.

[31] Mr. Price told the court on December 11th that he had attended that day "prepared for trial". Crown counsel, Ms. How, invites me to go behind this representation and find, in effect, that these words were of rhetorical value, intended solely to help lay a foundation for the current s. 11(b) application. Mr. Price, she says, was not prepared to proceed to trial; and further, and if only by inference, that if a trial court had been available Mr. Price would then have played the missing disclosure card to engineer an adjournment.

[32] I have some difficulty accepting Ms. How's invitation. Short of peering into Mr. Price's heart (for which I am singularly ill-equipped) or engaging in rank speculation, there is simply no evidentiary basis to reason or assume that defence counsel meant other than what he said. He had not filed an adjournment application. He had not pursued the issue of the missing breath room video. His trial strategy, which he had perfected by way of appropriate pleadings, did not turn on the outstanding DVD. Ms. How told the presiding judge as much on December 11th: "Mr. Price", she said, "hadn't actually brought an adjournment application. And he showed up today, and wished to have a trial, and we don't have a trial court available". Ms. How, having ample opportunity to demur, did more than merely silently acquiesce to Mr. Price's characterization; she vocally endorsed it. Based on the evidence, the Crown's rereading of the historical record bears a conspicuously revisionist spin.

[33] The Applicant, I find, did not materially contribute to the adjournment of his first scheduled trial dates. That adjournment, and the subsequent delay pending the new trial dates, were primarily a product of three factors, all of which are attributable to "actions of the Crown":

• First, the Crown failed to disclose the correct breath room DVD. This omission is, itself, ultimately of no moment. But the Crown's efforts to remedy its mistake, no matter how well intended, compounded the error and triggered the delay.

• Second, the Crown proceeded on the assumption that the trial could not or would not proceed absent the missing video. This untested conviction explains the Crown's call to the trial co-ordinators' office. No effort was made to confirm this thesis with the defence. Given the inevitable delay envisioned by the Crown and the fact that the proceedings were already testing the upper limit of the s. 11(b) guidelines, it is difficult to understand the absence of evidence respecting either the Crown's efforts to expedite or prioritize the preparation of copies of the correct DVD or, second, why the police Video Services could not complete this mechanical task in less than three weeks so as to avoid jeopardizing the prosecution, the Applicant's rights, or both. As said by way of analogous reasoning in R. v. Smith, supra, at 1132-3 (and affirmed in Morin, at para. 33), Crown adjournment requests,

  … ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances.

  The circumstances before me demanded an explanation for the failure to produce a timely copy of the videotape. That burden is not met. The inference of unjustified delay follows.

• Third, the Crown's conduct had the effect of peremptorily adjourning the Applicant's trial. It did not first consult with the defence to determine whether an adjournment was required. It did not bring an adjournment application. It did not seek a court's sanction. It did not afford the defence an opportunity to address the court until the matter had been rendered academic. Instead, the Crown, by simply calling the trial co-ordinators' office, effectively transferred the Applicant's matter from the trial court to which it was assigned to a court that had no capacity to conduct trials. Only then, when he arrived in 112 Court, did the Applicant learn that his trial would not proceed.

The adjournment of the Applicant's first trial is a product of Crown conduct, and the five-plus months of further delay that resulted from that adjournment are properly attributable to actions of the Crown. Accordingly, the total delay attributable to institutional and Crown-related factors is approximately 14 months.

(c) The Residual Issues

(i) The Appropriate Guideline

[34] In relatively simple cases, such as the Applicant's, Ontario courts have increasingly applied "the bottom of the Morin guidelines, rather than … the extreme upper limits" in assessing institutional delay: R. v. Stephens, [2007] O.J. No. 3500 (S.C.J.), at para. 67. (See, also, R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.) and R. v. Osei, [2007] O.J. No. 768, at paras 39-40 (S.C.J.).) Indeed, as I noted in R. v. Duszak, 2013 ONCJ 586, at para. 65,

Premised on years of local experience, a protocol has developed in this jurisdiction regarding institutional delay in routine drinking and driving prosecutions. On canvassing the accumulating authorities, Hryn J. observed that, "There is current case law specific to the Old City Hall, that a reasonable delay with respect to drinking and driving cases should be at the lower end of the range of eight to ten months set out in Morin": R. v. Salehji, [2010] O.J. No. 4889, at para. 10 (C.J.). (See also: R. v. Leung, [2012] O.J. No. 1874, at para. 104 (C.J.) and R. v. Taylor, 2013 ONCJ 138, at paras. 28-30.) This court's reduced tolerance for institutional delay accords with Sopinka J.'s recognition in Morin, at para. 52, that "when the case load has been constant over a substantial period of time the delay [of eight to ten months] envisaged by the guideline may be regarded as excessive". [Emphasis added.]

Sopinka J.'s comments find real-world purchase in R. v. Sharma, 71 C.C.C. (3d) 184, the companion case to Morin, in which the Supreme Court, at para. 26, applied the "lower range of the guidelines" in view of the original trial jurisdiction having had "time to address the problem" of institutional delay.

[35] Characterized solely as institutional delay, the 14 months between February 28, 2014 (when the first trial date was set) and June 2, 2015 (the start date of the Applicant's next scheduled trial) significantly exceeds the upper limit of constitutional latitude for trial delay, whether measured by Morin or court-specific standards. Dividing these 14 months so that 8½ fall under the rubric of "institutional" and the latter 5½ under "actions of the Crown" affords no comfort to the Applicant (whose s. 11(b) rights remain equally compromised) or to the respondent's efforts to resist this motion. Indeed, delay allocated to Crown conduct is generally treated more seriously in the s. 11(b) calculus than that attributable to limitations on institutional resources: R. v. Yun, [2005] O.J. No. 1584, at para. 42 (S.C.J.); R. v. Chrostowski, [2006] O.J. No. 1306, at para. 61 (S.C.J.); R. v. Stephens, supra, at para. 68; R. v. Panko, 2007 ONCJ 212, [2007] O.J. No. 1867, at para. 11 (C.J.); and R. v. Brown, [2005] O.J. No. 2395, at para. 48 (C.J.).

(ii) Prejudice

[36] Constitutional tolerance for trial delay is obviously related to the degree of prejudice, if any, to a defendant's protected interests. (See, again, R. v. Godin, supra, at para. 31.) To this extent, it's fair to speak of the Morin guidelines as a "sliding scale": R. v. Richards, 2010 ONSC 6202, [2010] O.J. No. 4958, at para. 52 (S.C.J.). If a defendant experienced no prejudice or, as sometimes happens, actually benefited from the delay, a more forgiving approach may be taken to the cap otherwise imposed by the conventional yardstick. However, absent waiver, either expressly or by conduct, the range or "scale" is not infinitely elastic.

[37] In any event, I have no difficulty concluding that the Applicant before me suffered both actual and inferred prejudice. I am satisfied that the delay has had no discernable effect on his liberty or fair trial interests, but even Crown counsel acknowledges the stress and anxiety experienced by the Applicant and its cumulative and growing impact on his security interests. Apart from specific prejudice, the global delay here reasonably supports a determination of inferred prejudice on the basis that "prolongation of proceedings can cause what was initially charge prejudice to become prejudice caused by institutional delay": R. v. Egorov, [2005] O.J. No. 6171, at para. 7 (C.J.). (See, also, R. v. Kovacs-Tatar, 192 C.C.C. (3d) 91, at para. 33 (Ont. C.A.); R. v. Pusic, 30 O.R. (3d) 692, at para. 173 (S.C.J.); and R. v. Godin, supra, at para. 34.)

(iii) The Final Balancing

[38] The total justiciable delay well exceeds the guidelines for relatively simple, single-stage trials such as the one before me. A substantial portion of that delay is attributable to the conduct of the Crown. And the Applicant has suffered cognizable prejudice, both actual and inferred.

[39] These factors do not, however, conclude the s. 11(b) calculus. A proper balancing mandates consideration not only of a defendant's interests but those of society as well. These latter interests, as noted earlier, include an interest in determining cases, particularly serious ones, on their merits. Drinking and driving offences are universally regarded as "serious" (R. v. Lahiry, supra, at para. 89), but not all such charges are equally grave and no class of offence is insulated from s. 11(b) scrutiny. The Applicant's BAC readings are significantly elevated and he was literally "asleep at the wheel". However, some more common aggravating factors (such as the occurrence of an accident or conspicuously dangerous driving) are not part of the presenting scenario. Further, the Applicant was not charged with impaired care and control of his vehicle. While the alleged offence is in no way trivial, in the end I am satisfied that the length of the delay, the Crown's role in its unjustified protraction and the prejudice experienced by the Applicant tip the balance in favour of concluding that his s. 11(b) rights have been infringed.

[40] In R. v. Williamson, supra, the Court of Appeal recently dealt with a case in which, among other grounds, the appellant claimed that the trial court erred in dismissing his s. 11(b) application. The institutional and Crown delay totaled some 26 months, approximately eight months beyond the Morin guidelines for a two-stage trial (as opposed to the excessive four to six months in the case of the immediate Applicant's single-stage proceedings). The Court of Appeal acknowledged that the appellant was "a plainly guilty person" who had suffered "no actual prejudice," and described his crimes as not merely serious but "especially despicable". Nonetheless, it reversed the trial judge's s. 11(b) ruling and entered a stay of proceedings. In reaching this result, the Court twice recited, at paras. 63 and 68, the Supreme Court's reminder in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 40, that "Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences".

E. Conclusion

[41] For the reasons here set out, I find that the Applicant's right to a trial within a reasonable time has been breached. As a result, the proceedings against him are stayed.

Released on May 8, 2015

Justice Melvyn Green