IN THE MATTER OF

An application for a stay of proceedings for an infringement of s. 11(b) of the Charter in respect to a charge laid under the Highway Traffic Act, R.S.O. 1990, c. H.8

Between

Corporation of the City of Mississauga Prosecutor

and

Ivona Ciocan Defendant

Ontario Court of Justice Mississauga, Ontario

Before: Quon J.P.

Reasons for Judgment

Charge: s. 144(18) H.T.A. – "red light - fail to stop"

S. 11(b) Motion argued: January 30, 2015 (ruling on motion reserved)

Trial held and completed: May 23, 2014, August 22, 2014, and January 30, 2015

Judgment rendered: May 28, 2015

Counsel:

• M. Commisso, municipal prosecutor
• R. Duncan, legal representative for the defendant

Cases Considered or Referred To

• Hill v. Toronto (City), [2007] O.J. No. 2232 (O.C.J.), per Libman J.
• Mississauga (City) v. Lam, [2012] O.J. No. 5594 (O.C.J.), per Quon J.P.
• R. v. Abrey, 2007 SKQB 213, [2007] S.J. No. 331 (Sask. Q.B.)
• R. v. Askov, [1990] S.C.J. No. 106, [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449 (S.C.C.)
• R. v. Bidyk, [2003] S.J. No. 558 (Sask. Prov. Ct.)
• R. v. Bilinski, 2013 ONSC 2824, [2013] O.J. No. 2984 (S.C.J.O.), per Durno J.
• R. v. Bramwell (1996), 106 C.C.C. (3d) 365 (B.C.C.A.)
• R. v. Byron, 2001 MBCA 81, [2001] M.J. No. 245, 156 C.C.C. (3d) 312 (M.C.A.)
• R. v. Cook, [1997] S.C.J. No. 22 (S.C.C.)
• R. v. Dixon, [1998] S.C.R. 244, 122 C.C.C. (3d) 1 (S.C.C.)
• R. v. Ferguson, [2005] O.J. No. 3442 (S.C.J.O.), per Durno J.
• R. v. Fiddler, 2012 ONSC 2539, [2012] O.J. No. 2001 (S.C.J.O.), per Fregeau J.
• R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.)
• R. v. Hussain, [2005] O.J. No. 158 (O.C.J.), per Casey J.
• R. v. Kalanj, [1989] S.C.J. No. 71, [1989] 1 S.C.R. 1594, 48 C.C.C. (3d) 459 (S.C.C.)
• R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.O.), per Code J.
• R. v. MacDougall, [1998] S.C.J. No. 74 (S.C.C.)
• R. v. Moniz, [1999] O.J. No. 312 (O.C.J.), per Quon J.P.
• R. v. Morin, [1992] S.C.J. No. 25, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1 (S.C.C.)
• R. v. Omarzadah, [2004] O.J. No. 2212 (O.C.A.), per Doherty J.
• R. v. Pinkus, [1999] O.J. No. 5464 (S.C.J.O.), per McKinnon J.
• R. v. Pioneer Construction Inc., [2006] O.J. No. 1874 (O.C.A.), per Weiler, Rosenberg, and MacPherson JJ.A.
• R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.O.), per Hill J.
• R. v. Stinchcombe, [1991] S.C.J. No. 83 (S.C.C.)
• R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (O.C.A.), per MacPherson, Simmons and Blair JJ.A.
• R. v. W. (D.), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91 (S.C.C.)
• R. v. Wilson, [2013] S.J. No. 711 (Sask. C.A.)

Statutes, Regulations and Rules Cited

• Canadian Charter of Rights and Freedoms, 1982, ss. 11(b), 24(1)
• Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 144(5), 144(18) and 144(31.2.1)
• Paralegal Rules of Conduct, rule 5(o)

I. INTRODUCTION

[1] When facing a regulatory charge, some accused persons proceed as quickly as possible in dealing with their charge while others fail to advance their case in a reasonable or expeditious manner. Then there are those who never want their trial to ever begin and will do everything possible to avoid the trial by deliberately delaying the commencement of their trial for as long as possible. They do this by employing disingenuous tactics for obtaining adjournments or to inconvenience the prosecution's civilian witnesses who do appear in court on the day of the scheduled trial -- hoping that the inconvenience to the prosecution's witnesses of taking another day off from work will dissuade them from re-attending to testify on the subsequent trial date – which would then ultimately result in the prosecution having to withdraw the charges against the accused person on that subsequent trial date. Or, accused persons will utilize the same delaying tactics to construct, and hopefully, obtain a Charter remedy for an infringement of their right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter.

[2] Such ploys include not actively pursuing or resolving disclosure issues before the trial date, and then asking for an adjournment on the date of the trial claiming incomplete or outstanding disclosure, instead of bringing a proper adjournment application prior to the day of the scheduled trial to obtain the needed disclosure, so as not to inconvenience the prosecution's civilian witnesses or to cause them to attend at the courthouse needlessly. Or, the accused person retains legal representation the night before the scheduled trial and then seeks an adjournment on the date of the trial using the excuse that the accused person's legal representative needs time to prepare for the trial, knowing full well that civilian witnesses would be in attendance for the trial. Or, the accused person does not make any efforts to obtain or make a request in writing for disclosure from the prosecution on the same day on which they attend the courthouse to file their Notice of Intention to Appear for a charge laid under a Part I Certificate of Offence, but then seeks an adjournment on the date of the trial with the excuse that they need time to request or to obtain disclosure. Or, the accused person does not make a proper adjournment application to adjourn the trial prior to the actual date of the trial when they know they will be out of the country on the date of the trial and had already obtained an airline ticket for their trip weeks earlier, yet they purposely send someone in their stead on the day of the trial to seek an adjournment when there are civilian witnesses in attendance for the trial. Or, when the accused person's legal representative insincerely submits and asks the prosecution for irrelevant items of disclosure or insists on obtaining or be provided with copies of manuals for devices when the same copies of the manuals or information for the same devices had already been obtained by the legal representative for those particular devices on many previous occasions, which unquestionably delays the proceeding unnecessarily.

[3] Although a proper balance has to be achieved between an accused person, on one hand, having enough time to adequately prepare or being able to obtain all material and relevant evidence in respect to a charge in order to have a fair trial and to be able to make full answer and defence and society's desire, on the other hand, to have the accused tried on the merits of the case when the memories of witnesses are still available and fresh, it is these examples of insincere ploys that delay justice and burden the already overcrowded trial dockets, as well as wasting prosecutorial, administrative, enforcement, and judicial resources, and affects every accused's access to prompt justice and the public's respect for the administration of justice.

[4] However, for those who do not deliberately drag their feet in commencing their trial, they have a constitutionally guaranteed right to a trial within a reasonable period that comes with a remedy of a stay of proceedings if that right is clearly infringed. And, while some defendants use the guarantee under s. 11(b) of the Charter as a protective shield to guard against unreasonable delay in commencing or completing their trial, others rely on it as an offensive weapon or a ploy to further delay the proceedings, or attempt to artfully use it to obtain a stay of proceedings when they themselves had caused or precipitated the delay, which inevitably tarnishes the protection of that particular right.

[5] Now, for this proceeding, Ivona Ciocan, the defendant, had been involved in a collision on August 1, 2012, with another vehicle in an intersection controlled by automatic traffic lights, in which she was subsequently charged for failing to stop for a red light, contrary to s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8. However, the defendant contends that she had entered the intersection when she had been facing a green light, despite three prosecution witnesses testifying in the trial that her traffic light had been red when she entered the intersection.

[6] In addition, the defendant has brought a 11(b) application to have her red light charge stayed on the grounds that her right to be tried within a reasonable time had been infringed, as the defendant had been irremediably prejudiced from having a fair trial as she had been unable to make full answer and defence because the memory of the event for the defendant and for one defence witness had faded due to the unreasonable delay that it had taken to commence or complete the trial. However, unlike 11(b) Charter applications that are normally brought and argued prior to the commencement of the trial, the 11(b) application in this proceeding was not heard until after the testimony of the six witnesses had been completed, since the application had not been perfected until after the trial had commenced and the prosecution had closed its case. This exceptional situation came about because on May 23, 2014, which had been the fourth scheduled trial and the date on which the first 11(b) application had been originally set to be argued prior to the commencement of the trial, the defendant's legal representatives had not yet perfected the Charter application. This had been due to transcripts for some of the prior court appearances being ordered late and not being available, and therefore, the defendant was not granted an adjournment to perfect the application, since civilian witnesses had now been in attendance for the third time without the trial commencing. The trial then commenced on May 23, 2014, but was not completed on that day, as there had not been enough court time scheduled that day to hear all the witnesses and complete the trial, since the trial had started 45 minutes late because the defendant's trial legal representative had not picked up the transcripts until the morning of the trial and had required time to review the transcripts. Subsequently, on July 15, 2014, the defendant's legal representatives filed a new or second 11(b) application, which had now been perfected, to be heard on August 22, 2014, on the day on the continuation of the trial. However, it was decided on August 22, that the 11(b) application would only permitted to be argued at the end of the trial during final arguments, since the trial had already commenced and the prosecution had closed its case on May 23, 2014. In addition, the defence did not proceed with their defence on August 22nd, as another adjournment was sought and obtained in order that a defence witness could appear to testify, since the defence had not obtained a subpoena for that witness's appearance. The testimony of the six witnesses was eventually completed on January 30, 2015, after which the 11(b) application was argued during closing arguments.

[7] For the reasons that follow, the defendant's 11(b) application is dismissed, as the defendant's right to a trial within a reasonable time has not been infringed. And, for the defendant's charge, the prosecution has met their burden of proving beyond a reasonable doubt that the defendant had committed the offence of failing to stop for a red light contrary to s. 144(18) of the Highway Traffic Act.

II. BACKGROUND

[8] At approximately 8:23 a.m. on August 1, 2012, the defendant, Ivona Ciocan, who had been 37 weeks pregnant, had just dropped her oldest son off at daycare and had been returning home and driving her beige-coloured Honda Civic motor vehicle westbound on Erin Centre Boulevard in the City of Mississauga, when she entered the intersection at Glen Erin Drive and collided with a southbound vehicle driven by Julian Kanarek. Before arriving at the intersection of Erin Centre Boulevard and Glen Erin Drive, the defendant had said that she had been travelling at approximately 39 k.p.h. and that she could see from about 100 meters away that the traffic light for Glen Erin Drive had been red. Erin Centre Boulevard is a road that runs east and west, while Erin Centre Boulevard is a road that runs north and south. As she approached the intersection, she observed a City of Mississauga transit bus stopped in the curb lane immediately to her right and just east of the intersection. At about 10 to 15 meters from the stop line, she said she had seen the traffic light for that intersection turn green from red. She then said she accelerated and entered the intersection, and as she approached the southbound lanes for Glen Erin Drive, she said she saw to her right a large black-coloured motor vehicle suddenly approach her vehicle. At that point, she said she had tried to steer her vehicle toward the eastbound lanes of Erin Centre Boulevard to avoid that southbound vehicle, but unfortunately she could not avoid it and a collision with that southbound vehicle had resulted.

[9] After the police arrived, witnesses who were at that intersection and who were not directly involved in the collision provided statements to Cst. Soos, the Peel Region police officer who had investigated the accident. Two independent witnesses, Mike Millar and Nicklos Gardanis, provided statements that contradicted the defendant's version of what had occurred by indicating that the defendant while driving her vehicle westbound on Erin Centre Boulevard had entered the intersection on a red light. Subsequently, the defendant, Ivona Ciocan, was charged and issued a Part I Certificate of Offence of "failing to stop for a red light", contrary to s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[10] To represent her on the red light charge, the defendant then retained a paralegal firm located in the City of Toronto named the "Traffic Ticket Solutions Law Firm", which is managed by Maria MacBeth (the "Toronto-based paralegal firm"). A "Notice Of Intention To Appear" was then filed with the court on August 15, 2012, by the defendant or by her legal representative, indicating the defendant's intention to dispute the charge and that the defendant was being represented by that Toronto-based paralegal firm. Then on September 12, 2012, Court Administration at the Mississauga Provincial Offences courthouse set and notified the parties that the trial for the defendant's Part I offence would be held on April 8, 2013. In addition, for the defendant's trial, the Toronto-based paralegal firm had hired or retained Richard Duncan, a licensed paralegal, to conduct the defendant's trial (the "trial legal representative"). However, in their division of labour, the Toronto-based paralegal firm had been responsible for obtaining disclosure and witness summonses and in preparing and filing adjournment motions and the 11(b) application, while Richard Duncan, the trial legal representative, would be only responsible for conducting the trial and for arguing the 11(b) motion.

[11] However, on April 8, 2013 (the first scheduled trial date), the trial of the red light charge did not commence as scheduled, since the defendant's trial legal representative, Richard Duncan, had requested an adjournment on two grounds. For the first ground, Duncan had indicated that some parts of the police officer's notes were illegible and needed to be typed out, although the prosecution had faxed the disclosure documents to the defendant's Toronto-based paralegal firm on January 10, 2013, but a formal or written request for typed notes had not been made earlier to the prosecution during those three months before the scheduled trial. In addition, the Toronto-based paralegal firm did not provide the disclosure documents to Richard Duncan, the trial legal representative, until the Friday just before the Monday, April 8, 2013, trial date. As for the second ground, Adilla Best, one of the witnesses that the defence believed would be favourable to their defence and which they believed would be called by the prosecution, was not in attendance, as the witness did not receive the subpoena or witness summons to attend that had been obtained and sent to her by the police officer who had investigated the accident. However, the police officer had contacted Adilla Best a couple of days before the April 8th scheduled trial date and had received information that Best could not attend as she could not get time off from work because of the short notice. In addition, two of the prosecution's civilian witnesses were in attendance on April 8th and could have given their testimony on that day. The defence's adjournment request was then granted and the trial was rescheduled to July 29, 2013 (the second scheduled trial date).

[12] However, after the adjournment of the first trial date, the defendant's legal representative of record, Traffic Ticket Solutions Law Firm, contacted Adilla Best on April 18, 2013, about her availability to appear to testify on July 29, 2013. It was learned that Best had her vacation scheduled at that time and would be out of the province on July 29th and would not be able to attend the trial scheduled on that date. The defence then brought a motion on May 13, 2013, to adjourn the July 29th trial date. The defence motion was granted and the trial was then rescheduled to be held on September 13, 2013 (the third scheduled trial date).

[13] Then on September 13, 2013, when the parties appeared for the defendant's scheduled trial it was learned that the trial had been erroneously scheduled on a day and courtroom that is normally reserved for Ministry of the Environment matters. And, because there would be 5 to 6 witnesses testifying in the defendant's trial, the prosecution did not believe that once the Ministry of the Environment had finished with their matters, that there would be sufficient court time left to complete the defendant's trial. The prosecution then brought a motion to adjourn the trial. Civilian witnesses were also present on that day for both the prosecution and the defence. However, it was also decided on that day by the presiding justice that a judicial pre-trial could be held later that morning after the Ministry of Environment matters were completed to see if the trial issues could be narrowed or resolved. A judicial pre-trial was then conducted later that day on September 13th. It was then agreed by the parties that the defendant's matter would be scheduled to return on October 15, 2013, for a continuation of the judicial pre-trial, so as to allow the parties time to resolve any of their issues. However, on October 15th, the parties informed the presiding justice that they could not resolve the defendant's matter or narrow the triable issues, thereby necessitating that a trial date be scheduled for May 23, 2014 (the fourth scheduled trial date). Prior to the fourth scheduled trial date, the defendant's Toronto-based paralegal firm then filed a 11(b) application with the court on April 9, 2014, and gave notice to all required parties that they would be making that Charter application on May 23, 2014.

[14] However, the 11(b) application was not perfected as transcripts of the proceedings for two of the four prior court appearances of May 13, 2013 and October 15, 2013, had only been ordered on April 9, 2014, and had not been completed and ready for pickup until the defence had been notified on July 23, 2014. As such, the 11(b) application had not been permitted to be argued or entertained on May 23, 2014, due to the missing transcripts for two of the previous court appearances. The defendant's trial legal representative then brought an application for an adjournment to perfect the 11(b) application, but it was not granted due to civilian and police witnesses being present to testify at the trial for the third time. Some of the civilian witnesses had also attended on the first and third scheduled trial dates (the civilian witnesses did not appear on the second scheduled trial date as that date had been adjourned by a defence motion brought on May 13, 2013). As such, the trial finally commenced on May 23, 2014. The prosecution's four witnesses completed their testimony on May 23rd, at which time the prosecution closed their case. However, the trial could not be completed in the half-day of court time that had been set aside for the trial that morning of May 23rd, as the trial had commenced late that morning due to Richard Duncan, the defendant's trial legal representative, not having picked up the transcripts until the morning of the trial and needing 20 minutes to review the transcripts. Those particular transcripts had been ordered on October 25, 2013, and the ordering party had been notified on April 10, 2014, that the transcripts were ready to pick up, which would have provided nearly six weeks for the defence to pick up those transcripts.

[15] After the May 23rd appearance, the defendant's legal representatives had filed a new 11(b) application on July 15, 2014 with the court, notifying all the required parties that the Charter application would be made on August 22, 2014. The defendant's Toronto-based paralegal firm was also notified on July 23, 2014, that the transcripts for the missing two court appearances were completed and ready to pick up. The missing transcripts were then filed on the prosecution on August 15, 2014.

[16] However, on the recommencement of the trial on August 22, 2014, the defence sought another adjournment, since Adilla Best, a witness being called by the defence, could not attend as she had a doctor's appointment on that day. In addition, Richard Duncan, the trial legal representative, had admitted that the defence had not subpoenaed Best to attend for the August 22nd trial. Moreover, although it had been suggested to the defence that the court time that had been set aside for the continuation of the trial on August 22nd could still be utilized by having the defendant testify first, instead of waiting for Adilla Best to testify, the defence did not wish to have the defendant provide her testimony until Adilla Best had first given her testimony. It was also decided on August 22nd that the 11(b) application would not be heard until after the testimony of witnesses had been completed, since the trial had already commenced and the prosecution had closed their case. The trial was then adjourned to January 30, 2015. On January 30th, despite the defence submissions on August 22, 2014 that they wanted Adilla Best to testify before the defendant would testify, the defendant in fact had testified first for the defence, which was then followed by Adilla Best's testimony. After the witness testimony was completed, the defendant's 11(b) application was heard before the closing arguments were made. Judgment was then reserved on both the 11(b) application and on whether the prosecution had proven that the defendant had committed the red light offence beyond a reasonable doubt, and adjourned to May 28, 2015, for the judgment to be rendered.

Summary of Testimony

[17] In the trial that was held over three days, six witnesses had testified. Four testified for the prosecution and two for the defence. The witnesses were: (1) Julian Kanarek, the driver of a motor vehicle southbound on Glen Erin Drive that had collided with the defendant's motor vehicle; (2) Mike Millar, a motorist who had been westbound on Erin Centre Boulevard in the curb lane and stopped for a red light at the intersection immediately in front of a Mississauga Transit bus; (3) Nicklos Gardanis, the driver of the City of Mississauga Transit bus that had been westbound in the curb lane of Erin Centre Boulevard and stopped for a red light behind a motor vehicle that was also stopped for a red light at the intersection; (4) Cst. Soos, the Peel Region police officer who investigated the accident and who had laid the red light charge against the defendant; (5) Ivona Ciocan, the defendant; and (6) Adilla Best, who had testified for the defence and who had been a motorist that had been eastbound on Erin Centre Boulevard and had been stopped at the intersection for a red light.

[18] In addition, the testimony given at trial would also apply to the s. 11(b) determination. As such, the following is a summary of the evidence given by the six witnesses who testified at the trial:

(1) Julian Kanarek, the other driver of the vehicle that collided with the defendant's vehicle

[19] Julian Kanarek testified that on August 1, 2012, at approximately 8:00 a.m., he had been alone in his Ford Edge SUV motor vehicle that was southbound on Glen Erin Drive in Mississauga, approaching the intersection at Erin Centre Boulevard, which is controlled by traffic lights.

[20] In addition, Kanarek said that on Glen Erin Drive there are two southbound lanes and that he was in the left lane. In addition, he said he had been going around 50 k.p.h. and that the speed limit for that road is 50 k.p.h.

[21] Moreover, Kanarek said he does not recall any vehicles in front of him and that the intersection was clear. He further explained that there were no vehicles on southbound Glen Erin Drive in front of or beside him, but there may have been vehicles behind him. He also said he did not stop his vehicle before entering the intersection. In addition, he said that he does not recall seeing a vehicle stopped in the eastbound lanes of the intersection. However, he said he recalls there being a Mississauga Transit bus stopped in the curb lane of westbound Erin Centre Boulevard.

[22] Furthermore, Kanarek said the colour of the traffic light for him was green as he approached the intersection and that it had always been a green light. He also said that he had continued through the intersection and had entered the intersection when the light was green. Then, suddenly, he said there was something in front of him that had come from his left. He also said that in his peripheral vision, he had seen that it had come from behind the stopped bus and had entered into the intersection and then drove in front of him. He also said that when he saw the car in front of him, he had applied his brakes and steered to the right. However, at that moment he said he did not recall seeing the colour of the traffic light, but that it had been green when he had entered the intersection, and that when he had continued through the intersection he had not checked on the light again. He also said the other car had not been in the same lane as the bus, but right next to the bus in the center lane as opposed to the left turn lane. In addition, he said that there had been two lanes plus a left turn lane for Erin Centre Boulevard, and that the other car had gone straight through.

[23] Moreover, Kanarek said that he had been one-third to one-quarter of the way into the intersection when he had seen that vehicle. He also said he had applied his brakes and steered right, but the front of his vehicle had hit the other car on its passenger-side rear door. He then described the other vehicle as being a four-door beige-coloured compact car, which he learned afterwards, had been a Honda Civic.

[24] Furthermore, Kanarek said that after he had collided with the other vehicle, he had bounced off and then rolled a distance to be then facing in the northwest direction in the westbound lanes of Erin Centre Boulevard. He also said his vehicle had bumped the curb on Erin Centre Boulevard, but his airbags did not deploy. In addition, he said that when the other vehicle in the accident had come to a stop it had been blocking the southbound lanes of Glen Erin Drive.

[25] Kanarek also said he does not recall speaking to the other driver involved in the collision with his vehicle. He further said he had received a mild to moderate concussion in the collision from his head striking the passenger side window and had received whiplash on the right side of his neck.

[26] Furthermore, Kanarek said that after the collision he had called his wife from his vehicle and that his wife had come to the accident site because their house was only a block away. He then said he had gotten out of his vehicle and sat on the curb. He also said a man, who was a witness, had come over to him and asked if he had been okay. However, he does not recall speaking to a woman, but he said that his wife had spoken to her. He then explained that the other driver of the vehicle involved in the collision with him had approached him, but his wife had intercepted her and had told her not to speak to him, but to speak to the police officer. In addition, he said that he did not observe the man, who had asked if he had been okay, speaking with the other driver involved in the collision.

[27] In addition, Kanarek said the weather had been clear, sunny, and dry, and that there had been nothing that had hampered the roadway. He also said he did not recall any honking or the screeching of tires. Moreover, he said he had not been distracted and had been looking at the traffic light as he approached the intersection.

(2) Mike Millar, the motorist who had been stopped first in line at the stop line in the westbound curb lane of Erin Centre Boulevard

[28] Mike Millar testified he had observed the motor vehicle accident that had occurred on August 1, 2012, at approximately 8:45 a.m. He also said at the time he had been the sole occupant of a Nissan 350Z motor vehicle that he had been driving westbound on Erin Centre Boulevard. In addition, he recalled that he had been stopped for a red light at the intersection of Glen Erin Drive for about 30 seconds in the curb lane, which is the most northerly of the lanes.

[29] Furthermore, Millar said that Erin Centre Boulevard has two through lanes and one left turn lane. He also said he had been the first car that had been stopped at the stop line.

[30] In addition, Millar said there is a high school in that area and that the speed limit is 40 k.p.h. for the school zone there. He also said the road is completely straight and that he had a clear view of the traffic light signals. Moreover, he said there was a City of Mississauga bus directly behind him, but there had been no one directly stopped beside him to his left. However, he did not recall if there had been a car in the westbound left turn lane.

[31] And, before the accident occurred, Millar said he had looked in his side-view mirror to see what was coming. At that moment, he said the traffic light had been red when he had observed a car approaching in the lane to his left, and based on the that car's speed he recognized that the car was not going to stop. However, he said that he did not know the speed of that car nor could he tell whether that car had been slowing down. He also said he had looked back and forth at his side-view mirror a couple of times. He then said he had observed that motor vehicle in the lane to his left go past him through the red light and hit the Ford Edge motor vehicle car that had been going southbound. In addition, he said that after the car in the lane to his left had gone past him, he had looked up at the light and observed that the traffic light he was facing had been still red when the collision had occurred.

[32] In addition, Millar said he did not hear a horn or the screeching of brakes.

[33] Millar also said he believes that the location of where the defendant's vehicle and the Ford Edge vehicle had hit each other had been in the most "westerly" southbound lane.

[34] Furthermore, Millar said that the weather had been perfect and a nice day at the time of the collision, and that there had been no issues with the weather. He also said there had been nothing that would have affected the vision of the roads.

[35] Moreover, after the collision had occurred, Millar said that he had turned right at the intersection and parked his vehicle around the corner, and then ran across the street to the collision site on Glen Erin Drive. He then believes he went to the Ford Edge first to the check on the male driver. He also believes that another woman, which had not been the defendant, had gotten out of her car and had been there as well. In addition, Millar said the defendant was also there at the intersection and that this other woman had been standing with the defendant. He further said that he believes that the other woman was presently in the courthouse and that she had been in the courthouse with the defendant.

[36] Millar also said he had only brief conversations with the people at the scene and thinks he had spoken briefly with both the defendant and the man that had been hit to see if they were okay. However, he said he does not recall having a conversation with the other woman who was a witness and who had been standing with the defendant at the accident scene. In addition, he said he did not ask the male driver nor the defendant on what had happened, nor ask that question to that other woman who was a witness and at the scene. He also said he had remained at the scene for the police to arrive.

(3) Nicklos Gardanis, the driver of the City of Mississauga Transit bus that had also been stopped in the westbound curb lane of Erin Centre Boulevard

[37] Nicklos Gardanis testified that between 9:00 to 10:00 a.m. on August 1, 2012, he had observed an accident occur. He also said he had been driving a City of Mississauga Transit bus westbound on Erin Centre Boulevard. In addition, he described the bus as being a double bus or a 60-foot articulated bus.

[38] Moreover, as part of the defensive driving training that he had received, Gardanis said he had been taught to look around constantly at his surroundings to see what other cars and people were doing.

[39] Gardanis also said that Erin Centre Boulevard has two westbound lanes and that the speed limit there is 50 k.p.h. He further said he had approached the intersection on that morning and had only stopped in the curb lane at the intersection of Glen Erin Drive and Erin Centre Boulevard for a red light and not for picking up or dropping off passengers at that location, because his route was an express bus and there is no scheduled stop for his bus at that location.

[40] In addition, Gardanis said there are no hills there, and that John Fraser High School is in the area, but is not sure if there are traffic lights in front of the high school. He also said he drives that route regularly and there are only minor curves there, if any at all. He also said there was nothing that would have hampered his view of the traffic signals that morning.

[41] Furthermore, Gardanis said he recalled there had been a vehicle that had been stopped in front of his bus that morning at that intersection, but cannot recall how many vehicles had been stopped in front of him.

[42] Gardanis also said that when he looked in his left-side mirror, he had observed a car westbound in the lane next to his lane approach the intersection, and once he realized that the car was not going to stop, he said he cringed in anticipation of the consequence of that act. He then said he had observed that car drive through the intersection and collide with a southbound vehicle driving on Glen Erin Drive. In addition, he said he had observed that the traffic light had been still red when that westbound car had crossed the stop line and entered the intersection, and that it had still been red when the collision occurred. Moreover, he said he did not see that traffic light turn to any other colour. He also indicated that no one had told him that the light had been still red when the collision had occurred.

[43] In addition, Gardanis said he did not recall whether the defendant's motor vehicle had attempted to stop or slow down, nor does he recall the make of the car he observed going through the red light. He also said he does not recall if there had been a horn noise or the screeching of tires, since it had all happened so fast.

[44] Moreover, Gardanis said that his bus had been situated higher than the car that had been stopped in front of his bus, and that when he is in the driver's seat of the bus he would be sitting at a height of four feet above the ground. In addition, he said he had a clear view of the intersection.

[45] Furthermore, Gardanis said the collision between the two vehicles had occurred on the Glen Erin Drive side, but the vehicles from the force of the collision had been pushed further along on Erin Centre Boulevard. Gardanis also said he did not see the two vehicles make any maneuvers before the collision.

[46] In addition, Gardanis said he had reported the collision to his Transit Control on his CB radio and had asked for a detour around the accident scene. He also said he did not get out of the bus, nor did he speak to anyone at the intersection after the collision. Moreover, he had described the weather at that time as a clear day and that the road conditions had been fine.

(4) Cst. Soos, the investigating officer

[47] Cst. Soos testified he had investigated the accident involving the defendant on August 1, 2012, at the intersection of Glen Erin Drive and Erin Centre Blvd. in the City of Mississauga. He also said he had arrived at the accident scene at 8:28 a.m. on that day. In addition, he said that other officers had also attended the scene that day, but they had been involved in traffic management, but that it had been possible that they had collected information or details from other individuals. He also said he had provided Officer Gregoire's notes to the disclosure office.

[48] Furthermore, Cst. Soos had described the roads and the intersection where the accident occurred as being Glen Erin Drive, which has two northbound and two southbound lanes, and Erin Centre Boulevard, which has two eastbound and two westbound lanes. Moreover, he said the intersection had been controlled by automatic traffic lights for all directions and that the speed limit for both roads is 50 k.p.h.

[49] In addition, Cst. Soos said that during the 31 minutes he had been at the accident scene, he had observed the traffic lights cycle in all four directions and had noted that they had been functioning and in good working order. He also noted the traffic light sequence at the intersection, so that when the light for east and west traffic was green then the colour of the traffic light for north and south traffic was red, and that when the light had been red for east and west traffic then the light had been green for north and south traffic. Furthermore, he said the amber light between the green and red light sequence had been for a duration of three seconds, and that there had been a full red light in all directions for one to 1.5 seconds before the light would turn green for one of the directions. However, he said he did not write this down in his notes, but recalls this sequence, since lights at every intersection are all standardized and follow the same pattern or routine, except when it is varied with an advanced green light. He also said there had been nothing about the lights that had caused him any concern. And, for further clarification, he said that when the east-west light had been green then the north-south light would be red, which would then be followed by an amber light, and then followed by a full-red light in all directions before the other direction would open. In short, he said the sequence of the lights had been green -- to amber -- to red.

[50] Moreover, when he arrived at the accident scene at 8:28 a.m., Cst. Soos said he had observed the two vehicles that had been involved in the collision in the intersection. He also said both vehicles had been situated in the westbound lanes of Erin Centre Boulevard, west of Glen Erin Drive on the northside of the street. He also said the point of impact between the two vehicles had been within the intersection. He then described the two vehicles as being a blue-coloured Ford Edge motor vehicle and a silver-coloured Honda Civic motor vehicle. He also said there had been heavy damage to both vehicles, and in his opinion, both vehicles had been write-offs. In addition, he said there had been significant damage to the front driver-side corner of the blue-coloured Ford Edge vehicles, especially to the front and the wheel of that vehicle, while the passenger-side of the Honda Civic had been damaged.

[51] In addition, Cst. Soos said he had observed tow trucks there, as well as noticing that fire and ambulance vehicles had arrived shortly after he had arrived at the scene. He also said he did not note any skid marks on the road.

[52] Cst. Soos also said he had identified everyone who had remained at the scene and had conversations with them. He also said that after these conversations he had been satisfied with who the drivers had been for the two vehicles involved in the collision. He then said that Ivona Ciocan had been the driver of the Honda Civic motor vehicle while Julian Kanarek had been the driver of the Ford Edge motor vehicle. In addition, Cst. Soos said he had obtained their driver's licenses and had been satisfied with the identity of the defendant, Ivona Ciocan, whose driver's license photo had matched her likeness.

[53] Furthermore, Cst. Soos said he had also spoken with Mike Millar and Nicklos Gardanis, individuals that he had determined were witnesses and who had been standing at the scene when he arrived. In addition, he said the defendant, Ivona Ciocan, had also given him the name and telephone number of another witness named Adilla Best. However, he said that Adilla Best had not been at the scene when he arrived at the scene, but that he had been able to contact and speak with Adilla Best afterwards.

[54] In addition, Cst. Soos said that Julian Kanarek, the driver of the Ford Edge motor vehicle, had complained of having a pain in his head from hitting the window on his door. Moreover, Cst. Soos said that both the defendant and Julian Kanarek had been taken to Credit Valley Hospital by ambulance. He also said that he had left the accident scene at 8:59 a.m. and had then gone to the hospital to speak to both of them. Furthermore, he said he had given collision report documents to be completed to Julian Kanarek and to the defendant, while they were both at the hospital.

[55] Cst. Soos also said that based on the witness accounts of what had occurred from Mike Millar and Nicklos Gardanis, he had charged the defendant with committing the "red light-fail to stop" offence while the defendant was still at the hospital. In addition, Cst. Soos had testified that his conversation with Adilla Best did not occur until after he had already charged the defendant, but that the information he had gathered from that conversation with Best did not have any impact on the charge he had laid against the defendant.

(5) Ivona Ciocan, the defendant

[56] The defendant testified she had been involved in an incident on August 1, 2012. She said it had been the first day of her vacation, which would then be followed by maternity leave, as she was 37 weeks pregnant at the time. However, she said she had not been on any medication. On that morning, she said she had just dropped her oldest son off at daycare, and had been alone in her car and heading home westbound on Erin Centre Boulevard.

[57] In addition, the defendant said that she had first stopped for a red light at Erin Mills Parkway and that when the light had turned green, she then continued westbound on Erin Centre Boulevard. She then said she had checked her speedometer and had observed that her speed had been 39 k.p.h. She also said there were no cars in front of her or behind her.

[58] Next, as she drove pass the school on Erin Centre Boulevard, the defendant said she had made sure that she had not been driving above the speed limit. She also said the colour of the traffic light at the school had been green when she passed the school and that she had been going at 39 k.p.h. Also, at that point, she said she could see that the traffic light ahead at Glen Erin Drive was red, which was a distance of about 100 meters from the school. Furthermore, she said she had been driving in the second lane of two lanes westbound on Erin Centre Boulevard, which was the lane on the left side of the street. She also said Erin Centre Boulevard was a straight road. In addition, she said there is a third lane for vehicles to make left turns at the intersection.

[59] Furthermore, the defendant said that as she approached the intersection she had gone straight though. In addition, she said that when she had entered the intersection there had been no one to her right nor anyone in front of her.

[60] The defendant also said there had been a bus stopped in the right lane of Erin Centre Boulevard, while she had been in the left lane. Moreover, she said she could see a lady with a white tank top standing by the door of the bus, getting ready to get off. She also said there had been a car behind the bus with its turn signal on; however, she said she did not notice whether there had been a car stopped directly in front of the bus. In addition, the defendant said she knows there is a bus stop at that location where the bus had been stopped, as she takes the bus and is aware of a bus stop being there.

[61] The defendant also said that it had been a sunny and clear day at the time, and that she had a clear view. In addition, as she approached the intersection, she said she had not been accelerating, but slowing down and travelling at about 10 to 15 k.p.h. when she passed the bus. She then said she had pushed on the brakes to stop her car and had slowed down, she thinks, to about 10 k.p.h. Then, when she had been about 10 to 15 meters from the intersection, she said she had looked up and had observed that the light for her direction had just turned green from red.

[62] Moreover, to clarify her earlier testimony, the defendant said she been slowing down for the red light, but when she had looked up, she had observed that her light had changed to green when she had been about 10 to 15 meters from the intersection. She then said she took her foot off the brakes and had put her foot on the gas and accelerated to a speed of 20 k.p.h. Then, she said she had looked to her left and had observed that there were no cars, except for an older dark green-coloured car turning right. In addition, she said she had checked the bus and then had checked the intersection, first to the left and then to the right, to see if there were any cars coming towards her. She also said that as she passed the bus, she observed that the bus had not been moving but had been stopped, so she said that she did check on the bus again. She then said she drove into the intersection while the light had been green and that when she was in the middle of the intersection she had suddenly observed to her right a big black car coming real fast, and in a fraction of a second, she had realized that she was going to be hit. She also said she had noticed a pole in the middle, and as she was pregnant, she had decided in that split second to steer her car into the left lanes, as there were no cars in the left lane. Moreover, she said that she had steered her car a little bit so that it would not hit the pole, but she was then hit and the airbags in her car had been deployed. She then said she felt smoke in her car, which she thinks had been from the airbags being deployed. Then, she said she had braked fast and had stopped her vehicle in the lanes reserved for cars going in the opposite direction on Erin Centre Boulevard. She then said put her vehicle into the park mode.

[63] Furthermore, the defendant said that her vehicle had been hit on the passenger-side by the other vehicle. She also said that when she had first seen the black vehicle it had been going southbound, and had come from the north and going south, and had already been in the intersection. In addition, she said that before the collision had occurred, she had crossed over two lanes, and that the other driver had been in the farthest lane of two northbound lanes, and that she had been hit in the first lane southbound.

[64] After her car had stopped, the defendant said she then got out of her car. She then said she had observed that the black-coloured SUV, which had hit her vehicle, had been turned around the other way. In addition, she said that the location of where she had stopped her car had been situated next to a silver car that had stopped just into the intersection. Then, the defendant said a lady had come out of that silver car and then came to the defendant and had asked if the defendant had been okay. Moreover, the defendant said that the lady, whose name was Adilla Best, had offered to be a witness, and then gave the defendant a piece of paper because the lady had to leave the area in order to get to work. In addition, the defendant said she did not discuss or say anything about the traffic light with Adilla Best. However, because the defendant's insurance company could not contact Adilla Best, the defendant said she had called Adilla Best herself and then said that Best had given her a different telephone number. However, the defendant said she does not recall discussing the accident with Best and that Best had only asked about her baby.

[65] In addition, the defendant said that a gentleman had also come over to her and had started arguing with her.

[66] The defendant also said that a tow truck operator that had been going in the opposite direction had stopped and had informed her that 9-1-1 had been contacted. Then, she said she believes that two police cars had arrived. Furthermore, the defendant said she had also given information to the police. She also said that one police officer had come over to her and that the defendant had provided her driver's license and her phone number to the officer. In addition, the defendant said she had also given the officer the name of the witness named Adilla Best. Then the defendant said the police officer had provided her with a cellphone so she could call her husband.

[67] The defendant also said the police officer had provided her and the other driver with an accident report document.

[68] Moreover, the defendant said that firetrucks had also arrived and that she had been asked by fire personnel if she had been okay. She also said she had been advised to go to the hospital and an ambulance had arrived soon after. In addition, she said the other driver had also been in the ambulance with her and that he had been speaking to the paramedic.

[69] When the ambulance arrived at the hospital, the defendant said she had been placed in a wheelchair, but that the other driver had declined the use of a wheelchair. Then at the hospital, she said her unborn baby had been monitored and it had been determined that the baby had been okay.

[70] The defendant also said she had been given the red light ticket at 11:00 o'clock by the police officer, who she had earlier given her driver's license and the name of the witness, Adilla Best. She also said the police officer had apologized for giving her the ticket. Moreover, she said the police officer had not asked her any questions and had not asked her what had happened, but only asked about the unborn baby.

[71] Also, as part of her narrative, the defendant said that it had been only the police officer and herself in a room at the hospital and that the officer had tried to contact the witness Adilla Best, but the officer had not been successful in reaching Adilla Best at that time. The defendant also said the officer had decided to give the defendant a ticket based on speaking with the bus driver and the other driver, and then had advised the defendant what to do next with the ticket. In addition, the defendant said the police officer had put the defendant's speed down as 60 k.p.h., even though the officer had not been there. Moreover, the defendant said the speed limit for both streets of the intersection is 50 k.p.h.

[72] Furthermore, the defendant said it had been a traumatic and emotional time for her. She also said that for three or four weeks after the accident she had bad chest and knee pains.

(6) Adilla Best, the motorist who had been stopped in the eastbound lanes of Erin Centre Boulevard on the westside of the intersection

[73] Adilla Best testified that on the day of the accident, it had been August in the summertime, and that she had just dropped her son off before 8:30 a.m. at the Erin Community Centre located at Erin Centre Boulevard and Glen Erin Drive. She then said that after dropping off her son she was driving eastbound on Erin Centre Boulevard. She also said that her memory and her recollection of the events is from three years ago.

[74] Best also said that the traffic light for her had been red when she had stopped her motor vehicle at the intersection of Erin Centre Boulevard and Glen Erin Drive. However, Best said that she had been looking at her cellphone when she had been stopped at the intersection, and that when she had looked up she had observed the traffic light for her had been green, but that she did not move her vehicle for an instant and does not know why she did not move her vehicle right away, except for being cautious. She then said she observed a black-coloured SUV spiraling in front of her and then go over to the other side. She also said that beside her had been a white or beige-coloured car coming towards her. In addition, she said she was in shock.

[75] Moreover, Best said that when she was stopped at the intersection for a red light and looking at her cellphone, she did not notice anything around her before the collision.

[76] Furthermore, Best said that she had heard the cars colliding, which had been a big noise. She also said that it had been seconds from hearing the bang to seeing the car spiraling.

[77] When asked if she had observed any vehicles westbound on Erin Centre Boulevard, Best said she thinks she had observed a bus there, but that had been all she remembers. In addition, she said that she cannot testify to seeing the defendant's vehicle travelling westbound on Erin Centre Boulevard, but had been in shock when she did observe the defendant in the defendant's vehicle next to Best's motor vehicle. Best also said she had noticed that the defendant had been really pregnant. Moreover, Best said that she does not know where the defendant had come from and had only observed the defendant and the defendant's car beside Best's motor vehicle after the collision had occurred. In addition, Best does not know how long it had been between the traffic light turning green and to observing the defendant's vehicle beside her own vehicle.

[78] Moreover, Best said that she does not recall speaking with a police officer that day, but did speak to a police office by telephone and had told the police officer what she had observed. However, Best said that she cannot recall today what she had said to the police officer, but whatever she had said to the officer had been the truth and that she had only told him what she had observed that day, which had been limited as to what she had seen. She also recalls speaking to the police officer by telephone closer to the date of the collision and not a month later.

[79] In addition, when asked if she had heard the crash before or after she had observed her traffic light turn green, Best replied that she could not remember and that she had been in shock at that time. She also said that she did not see the colour of the traffic light for westbound traffic.

[80] Best also said she does not recall if anyone else had approached her, but recalls giving the defendant her name and telephone number, after which she had left the area.

III. THE CHARGE

[81] After the collision, the defendant had been charged with committing the following Highway Traffic Act offence issued under a Part I Certificate of Offence:

On the day of August 1, 2012, at 8:23 a.m. Ivona M. Ciocan of [address removed], Mississauga, ON at Erin Centre Blvd. and Glen Erin Drive, in the City of Mississauga

Did commit the offence of:

Red Light – Fail To Stop

Contrary to: Highway Traffic Act, Sect. 144(18)

IV. APPLICABLE LAW

[82] The right to a trial within a reasonable time is guaranteed and contained in s.11(b) of the Charter, which provides that:

11. Any person charged with an offence has the right

(b) to be tried within a reasonable time;

[83] Moreover, if there is an infringement of s. 11(b), then s. 24(1) of the Charter provides the trial judge with the jurisdiction to grant a remedy, which normally is a stay of proceedings:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[84] In addition, for the offence of "red light - fail to stop", s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8, provides that:

Red light

144 (18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

[85] Furthermore, under s. 144(5) of the Highway Traffic Act, motorists facing a red light are required to stop at the stop line if there is one painted on the road surface:

Where to stop – intersection

144 (5) A driver who is directed by a traffic control signal erected at an intersection to stop his or her vehicle shall stop,

(a) at the sign or roadway marking indicating where the stop is to be made;

(b) if there is no sign or marking, immediately before entering the nearest crosswalk; or

(c) if there is no sign, marking or crosswalk, immediately before entering the intersection.

[86] And, the fine for being convicted of committing the offence under s. 144(18) is set out in s. 144(31.2.1) of the Highway Traffic Act and provides for a minimum fine of $200 and a maximum fine of $1000:

Penalty for disobeying red light

144(31.2.1) Every person who contravenes subsection (18) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.

[87] However, the fine of $260.00 with the total payable amount set out as $325.00 on the Notice of Offence that had been issued to the defendant is the out-of-court set fine that is only available to the defendant if she had not elected to have a trial of the charge and had wanted to dispose of her charge without a trial by paying that set fine.

V. ANALYSIS

[88] In this proceeding, two main questions need to be decided. They are whether the defendant's right to be tried within a reasonable time guaranteed under s. 11(b) of the Charter has been infringed, and if has not been, then has the prosecution proven that the defendant has committed the red light charge laid under s. 144(18) of the Highway Traffic Act beyond a reasonable doubt.

[89] For the 11(b) application, the defendant has the burden to prove on a balance of probabilities that her constitutionally guaranteed right to a speedy trial had been violated before the usual remedy of a stay of proceedings can be granted under s. 24(1) of the Charter. In her application, the defendant contends that the unreasonable delay in being tried on her red light charge has caused both the defendant's and her witness Adilla Best's memory to fade, and therefore, the defendant's right to a fair trial has been irremediably prejudiced as she would be unable to make full answer and defence. On the other hand, the prosecution contends that the defendant has failed to prove on a balance of probabilities that her right to be tried within a reasonable time has been infringed, since any prejudice resulting from any delay had been the result of the defendant's actions in obtaining adjournments of the trial, due to not being ready to proceed with the trial, in not being diligent in obtaining transcripts for the 11(b) application, and for the lack of diligence in resolving any disclosure issues raised by the defence in a timely fashion, and for the lack of coordination between the defendant's Toronto-based paralegal firm and Richard Duncan, a licensed paralegal, who had been retained by the Toronto paralegal firm to conduct the trial.

[90] And, on the second question of whether the prosecution has proven that the defendant had failed to stop for a red light beyond a reasonable doubt, the defendant contends that her testimony has been credible that she had entered the intersection on a green light, and as such, she should be acquitted of the charge. However, the prosecution submits that the prosecution has proven that the defendant had entered the intersection on a stale red light beyond a reasonable doubt, based on the unshaken evidence of the two independent witnesses who were situated at the intersection.

[91] In dealing with these two questions, the 11(b) application will be decided first, considering that if the defendant has established on a balance of probabilities there has been unreasonable delay in commencing and completing her trial, then the remedy of a stay of proceedings will have to be granted and the determination of whether the prosecution has proven that the defendant had committed the red light offence beyond a reasonable doubt will not have to be decided.

[92] On the other hand, if the defendant's right to a speedy trial guaranteed under s. 11(b) has not been infringed, then it will have to be decided whether the prosecution has met their burden in proving that the defendant has committed the offence of failing to stop for a red light beyond a reasonable doubt.

(A) HAS THE DEFENDANT PROVEN ON A BALANCE OF PROBABILITIES THAT HER RIGHT TO BE TRIED WITHIN A REASONABLE TIME GUARANTEED BY S. 11(B) HAS BEEN INFRINGED?

(1) The Procedure For Proceeding With An 11(B) Application After The Trial Of The Charge Had Commenced And Where The Prosecution Had Closed Its Case

[93] Normally, a motion for a stay of proceedings for an infringement of s. 11(b) is brought prior to the commencement of the trial so that the trial justice may rule on the application before the trial actually commences: R. v. Byron, 2001 MBCA 81, [2001] M.J. No. 245, 156 C.C.C. (3d) 312 (M.C.A.). In addition, the Court of Appeal for Ontario in R. v. Pioneer Construction Inc., [2006] O.J. No. 1874, at para. 27, has also confirmed that a motion for a judicial stay of proceedings for a s. 11(b) breach is, absent unusual circumstances, ordinarily argued before trial:

A motion to stay proceedings for a s. 11(b) breach is ordinarily argued before trial absent unusual circumstances, …

[94] However, in this particular proceeding, the defendant's trial legal representative had not been allowed to proceed with arguing the 11(b) application prior to the trial commencing on May 23, 2014, as the application had not been perfected due to transcripts of two court appearances being ordered late by the defence and not being available for the application. And, as civilian and police witnesses were present to testify in the trial on that day when the 11(b) application was supposed to be argued, the defence's request for an adjournment to obtain the two missing transcripts was not granted, since some of the prosecution's civilian witnesses had already attended on two prior occasions to testify at the defendant's trial, which had not gone ahead, and that everyone had been there to conduct the trial. Consequently, the prosecution called four witnesses to prove the red light charge and after their testimony had been completed, the prosecution closed their case. However, there had not been enough court time remaining that morning for the scheduled half-day trial for the defence witnesses to give their testimony, as the trial had started 45 minutes late that morning due to Richard Duncan, the defendant's trial legal representative, who had been retained to conduct the trial, not picking up the transcripts for the previous court appearances until that morning, although they had been available and ready for pickup as of April 10, 2014, and had also required some extra time that morning to review the transcripts.

[95] Then subsequent to the May 23rd trial date, the defendant's legal representatives were able to obtain the missing transcripts and then filed a new 11(b) application on the prosecution on July 15, 2014, prior to the continuation of the trial that had been scheduled for August 22, 2014. However, as the trial had already commenced and the prosecution had already closed its case, it was decided on August 22nd that the 11(b) application would be only heard after the trial was completed.

[96] Moreover, the decision to hear the 11(b) application at the end of the trial, after the trial had already commenced and the prosecution had closed its case, is at the discretion of the trial justice. This discretion to hear the Charter application at the end of the trial has been confirmed and recognized by the Supreme Court of Canada and several provincial Appeal Courts, including the Saskatchewan Court of Appeal in R. v. Wilson, [2013] S.J. No. 711 (Sask. C.A.), which had held, at paras. 21 and 22, that there is no set procedure for the determination of Charter violations and relevant remedies, and that the determination of the appropriate procedure is within the discretion of the trial judge, and that deference will be accorded when the discretion is properly exercised. Moreover, the Saskatchewan Court of Appeal also acknowledged that there would be situations where a Charter breach needs to be dealt with immediately, while there other situations in which redress could wait until matters are adjudicated at trial.

Finally, although not in specific reference to s. 11(b), see this Court's decision in R. v. Salisbury, 2012 SKCA 32, 385 Sask. R. 322, where Lane J.A. said:

[14] It is necessary for the Court to simply clarify there is no set procedure for the determination of Charter violations and relevant remedies. The appropriate procedure and process will depend on the particular circumstances of the case taking into account all of the relevant factors. There will be situations where a Charter breach needs to be dealt with immediately and in other situations redress can wait until matters are adjudicated at trial. There are no hard and fast rules, nor would it be possible to set such rules. The determination of the appropriate procedure is within the discretion of the trial judge and, assuming the discretion is properly exercised, deference will be accorded.

It serves no purpose to restate what Lane J.A. said very clearly in R. v. Salisbury; which is to say that, in the result, while there may have been reason to determine Mr. Wilson's stay application before trial, the trial judge's decision to hold the matter in abeyance until the conclusion of the trial was within his discretion and is to be accorded the deference which the appeal judge properly gave it (at para. 30). In sum, I find no reversible error in the appeal judge's decision in this respect.

[97] Ergo, because of the particular and unusual circumstances of this case in which the 11(b) application was not perfected until after the trial had already commenced, and in which witness testimony had already been heard and the prosecution had already closed its case, it had been decided that the 11(b) application would not be heard until after all the witnesses had given their testimony and to be done during the closing arguments.

(2) The Framework For Analyzing And Determining Whether There Has Been Unreasonable Delay

[98] In clarifying their prior decision in R. v. Askov, [1990] S.C.J. No. 106, Justice Sopinka writing for the majority of the Supreme Court in R. v. Morin, [1992] S.C.J. No. 25, stated at paras. 26 to 30, that the primary purpose of s. 11(b) is to protect the individual's right to security of the person, right to liberty, and the right to a fair trial. In addition, he confirmed that s. 11(b) also protects the societal interest in having trials held promptly and in having persons who transgress the law be brought to trial:

The primary purpose of s. 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this court. I will address each of those interests and their interaction.

The individual rights which the section seeks to protect are: (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial.

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.

There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). …

[99] In addition, at para. 30 in Morin, Sopinka J. recognized that as the seriousness of the offence increases so would the societal demand that the accused be brought to trial:

As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.

[100] Furthermore, Sopinka J., at para. 31 in Morin, had outlined the four factors to be considered in determining whether there has been unreasonable delay. They are:

1. the length of the delay,

2. waiver of time periods,

3. explanation for the delay, including

(a) inherent time requirements of the case;

(b) actions of the accused;

(c) actions of the Crown;

(d) limits on institutional resources, and

(e) other reasons for delay, and

4. prejudice to the accused

[101] Also, in describing the general approach for determining whether the right to be tried within a reasonable time had been infringed, Sopinka J. held at paras. 31 and 32 in Morin, that the determination should not be based on the application of a mathematical or administrative formula, but rather by a judicial determination which balances the interests for which s. 11(b) is designed to protect against the factors which either inevitably lead to delay or are otherwise the cause of the delay. He further clarified that this balancing to determine if the length of the delay is unreasonable requires examining the length of the delay minus any period of delay waived by the accused and then evaluating that remaining period of delay in respect to the other factors of explanation for the delay, prejudice to the accused, and the interests s. 11(b) seeks to protect:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.

The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11(b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, [1989] 1 S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.

[102] In addition, at paras. 87 and 88 in Morin, McLachlin J. (as she was then), and in which Gonthier J. concurred, emphasized that the judicial task of deciding whether proceedings against an accused should be stayed in a s. 11(b) inquiry for unreasonable delay is to ultimately balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication:

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

The factors to be considered include the length of the delay, any waiver by the accused of the delay, the reasons for the delay and prejudice to the accused. But simply listing factors does not resolve the dilemma of a trial judge faced with an application for a stay on grounds of delay. What is important is how those factors interact and what weight is to be accorded to each. In this connection, we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay.

[103] Furthermore, in R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.O.), Code J. at paras. 3 to 10, clearly explains the analytical steps described in Morin, that a trial justice has to undertake in deciding whether the 11(b) application should be granted or dismissed:

It is now well known that the framework for s. 11(b) motions requires the court to analyze four distinct factors: the overall length of delay from the laying of charges until the trial concludes; waiver of any individual time periods; the reasons for the various periods of delay; and prejudice to the particular interests of the accused protected by s. 11(b). See R. v. Smith, [1989] 2 S.C.R. 1120, [1989] S.C.J. No. 119, 52 C.C.C. (3d) 97; R. v. Askov (1990), 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106, 59 C.C.C. (3d) 449; R. v. Morin, supra.

Having made findings about each of these four factors, the final balancing stage of analysis requires consideration of the societal interest in a trial on the merits. See R. v. Morin, supra, at pp. 12-13 C.C.C.; R. v. Seegmiller, [2004] O.J. No. 5004, 191 C.C.C. (3d) 347 (C.A.), at paras. 21-25; R. v. Qureshi, [2004] O.J. No. 4711, 190 C.C.C. (3d) 453 (C.A.), at para. 41.

The first factor, concerning the length of overall delay, is simply a mechanism for weeding out frivolous applications. It is referred to as "the triggering mechanism or threshold determination of the excessiveness of the delay". It is only necessary to go on and consider the other three factors if the overall period of delay "is of sufficient length to raise an issue as to its reasonableness". See R. v. Askov, supra, at p. 681 O.R., pp. 1209-10 S.C.R., p. 466 C.C.C.; R. v. Morin, supra, at p. 789 S.C.R., p. 14 C.C.C.

The second factor, waiver of time periods, can be either express or implied but it "must be clear and unequivocal" and made with "full knowledge of the rights the procedure was enacted to protect". When counsel expressly states, on the record, that s. 11(b) is waived for the period of an adjournment, there is little difficulty in applying this factor. However, a waiver can also be implied, for example, from consent to a period of delay where "a choice has been made between available options" and "the actions of the accused amounted to an agreement to the delay" rather than "mere acquiescence in the inevitable". Once a waiver has been found, that period of delay is simply removed from the s. 11(b) analysis and the overall delay is shortened. See R. v. Askov, supra, at p. 674 O.R., p. 1247 S.C.R., pp. 481-82 and 494-95 C.C.C.; R. v. Morin, supra, at p. 790 S.C.R., pp. 13-15 C.C.C.

The third factor, reasons for delay, can be the most important and also the most difficult of the four factors in some cases. It does not involve findings of fault, as there can be good or necessary reasons for delay. This factor simply requires an objective analysis of each period of delay in order to determine its cause. The five traditional causes are: the inherent time requirements of the case; any actions of the defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes, such as judicial delays. Careful analysis of the transcripts of each date where the proceedings were delayed is critically important to this factor. Having objectively determined the cause of each period of delay, based on the transcripts and any other relevant evidence, this factor then assigns a weight to that period. Some delays are said to "weigh against the Crown", some delays are said to "weigh against the defence" and some delays are said to be "neutral". Needless to say, delays caused by the accused's own actions "will justify" an otherwise unreasonable period of delay because the accused invariably seeks some benefit from such delays, such as additional time to prepare, to retain counsel, to bring some collateral proceedings or to try to resolve the case. On the other hand, delays caused by the Crown or by inadequate resources "cannot be relied upon . . . to explain away delay that is otherwise unreasonable". Finally, delay due to the inherent requirements of the case "is neutral and does not count against the Crown or the accused". See R. v. Askov, supra, pp. 477-81 and 483 C.C.C.; R. v. Morin, supra, at p. 794 S.C.R., pp. 16-23 C.C.C.; R. v. MacDougall, [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 128 C.C.C. (3d) 483, at p. 500 C.C.C.

The fourth factor is prejudice to those interests of the accused that s. 11(b) seeks to protect, namely, liberty, security of the person and fair trial. Prejudice to one or more of these interests can be inferred, without extrinsic evidence, from "a very long and unreasonable delay", in other words, from delay that is "substantially longer than can be justified on any acceptable basis". In a case where the period of unjustified delay is "closer to the line", the accused may lead evidence of actual prejudice to one or more of the protected interests, in order to show "that there has been unusual prejudice by reason of special circumstances". See R. v. Askov, supra, at p. 689 O.R., p. 1218 S.C.R., pp. 474 and 482-84 C.C.C.; R. v. Morin, supra, at pp. 23-24 C.C.C.; R. v. Smith, supra, at p. 1138 S.C.R., p. 111 C.C.C.

At the end of assessing these four factors, the court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown. The court should also arrive at some assessment as to the strength or weakness of the claim to prejudice. It is only unreasonable periods of delay, causing prejudice, which s. 11(b) protects against. As noted above, these factors must then be balanced against the societal interest in a trial on the merits.

The above framework can be subtle and complex. I have considerable sympathy for busy Ontario Court of Justice trial judges, trying to manage a crowded docket and, at the same time, engage in this difficult constitutional balancing of interests.

(3) APPLICATION OF THE MORIN FACTORS TO THE PRESENT CASE

(A) What Is The "Overall Length Of Delay" In The Present Case?

[104] In R. v. Morin, at paras. 35 and 36, Sopinka J. specified that for the purposes of a criminal charge, the length of delay in the s. 11(b) analysis is counted from the date the information is sworn or an indictment is preferred. He further commented that an inquiry into whether there is unreasonable delay should only be held if the period is of sufficient length to raise an issue of its unreasonableness:

this factor requires the court to examine the period from the charge to the end of the trial. Charge means the date on which information is sworn or an indictment is preferred (see Kalanj, supra, at p. 1607). Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself it is not counted in determining the length of the delay.

An inquiry into unreasonable delay is triggered by an application under s. 24(1) of the Charter. The applicant has the legal burden of establishing a Charter violation. The inquiry, which can be complex …, should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unless the applicant is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice. If, for example, the applicant is in custody, a shorter period of delay will raise the issue.

[105] Furthermore, in R. v. Kalanj, [1989] S.C.J. No. 71, McIntyre J., for the majority of the Supreme Court, at para. 18, held that the 11(b) calculus is not taken only up to the start of the trial, but is calculated to the completion of the trial:

Section 11 affords its protection after an accused is charged with an offence. The specific language of s. 11 should not be ignored and the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the section into the pre-charge period. The purpose of s. 11(b) is clear. It is concerned with the period between the laying of the charge and the conclusion of the trial and it provides that a person charged with an offence will be promptly dealt with.

(i) Calculating The Overall Length Of Delay For A Part I Regulatory Offence

[106] However, unlike the calculation for a criminal offence, the start date for calculating the overall length of delay for a Part I regulatory offence is not from the date on which the investigating police officer had issued the Certificate of Offence on August 1, 2012, when the proceeding against the defendant would have commenced but from the date the "Notice of Intention to Appear" is filed at the Provincial Offences Courthouse in Mississauga, since the defendant does not receive a date to attend court to answer to the charge in the Notice of Offence and can opt or choose not to contest the charge by paying the out-of-court monetary penalty set out on the certificate, which would then end the defendant's involvement with the charge, or by requesting a meeting with a prosecutor for resolution purposes. For the latter option, if the defendant does not wish to accept the prosecution's offer for resolving the charge then the defendant can still choose to go to trial and file a Notice of Intention to Appear on the same day the meeting with the prosecutor had been held. As such, the defendant's rights under s. 11(b) for a regulatory offence that is commenced by a Part I Certificate of Offence is not engaged generally until the defendant decides to contest the charge and chooses a trial by filing a Notice of Intention To Appear at the court house where the charge would be dealt with, rather than paying the out-of-court settlement amount on the Certificate of Offence to end her involvement with the charge, or if after a resolution meeting with the prosecutor she does not resolve the charge, but chooses to go to trial. See R. v. Moniz, [1999] O.J. No. 312 (O.C.J.), at para. 43 and Mississauga (City) v. Lam, [2012] O.J. No. 5594 (O.C.J.), at para. 3.

[107] Therefore, since the defendant or her legal representative had filed the Notice of Intention To Appear on August 15, 2012, the starting point for determining the overall length of delay is counted from that date.

[108] Overall, the period from August 15, 2012, when the defendant's Notice of Intention To Appear had been filed at the courthouse, to January 30, 2015, which had been the final date of the trial, is 898 days or 29 months and 15 days.

(ii) Waiver Of Any Period Of Delay By The Defendant

[109] The next step after calculating the overall length of the delay, as outlined in Morin at para. 37, is to consider whether there has been any portion of that overall length affected by the waiver of any delay by the defendant:

If the length of the delay warrants an inquiry into the reasons for delay, it appears logical to deal with any allegation of waiver before embarking on the more detailed examination of the reasons for delay. If by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted.

[110] The explanation of what a waiver by the defendant entails that has been explicitly made, or is implied, is set out in R. v. Morin at para. 38. Or, if there is an agreement or conduct that the defendant has waived in whole or in part of his right to complain of delay, then the period that is waived by the defendant is to be deducted from the overall length of delay:

Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver.

[111] Moreover, at para. 40 in R. v. Morin, Sopinka J. held that if the principles of waiver do not resolve the 11(b) application, then the court would have to consider other explanations or reasons for the delay, such as inherent time requirements, actions of the accused, actions of the Crown, limits on institutional resources, and other reasons for the delay. More important, he emphasized that neither the Crown nor the defence can rely on their own delay to support their respective positions:

If the application by an accused is not resolved by reason of the principles of waiver, the court will have to consider the other explanations for delay. Some delay is inevitable. Courts are not in session day and night. Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare. Over and above these inherent time requirements of a case, time may be consumed to accommodate the prosecution or defence. Neither side, however, can rely on their own delay to support their respective positions. When a case is ready for trial a judge, courtroom or essential court staff may not be available and so the case cannot go on. This latter type of delay is referred to as institutional or systemic delay. I now turn to a closer examination of each of these reasons and the role each plays in determining what delay is unreasonable.

[112] In this proceeding, no particular period during those 29 months and 15 days of overall delay had been explicitly or implicitly waived by the defendant. Therefore, there is no deduction attributed to a waiver from the defendant. Consequently, the overall length of delay crosses the reasonableness threshold, which then requires further inquiry and an assessment of the remaining Morin factors. However, not all this time is inexcusable or institutional delay. In determining what amount of the overall length of delay is inexcusable or institutional delay, an assessment of particular periods or portions of the overall length of delay is required in respect to the reason for the delay or adjournment, and then to apportion whether those particular portions are inherent time requirements, neutral time, or institutional delay, or delay attributed to the prosecution or the defence.

(B) The Reasons For The Delay

(a) Relevant Dates For The 11(b) Application

[113] For the 11(b) analysis, the relevant dates, the significance of the date, and the reasons for an adjournment or postponement of a scheduled trial date in this proceeding have been set out in the following table:

Date	Summary of reasons for adjournment or description of the date	Days between Court Appearances
August 1, 2012 (Wednesday)	- the date the alleged offence had been committed
August 15, 2012 (Wednesday)	- the date the Notice of Intention To Appear had been filed at the courthouse on behalf of the defendant. - the Notice dated August 13, 2012, indicates that "Traffic Ticket Solutions Law Firm", a paralegal firm located at 2592 Weston Road, Toronto, would be representing the defendant.	(Aug. 1/12 to Aug. 15/12) 14 days Period not counted
September 12, 2012 (Wednesday)	- the date that Court Administration had sent out the Notice of Trial to the defendant, notifying the defendant that the trial date for the red light charge had been scheduled for April 8, 2013.
January 10, 2013 (Thursday)	- the date on which that the prosecution had faxed the disclosure package to the defendant's Toronto-based paralegal firm.
April 5, 2013 (Friday)	- the date on which Richard Duncan, the defendant's trial legal representative, said he had received the disclosure package from the defendant's Toronto-based paralegal firm (nearly 3 months after the prosecution had faxed the disclosure package to the defendant's Toronto-based paralegal firm).
April 8, 2013 (first scheduled trial date) (Monday)	- April 8, 2013, had been the first scheduled trial date. - the trial did not proceed on April 8th as the defendant's trial legal representative, Richard Duncan, sought an adjournment of the trial on two grounds: (1) that a portion of the police officer's notes were illegible and a typed version needed to be provided and (2) that Adilla Best, a witness important to the defence was not present in the courthouse, although she had been subpoenaed by the investigating police officer to appear on April 8, 2013. - the prosecution had been ready to proceed with the defendant's trial as at least three prosecution witnesses had been in attendance in the courthouse on April 8th. - the defendant's motion for adjournment was granted and the trial was rescheduled to July 29, 2013 (the second scheduled trial date), even though the defence had not verified whether Adilla Best could attend the trial on that day.	(Aug. 16/12 to Apr. 8/13) 236 days or 7 months and 24 days
April 18, 2013 (Thursday)	- from the affidavit of Maria MacBeth dated April 19, 2013: Adilla Best was contacted on April 18, 2013, and told about the July 29, 2013, trial date, but Maria MacBeth was informed by Adilla Best that Best would be on holidays on July 29, 2013, and not be available to attend until August 10, 2013.
May 7, 2013 (Tuesday)	- the date on which the defence had filed a motion to adjourn the July 29, 2013, trial date at the courthouse for the grounds that a defence witness, Adilla Best, would be absent on July 29, 2013. - the motion was scheduled to be heard on May 13, 2013.
May 13, 2013 (Monday)	- the date the defence motion to adjourn the July 29, 2013, trial date was heard and granted on consent. - the motion had been heard nearly 4 weeks after the defence had been aware that Adilla Best would not be available to testify at the July 29, 2013 trial. - the trial was then rescheduled to September 13, 2013 (the third scheduled trial date) for one-half of a day of court time based on 5 to 6 anticipated witnesses.
July 29, 2013 (second scheduled trial date) (Monday)	- the "second scheduled trial date" of July 29, 2013, had been vacated because a pre-trial defence motion to adjourn the trial date had been granted on May 13, 2013, due to Adilla Best, a witness planned to be called by the defence, being on holidays.
September 13, 2013 (third scheduled trial date) (Friday)	- the parties appeared on September 13, 2013, for the third scheduled trial date, but court administration had erroneously scheduled the defendant's trial onto a day set aside specifically for the Ministry of the Environment matters. It appears there were 5 witnesses besides the defendant who were present in the courthouse to testify in the defendant's trial. - the prosecution brought a motion to adjourn the defendant's trial because of the administrative error and because there would not be sufficient court time remaining to complete the defendant's trial with 5 to 6 witnesses in the time remaining once the Ministry of Environment would have completed their matters. However, the presiding judicial officer offered to conduct a judicial pre-trial to narrow the issues, as there would be 5 to 6 witnesses anticipated for the trial. - the defence informed the presiding justice that they were ready to proceed with the defendant's trial. - the judicial pre-trial was commenced later on September 13, 2013, and a second judicial pre-trial date was then offered for October 15, 2013. The defendant's trial legal representative did not object to this procedure and the continuation of the judicial pre-trial was then scheduled for October 15, 2013.	(Apr. 9/13 to Sep. 13/13) 158 days or 5 month and 5 days
October 15, 2013 (Tuesday)	- on the second day of the continuing judicial pre-trial, the defendant's trial legal representative informed the presiding justice that a trial date needed to be set, as the matter could not be resolved. - the trial of the defendant's matter was then scheduled for May 23, 2014 (the fourth scheduled trial date). The defence did not inform the presiding justice that a 11(b) application would be filed to be heard on the scheduled trial date of May 23, 2014, and as such, more court time had not be scheduled to accommodate any 11(b) application.	(Sep. 14/13 to Oct. 15/13) 32 days or 1 month and 2 days
October 25, 2013	- the date on which the defendant's Toronto-based paralegal firm had ordered transcripts for 2 of the 4 previous court appearances of the defendant's matter (for the April 8/13 and Sep. 13/13 court appearances).
April 9, 2014 (Wednesday)	- the date the defence had filed the Notice of Constitutional Question (s. 11(b) application) with the court. - also the date on which the defendant's Toronto-based paralegal firm had ordered transcripts for the remaining 2 of the 4 previous court appearances of the defendant's matter (for the May 13/13 and Oct. 15/13 court appearances).
April 10, 2014 (Wednesday)	- the date the defendant's Toronto-based paralegal firm had been notified that the two transcripts ordered by them on October 25, 2013, were ready for pickup.
May 23, 2014 (fourth scheduled trial date) (Friday)	- the date on which the fourth scheduled trial date and the 11(b) Charter application had been scheduled to heard and argued by the defendant's trial legal representative, Richard Duncan. However, on May 23, 2014, Duncan did not pick up the two transcripts that were ordered for two of the four previous court appearances until the morning of May 23, 2014, and had also required 20 minutes to obtain and review the transcripts which caused the proceeding to commence late and not at 9:00 a.m. - Duncan also indicated that the defendant's Toronto-based paralegal firm had been responsible for ordering the transcripts and that Duncan had only been responsible and contracted to do the actual trial and not responsible for ordering the transcripts or obtaining subpoenas for any defence witnesses. -- However, even a subcontracted legal representative has the same obligation to competently represent the defendant, which includes ensuring that all transcripts for all previous court appearances are ordered and provided to the court for the 11(b) application. - transcripts for 2 of the 4 previous court appearances of the defendant's matter had not been ordered until April 9, 2014 and were not available for the 11(b) application to be heard on May 23, 2014. - transcripts had been only provided to the court for the April 8, 2013, and September 13, 2013, court appearances. There were no transcripts for the May 13, 2013, or October 15, 2013, court appearances. The two transcripts that were available had been ordered on October 25, 2013, and were completed on April 10, 2013. The ordering party had been notified on April 10, 2013, that the two transcripts were ready for pickup. Thus, the defendant's legal representatives had nearly a month and a half to pick up the transcripts to review, but did not pick them up until the morning of May 23, 2014, the day of the trial. - Moreover, the 11(b) application was not perfected due to two transcripts for two of the four court appearances for the defendant's matter had not been yet transcribed, as they had been ordered late by the defence and were missing for the 11(b) application. As such, the application would not be entertained nor heard by the trial justice. - In addition, the six witnesses that would testify at the trial were all present in the courthouse on May 23, 2014. - the defendant's trial legal representative, Richard Duncan, then brought another motion for an adjournment of the trial contending that, despite two judicial pre-trial dates that had been scheduled or used to discuss the defendant's matter, that the defence needed a will-say document from the prosecution for all witnesses, as there were no individual written statements from those witnesses and the defence had only the officer's notes which contained what those witnesses had informed the investigating police officer of what they had observed and in which the officer had recorded those witnesses' observations and statements in the officer's notes. The prosecution also indicated that it had provided all disclosure to the defence and that a judicial pre-trial had been held to discuss and narrow any triable issues. The defence request for another adjournment was not granted and will-says were not required to be prepared and provided to the defence as the police summary contained what those witnesses would say. - Arraignment of the charge was then given to the defendant and the trial commenced approximately 45 minutes after the scheduled start time of 9:00 a.m. - In addition, the trial could not be completed on May 23, 2014, for the allotted half-day trial time and had to be adjourned to August 22, 2014, for the continuation of the trial. Dates had been offered in June and July of 2014, but the defence or the defendant had not been available. - The defendant's trial legal representative then raised an issue about not receiving a second officer's notes (Officer Gregoire) that had only been at the accident scene primarily to manage traffic. The second officer's notes were then provided to Richard Duncan, after which Duncan confirmed that Officer Gregoire's notes did not contain any information that had not already been disclosed to the defence and had only contained the names and addresses of the defendant and the other driver in the collision with the defendant, which had been earlier provided to the defence and had been contained in Officer Soos' notes. However, Duncan emphasized that he had still been entitled to Officer Gregoire's notes in any event.	(Oct. 16/13 to May 23/14) 220 days or 7 months and 8 days
July 15, 2014 (Tuesday)	- a second (or new) 11(b) application was then filed with the court with all transcripts for the four court appearances that had occurred before the trial had commenced on May 23, 2014.
August 22, 2014 (scheduled continuation of the trial) (Friday)	- on the scheduled date for the continuation of the trial, the defendant's trial legal representative, Richard Duncan, brought a motion to adjourn the continuation of the trial because Adilla Best was not in attendance, due to Adilla Best having a doctor's appointment on that day. Duncan also admitted that the defence did not subpoena Adilla Best to appear for the continuation of the trial scheduled for August 22, 2014. The prosecution had opposed the adjournment application made by the defence. - it was also decided that the second or new 11(b) application would be heard only after the trial had been completed as the trial had already commenced and the prosecution had already closed its case. - it was also suggested to the defendant's trial legal representative that if the defence had been planning to call the defendant then the defendant could actually testify on August 22, 2014, before receiving Adilla Best's testimony, so as not to waste valuable court time. However, the defendant's trial legal representative did not wish to use the available court time set aside for the continuation of the trial on August 22, 2014, by having the defendant give her testimony before Adilla Best would give her testimony. - the defence application for an adjournment was then granted to allow for the witness Adilla Best to attend, and the continuation of the trial was then rescheduled to be held on January 30, 2015.	(May 24/14 to Aug. 22/14) 91 days or 2 months and 30 days
January 30, 2015 (last day of the trial) (Friday)	- on the continuation of the trial on January 30, 2015, the defendant was called by the trial legal representative to testify before Adilla Best would testify, even though the continuation of the trial had been adjourned on August 22, 2014, so that Adilla Best could attend to testify before the defendant would give her testimony, if the defendant had decided to testify. - the defence's witnesses then completed their testimony and the 11(b) application was then heard and argued, and finally submissions were heard on the red light charge. - Judgment on both the 11(b) application and on the red light charge was reserved and the matter was then adjourned to May 28, 2015, for judgment.	(Aug. 23/14 to Jan. 30/15) 161 days or 5 months and 8 days
TOTAL DAYS From Aug. 15, 2012, to Jan. 30, 2015.		898 days or 29 months and 15 days

(b) Periods Under Consideration

[114] The overall length of delay between August 15, 2012, the date the Notice of Intention had been filed at the courthouse, and January 30, 2015, the last day of the trial, is 29 months and 15 days. And, since no segment of the overall length of the delay has been waived explicitly or implicitly by the defendant then this period of 29 months and 15 days passes the threshold reasonableness question, which would then require further inquiry and a consideration of all the Morin factors to determine if the defendant's right to be tried within a reasonable time has been infringed. This further inquiry is best accomplished by assessing particular periods in the defendant's proceeding and considering the reasons for the delay or adjournment related to each period. There are seven specific periods that are relevant to the inquiry:

(i) The Period From Aug. 1/12 To Aug. 15/12

[115] For this first period from August 1, 2012, to and including August 15, 2012, there are 14 days under consideration.

[116] On August 1, 2012, the defendant was involved in a collision with another motor vehicle in the intersection of Glen Erin Drive and Erin Centre Boulevard in the City of Mississauga. On the same day, she was charged with the red light offence and served with a Notice of Offence for a Part I Certificate of Offence issued by Officer Soos of the Peel Regional Police. The Notice of Offence given to the defendant had set out the out-of-court fine payment as $260 and a total payable amount of $325 (that included the set fine, court costs, and the applicable victim fine surcharge) which the defendant could choose to pay if she did not want to contest the red light charge and opt to have a trial of the charge.

[117] After receiving the red light ticket, the defendant had opted not to pay the out-of-court set fine, and through her Toronto-based paralegal firm (Traffic Ticket Solutions Law Firm), a Notice of Intention to Appear had been filed at the Mississauga Provincial Offences courthouse on August 15, 2012, 14 days after the defendant had been issued the ticket.

[118] Because the defendant had been charged under a Part I Certificate of Offence, and since there is no possibility of the defendant receiving a custodial sentence for being convicted of the red light charge, and as the defendant had the option to simply pay the out-of-court set fine in order to avoid having a trial or in having to personally or by agent make a mandatory appearance in a courtroom, the legal jeopardy on the defendant did not commence, for the purposes of the 11(b) determination, until the date the defendant had chosen to have a trial of her charge by filing a Notice of Intention to Appear at the courthouse.

[119] Therefore, the 14 days from the date of the offence to the date on which the defendant's Notice of Intention to Appear had been filed at the courthouse is not included in the calculation to determine the overall length of the delay that will be considered in the 11(b) analysis. Subtracting those 14 days from the 29 months and 29 days from August 1, 2012 to January 30, 2015, would leave 29 months and 15 days as the overall length of the delay that would be under consideration.

(ii) The Period From Aug. 16/12 To April 8/13

[120] For the second period under consideration from August 16, 2012, to and including April 8, 2013, there are 236 days or 7 months and 24 days.

[121] After the defendant's Notice of Intention had been filed on August 15, 2012, Court Administration for the Mississauga Provincial Offences courthouse had set a trial date for the defendant's charge to be held on April 8, 2013. A Notice of Trial for the April 8th trial date was then sent out to the defendant on September 12, 2012. Then, in meeting their disclosure obligation, the prosecution had faxed the disclosure documents or package to the defendant's Toronto-based paralegal firm on January 10, 2013.

(a) deduction for an intake period

[122] In R. v. Morin, at paras. 41 to 42, Sopinka J. recognized that there are inherent time requirements specific to a charge that would inevitably lead to delay. Sopinka J. also noted that the more complicated a case is, the longer it would take for counsel to prepare for trial. In addition, he accepted there are inherent time requirements that are common to all cases, such as a reasonable intake period to complete pre-trial activities such as retention of counsel, bail hearings, police and administration paperwork, and preparing disclosure:

All offences have certain inherent time requirements which inevitably lead to delay. Just as the firetruck must get to the fire, so must a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which must be evaluated. Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges.

As well as the complexity of a case, there are inherent requirements which are common to almost all cases. The respondent has described such activities as "intake requirements". Whatever one wishes to call these requirements, they consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc. All of these activities may or may not be necessary in a particular case but each takes some amount of time. As the number and complexity of these activities increase, so does the amount of delay that is reasonable. …

[123] In R. v. Hussain, [2005] O.J. No. 158 (O.C.J.), at para. 6, Casey J. held that an intake period of approximately two months for the trial of two Part I offences of "fail to stop for a red light" and "fail to surrender insurance card", could be found to be a reasonable intake period as part of the inherent time required for the case, which unlike the case at bar had been less complex, since it did not involve a collision and six potential witnesses:

I believe that in this case, the time from June 25th, 2003 until August 21st, 2003, a little less than two months, could be found to be a reasonable intake period, and as such an inherent time period required for the case. The remaining delay from August 21st, 2003 to June 9th, 2004, while at the upper end of the range, is within the guideline of 8 to 10 months set down by the Supreme Court of Canada for matters in the Provincial Court: R. v. Morin, supra, p. 28.

[124] And, as for any new charge, there is an inherent time requirement for disclosure to be prepared and provided to the defence, legal representation to be retained, and the prosecution's brief to be prepared, before all parties would be prepared to set the matter down for trial. In addition, the defendant's red light charge had been issued as a Part I Certificate of Offence which does not provide for a custodial sentence upon conviction. Furthermore, the case involved an accident in which six witnesses would be testifying at the trial. On the other hand, the documentary evidence was not voluminous nor was this matter overly complicated, except for the 11(b) application. Hence, the inherent time requirements for this type of regulatory proceeding where six witnesses would be testifying did require more time than normal for the parties to be prepared for a trial of a Part I offence. Thus, an intake period of two months, as had been found reasonable in R. v. Hussain, would not be an unreasonable intake period attributed as inherent time for the defendant's trial of the red light charge.

(iii) The Period From April 9/13 To Sept. 13/13

[125] For this third period under consideration, from and including April 9, 2013, to and including September 13, 2013, there are 158 days or 5 months and 5 days.

[126] This is also the period which is the most controversial and contested between the parties. For this third period, the defence submits the delay should fall at the feet of the prosecution, since the defence had good grounds in asking for an adjournment of the trial scheduled for April 8, 2013, as there had been a disclosure issue related to the illegibility of some parts of the officer's notes and that a witness, Adilla Best, who could provide evidence for the defence had not been in attendance to testify, and that the defence would require Best as a witness in order to make full answer and defence.

[127] In respect to the illegible notes, the defence had sought the adjournment in order that they could order a typed version of the notes from the officer, as some parts of the officer's notes could not be read. However, the prosecutor at that April 8th trial date had commented that the prosecution had faxed the disclosure package to the defendant's Toronto-based paralegal firm on January 10, 2013, but the prosecution had not received a further disclosure request for type-written notes, and that the defence has had from January 10th to April 8th to make such a request, but only informs the prosecution on the trial date that some parts of the officer's notes are not legible. Richard Duncan, the defendant's trial legal representative, then informed the court that because the disclosure had been faxed to the defendant's Toronto-based paralegal firm, who are the agents of record, and that since he does their trial work at that courthouse for them, he had only received those disclosure documents a few days earlier from the Toronto paralegal firm, Specifically, Duncan said he had received the disclosure from them just that Friday, which had preceded the Monday, April 8, 2013, trial date, and as such, he did not have enough time to instruct the Toronto paralegal firm to request typed-written notes.

[128] The presiding justice then granted the defendant's request for the adjournment and the trial was then rescheduled to be heard on July 29, 2013 (the second scheduled trial date). In addition, the prosecution had been ready to proceed on April 8, 2013, with the trial, as several civilian witnesses (Mike Millar and Nicklos Gardanis) for the prosecution had been present in the courthouse and were ready to testify. Moreover, Adilla Best had been subpoenaed by the investigating police officer to appear for the April 8th trial, but the investigating officer had only learned a few days before the April 8th trial date, when Best had been called by the investigating officer, that Best had not actually received the subpoena and that the officer's last moment notice about the April 8th trial date had not been of sufficient time for Best to get time off from work to appear in court to testify.

[129] After the April 8th trial had been adjourned, the defendant's Toronto-based paralegal firm had learned on April 18, 2013, that Adilla Best, the potential defence witness, could not attend for the trial rescheduled for July 29th, due to being out of the province on vacation. The defendant's trial legal representative then brought a motion on May 13, 2013, to adjourn the scheduled trial date, which is nearly a month after the defence had learned about Adilla Best not being available for the July 29th trial date. The motion for adjournment was then granted and the trial was then rescheduled to be heard on September 13, 2013 (the third scheduled trial date).

[130] In addition, the defence had also raised additional grounds during their 11(b) application argued on January 30, 2015, on why the period that followed the defence's application for an adjournment of the April 8th trial should not be attributed to the defence, but attributed to the prosecution.

[131] For these addition grounds, the defence contends that they had to seek an adjournment on April 8, 2013, as Adilla Best, a witness that could give favourable evidence for the defence, had not been present in the courthouse to testify, and the defence were surprised when informed that morning that the prosecution had not been intending to call Adilla Best, since the defence had expected or believed that the prosecution would be calling Best as a witness, and as such, required the adjournment in order to have Best attend the trial to testify for the defence on the next occasion. Moreover, the defence submits that the prosecution in their disclosure obligations had not made the defence aware of, nor had the prosecution given a list of which witnesses that they had been intending to call, nor had they informed the defence that the prosecution had not been intending to call Adilla Best as a witness. The defence also contends that the prosecution had an obligation to provide them with a list of the witnesses they had been intending to call, and as they failed to do so, then the delay resulting from the adjournment of the April 8th trial in order to have Adilla Best attend to testify for the defence should be the responsibility of the prosecution.

[132] Furthermore, the defence also contends that the prosecution had not provided to the defence prior to the April 8th trial date, Adilla Best's statement that Best had given to the investigating police officer.

[133] Moreover, in answer to why the defence did not bring a proper adjournment application earlier if there had been a disclosure issue, the defendant's trial legal representative, Richard Duncan, relied on the submission that the disclosure package had been faxed to Traffic Ticket Solutions in Toronto, which is the agent of record, but that Duncan works out of this jurisdiction for the Toronto-based paralegal firm and had only received the disclosure documents from the Toronto-based paralegal firm a couple of days ago, which had been on the Friday just before the Monday April 8, 2013, trial date. And, as such, Duncan submitted that there had not been enough time to file a proper Notice of Motion to adjourn the trial. In addition, Duncan submitted that he was retained by the Toronto firm to conduct the trial only and that he was not responsible for obtaining transcripts or for obtaining the disclosure documents from the prosecution, but that it had been the Toronto-based paralegal firm's responsibility for those tasks.

[134] In their rebuttal of the defendant's contention that there had been justifiable grounds for the defence's adjournment of the April 8th trial date, the prosecution submits that the prosecution had faxed the disclosure package to the defendant's Toronto-based paralegal firm on January 10, 2013, but did not receive a further disclosure request in writing in respect to obtaining typed notes or a request for outstanding or missing disclosure, nor did the defendant's Toronto-based paralegal firm do anything between January 10, 2013 and April 8, 2013, to notify the prosecution that the officer's notes were not legible or that there had been any outstanding or missing disclosure. In addition, the prosecution contends that the delay in respect to the adjournment of the April 8th trial should not be attributed to the prosecution but to the defence, since there had been a lack of coordination between the Toronto-based paralegal firm and Richard Duncan, who had been retained to conduct the defendant's trial, in forwarding the disclosure package to Duncan promptly and in raising any disclosure issues. Moreover, the prosecution submits that there had been sufficient time from when the prosecution had faxed the disclosure package to the Toronto-based paralegal firm on January 10, 2013, to April 8th to resolve any disclosure issues or to request a typed-version of the officer's notes, instead of waiting until the actual trial date to raise the disclosure issue and contend that the officer's notes were illegible.

[135] In addition, the prosecution had submitted that they had been ready to proceed with the trial on April 8th, that there had been civilian witnesses present to testify, and that any issues with illegible notes and any other issue with disclosure could have been dealt with earlier, or that a written request could have been made to the prosecution much earlier, instead of waiting until the trial date to raise those issues.

[136] Moreover, in reply to the contention that the prosecution had to provide the defence with a prosecution witness list or to inform the defence which witnesses they had been planning to actually call, the prosecution is adamant that they do not have to provide them with the prosecution's witness list or disclose to them which of the potential witnesses that they would be actually calling, since the calling of witnesses, or which witness they wish to call, is at the discretion of the prosecution, and that the defence had already been provided in the disclosure documents a list of all potential witnesses, so the defence would not be surprised by who the prosecution would call as a witness.

(a) Is There A "Duty" On The Prosecution To Call All Witnesses That Had Been Present At The Intersection At The Time Of The Accident?

[137] In regards to Adilla Best's absence for the April 8th trial, Best had been actually issued a subpoena (or a witness summons) to appear for the April 8, 2013, trial date, but it appears that Best did not receive the subpoena and because the investigating police officer did not contact Best until a few days before April 8th, at which time the officer learned that Best did not receive the subpoena about the upcoming trial date and could not get time off from work to appear for the scheduled trial due to the short notice given by the officer.

[138] And, with respect to the obligation or duty of the Crown to call witnesses, the Supreme Court of Canada had considered that question in R. v. Cook, [1997] S.C.J. No. 22, and at paras. 36 and 37, had held that although the prosecution's discretion whether to call a witness is close to being absolute, it may be subject to review by the court if an accused establishes that the prosecution had an oblique motive for not calling a particular witness. However, the Court went on to explain that this motive must relate to the failure to disclose or to an abuse of process. Moreover, the Court had reviewed the authorities on the issue of the requirement to call all witnesses that are essential to the prosecution's narrative and had concluded that the requirement to call witnesses would only relate to the prosecution's burden of proof and not to a duty or a rule of law. And, in order to establish the essential elements of an offence, the Court had also reckoned that the prosecution should call all witnesses essential to the narrative, but where the prosecution feels this can be done without a particular material witness, then the prosecution does not have to call that witness. On the other hand, the Court noted that the failure of the prosecution to call a particular witness will generally not make the trial unfair. The Court also acknowledged that the defence would then have to call this uncalled witness as their own witness, and as a consequence, would generally lose the ability to cross-examine their own witness. However, the Court also held that the contemporaneous cross‑examination of a witness is not necessary to guarantee a fair trial and that the prosecution's disclosure obligations that are set out in R. v. Stinchcombe, [1991] S.C.J. No. 83 (S.C.C.), should prevent any ambush of the defence by the prosecution failing to call a particular witness:

I agree with this analysis. In my view, any rationale compelling the Crown to call witnesses based on the need to bring all material facts forward was extinguished by developments in the law of disclosure. It is simply no longer correct to suggest that the defence will ever be "ambushed" by the Crown's failure to call a material witness. If, for example, the Crown becomes aware that a given witness has made a statement inconsistent with his original one, it is perfectly proper not to call the witness to testify, especially where the Crown feels that the witness is likely to mislead the court: R. v. Gallagher (D.N.) (1994), 48 B.C.A.C. 139; People v. Andre W., 404 N.Y.S.2d 578 (C.A. 1978). The defence will not be prejudiced by this decision, as the Crown will still have to turn over the statement to the defence, and the defence will have the option to call the witness.

In my view, there is simply no merit to the suggestion that the accused is "ambushed" by the fact that a given witness is not called. Any existing unfairness in this regard can be resolved through disclosure and existing remedies, coupled with the accused's ability to call the witness: see Alan Mewett, Witnesses (1995), at p. 2-12; R. v. V. (J.) (1994), 91 C.C.C. (3d) 284 (Que. C.A.); R. v. Franks (1991), 67 C.C.C. (3d) 280 (B.C.C.A.).

[139] Moreover, there has been no evidence presented which would suggest that the prosecution had an oblique motive for not calling Adilla Best as a prosecution witness, and since the prosecution has the discretion to call which witnesses they need to prove the elements of the offence, the prosecution did not have to call Adilla Best as a witness, just because she had been present at the intersection of Erin Centre Boulevard and Glen Erin Drive when the collision involving the defendant had occurred.

(b) Does The Prosecution Have To Inform The Defence Which Witnesses That It Is Planning To Call?

[140] The issue of whether there is a Crown obligation to provide the defence with a list of which witnesses the Crown would be calling had been considered in R. v. Fiddler, 2012 ONSC 2539, [2012] O.J. No. 2001 (S.C.J.O.), at paras. 47 and 48, in which Fregeau J. had referred to R. v. Pinkus, [1999] O.J. 5464 (S.C.J.O.), and then held that there is no authority that requires the Crown to disclose to the defence a list of which of their potential witnesses they would intend to call at trial, but that it would certainly be preferable if the prosecution did so for efficiency and case management and to minimize potential delays:

There is no authority requiring the Crown to disclose to the defence a list of which of its potential witnesses it intends to call at trial. This issue was dealt with in a clear and concise fashion in R. v. Pinkus [1999] O.J. 5464, at paragraphs 8 and 9:

While the Crown is not under a legal obligation to inform the defence in advance its intention to call particular witnesses, it is certainly preferable that they do so. This would contribute to efficient and effective case management and minimize potential delays.

[141] Moreover, in R. v. Pinkus, [1999] O.J. No. 5464 (S.C.J.O.), at paras. 7 to 11, McKinnon J. had held that the Crown is not bound by law to inform the defence in advance of its intention to call particular witnesses or generally inform the defence of the anticipated list and time frames of witnesses, but had also suggested that it would be good practice to do so in order to ensure respect for the jury and the integrity of the trial process, as well as its orderliness and fairness:

The Crown asserts that it does not know whether or not Mr. McCann will be called as a witness, saying that it is a decision which will be made following the cross-examination of Mr. Hadley and as the trial evolves. Defence argues that it is deprived of its fundamental right to make full answer in defence in that the cross-examination of Mr. Hadley will be conducted somewhat in the dark, because defence is unaware of whether or not Mr. McCann will be a witness.

The "information" which the defence seeks is, in my view, not the kind of information which is subject to an order for disclosure. What the defence claims to be entitled to is the Crown "plan" for the presentation of its case. This, undoubtedly, is information in the possession of the Crown. It is, however, not subject to disclosure for the very reason that the Crown plan is something which is in its own discretion, which is unfettered, and properly so, absent bad faith or oblique motive. See Cook (1997), 114 C.C.C. (3d) 481. (S.C.C.).

The law relating to Crown disclosure should not be confused with the law relating to Crown discretion. The decision whether to call a witness is solely within the discretion of the Crown. The decision whether to call a witness may change, given the dynamics of the trial process. Discretion is therefore an evolving concept, just as the trial itself. Discretion cannot be interfered with by the Court. For the Court to order the Crown to inform defence as to whether a particular witness will be called would effectively trump Crown discretion. One cannot be said to have discretion if one is ordered to disclose how discretion will be exercised.

In my view, the reasons of the Supreme Court of Canada in Cook (supra) fully dispose of the argument raised by defence counsel and no order shall be made requiring the Crown to disclose whether or not Mr. McCann will be called as a witness.

I have stated during the course of the trial that in order to ensure respect for the jury and the integrity of the trial process, its orderliness and its fairness, it would be helpful, indeed advisable, for the Crown to inform the defence in advance of its intention to call particular witnesses, and generally inform the defence of the anticipated list and time frames of witnesses. They are not, in law, bound to do so. It is merely good practice. The failure to do so would inevitably lead to numerous adjournments being sought so that defence counsel might properly prepare to defend the case from hour to hour and day to day. This is not in the best interests of the due administration of justice.

[142] Accordingly, there is no legal obligation or requirement that the prosecution has to provide the defence with a list of witnesses that it intends to call for trial as part of its disclosure obligation mandated by Stinchcombe. Therefore, calling a particular witness falls within prosecution discretion and not as a requirement under its disclosure obligation.

[143] In addition, since there is no legal obligation to provide a list of witnesses then there is also no similar obligation to reasonably notify the defence that a particular witness would be called as a witness.

[144] Furthermore, the evidence indicates that the defence had been initially unable to contact Adilla Best, even though it had been the defendant who had first provided Adilla Best's name and telephone number to Cst. Soos, since Adilla Best had left the intersection before Cst. Soos had arrived on August 1, 2012. Best's contact information was subsequently provided to the defence at or shortly after the first scheduled trial date of April 8, 2013. Again, there is no evidence that the defence had contacted the prosecution about Adilla Best's contact information during the three months after the disclosure package had been faxed to the defendant's Toronto-based paralegal firm.

[145] However, Adilla Best had not been the only witness subpoenaed to appear for the trial scheduled for April 8th. The investigating police officer had obtained subpoenas (or witness summonses) for all witnesses that had been present at the accident scene on the day of the accident. Ergo, this particular ground for an adjournment based on Adilla Best not being present was not reasonable, since the trial could have commenced without this witness, since there were other civilian witnesses and the investigating officer present that could have testified and since there had been six witnesses in total who had actually testified in the defendant's trial that had taken two days of trial time to complete. Mike Millar and Nicklos Gardanis, two of the civilian witnesses that had been subpoenaed were present in the courtroom on April 8, 2013, and could have given their testimony on April 8th.

[146] Based on these circumstances, I do not find that the prosecution acted improperly or in bad faith in their dealings with the defence, as it concerns providing disclosure or information on Adilla Best, or in not informing the defence that the prosecution would not be calling Best as a witness, nor is the prosecution's failure to provide a witness list or inform the defence of which witnesses they were intending to call, a ground on which the delay caused by the defence request to adjourn the April 8th trial would be attributed to the prosecution.

(c) The Investigating Officer's Illegible Notes

[147] And, in respect to the illegible notes reason or ground for the defence's justification in requesting an adjournment of the April 8th trial, in which the defendant's trial legal representative had needed some parts of the officer's notes to be typed because of their illegibility, the defendant's legal representatives are required to be proactive in obtaining or resolving disclosure issues and not wait "a couple of days" before the actual trial date of April 8th to decide that the disclosure faxed out by the prosecution on January 10, 2013, contained illegible notes, especially when there had been three months from the date the disclosure had been faxed to the defendant's Toronto-based paralegal firm to the first scheduled trial date of April 8, 2013. And, although the trial legal representative for the defendant, Richard Duncan, had revealed to the court that the defendant's Toronto-based paralegal firm had not forwarded or provided the disclosure documents to Duncan until the Friday before the trial scheduled for Monday, April 8, 2013, the Toronto-based paralegal firm should have provided the disclosure package to Duncan much earlier or should have properly reviewed the disclosure package and made a written request for any typed notes, if such had been needed, or make a written request for any missing or outstanding disclosure during the three months that the Toronto-based paralegal firm had the disclosure package.

[148] Furthermore, with respect to the defence seeking an adjournment to have parts of the officer's notes that were illegible be typed, it had been decided in R. v. Bidyk, [2003] S.J. No. 558, in which the Saskatchewan Provincial Court had held, at para. 27, that the accused is entitled to have typed notes of illegible notes provided to the accused as a matter of disclosure prior to the trial:

I find that the notes are not sufficiently legible so as to compare them with the officer's report included in the disclosure. Nor are they sufficiently legible to understand their content. The Crown conveyed the request for a typed copy to the Officer without protest or comment. Indeed the Crown has not refused to provide the notes; rather the Officer has refused and no reason was given for the refusal. There is no dispute but that the Defence is entitled to an officer's notes. That being the case it is reasonable that where the notes are illegible that the defence receive a typed or legible copy of these notes. As counsel is entitled to an officer's notes as a matter of disclosure prior to trial, it follows that the Defence cannot be required to wait until the officer is on the witness stand before the notes are deciphered. I do not consider a request for a typed copy of the officer's notes to be onerous provided it is not insisted upon at the outset but rather is requested only once Counsel has received a copy and has first attempted to read the notes without success. This decision addresses police officer's notes, only. It will be up to another court on another occasion to decide whether transcription would be required of other documents included in crown disclosure. Clearly the arresting officer has a significant role as both witness and investigator.

[149] However, in R. v. Dixon, [1998] S.C.R. 244, 122 C.C.C. (3d) 1, the Supreme Court confirmed the responsibilities that defence counsel or defence legal representatives have in respect to obtaining disclosure from the prosecution, in that they are obligated to exercise diligence in actively seeking and pursuing disclosure and must not remain passive:

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. 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. This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996), 106 C.C.C. (3d) 365 (aff'd, [1996] 3 S.C.R. 1126), at p. 374."

[150] Ergo, by waiting until the last moment to ensure that the officer's notes provided in the prosecution's disclosure packet are legible is not indicative of the defendant's Toronto-based paralegal firm exercising diligence with resolving any disclosure issues or in seeking and obtaining any outstanding or missing disclosure during those three months after the disclosure had been faxed to them between January 10, 2013 and April 8, 2013.

[151] Furthermore, as a consequence of the defendant's Toronto-based paralegal firm not being proactive or diligent in requesting a typed-version of the officer's illegible notes or in pursuing or resolving any disclosure issues during the three months that they had the disclosure package, or in immediately forwarding the disclosure documents to Richard Duncan, who they had retained to conduct the trial, then the delay caused by the defence's request to adjourn the April 8th trial date for the period from April 9, 2013, to September 13, 2013, to obtain the typed notes is attributed to defence responsibility and not to prosecution responsibility.

(d) Contention That Adilla Best's Statement Had Not Been Provided to the Defence

[152] In their arguments made during the 11(b) application, the defence had also submitted that the defence had not received Adilla Best's statement, as another ground to justify the defence's request to adjourn the April 8th trial, and that the delay resulting from the adjournment should be attributed to the prosecution in not providing Adilla Best's statement. However, the defence had not been explicit whether the defence had meant that they had not received Adilla Best's written statement, which may or may not exist, or whether the defence had not been provided with Adilla Best's oral statement given to Cst. Soos, which may or may not have been obtained and recorded in Cst. Soos' notes.

[153] Furthermore, Adilla Best had been present at the intersection when the collision involving the defendant had occurred, but did not remain at the intersection and had left the area before Cst. Soos had arrived at the intersection. Best had to leave to go to work, but had left her name and telephone number with the defendant, who then provided it to Cst. Soos. However, Cst. Soos had decided to charge the defendant with the red light offence before he could interview Adilla Best. Cst. Soos had also testified that he did not reach Adilla Best by telephone until sometime after August 1, 2012. Best had testified that she recalled speaking to a police officer on the telephone closer to the date of the accident and before a month had passed from the date of the accident, and had also recalled that she had provided the police officer with what she had observed at the intersection at the time of the collision involving the defendant. In addition, Cst. Soos testified that after he had the opportunity to speak with Adilla Best it did not cause Cst. Soos to change his belief about charging the defendant with the red light offence.

[154] However, in respect to defence counsel's obligation in obtaining disclosure from the prosecution that had not been disclosed, the Supreme Court in R. v. Stinchcombe at para. 23, 24, 28-33, has held that legal counsel for the defence has an obligation to act properly as officers of the court and be proactive in resolving and obtaining specific items of disclosure not already disclosed by the prosecution, and cannot simply sit on their hands and do nothing. This obligation applies to both legal counsel and to licensed paralegals:

The trial judge may also review the Crown's exercise of discretion as to relevance and interference with the investigation to ensure that the right to make full answer and defence is not violated. I am confident that disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose all relevant information. The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high. Given this fact, and the obligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention of the trial judge. When they do arise, the trial judge must resolve them. This may require not only submissions but the inspection of statements and other documents and indeed, in some cases, viva voce evidence. A voir dire will frequently be the appropriate procedure in which to deal with these matters.

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

With respect to timing, I agree with the recommendation of the Law Reform Commission of Canada in both of its reports that initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. These are crucial steps which the accused must take which affect his or her rights in a fundamental way. It will be of great assistance to the accused to know what are the strengths and weaknesses of the Crown's case before committing on these issues. As I have pointed out above, the system will also profit from early disclosure as it will foster the resolution of many charges without trial, through increased numbers of withdrawals and pleas of guilty. The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information. In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done. At this stage, the Crown's brief will often not be complete and disclosure will be limited by this fact. Nevertheless, the obligation to disclose is a continuing one and disclosure must be completed when additional information is received.

With respect to what should be disclosed, the general principle to which I have referred is that all relevant information must be disclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence. The attempt to make this distinction in connection with the confession rule proved to be unworkable and was eventually discarded by this Court. See Piché v. The Queen, [1971] S.C.R. 23, at p. 36; Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 645. To re-introduce the distinction here would lead to interminable controversy at trial that should be avoided. The Crown must, therefore, disclose relevant material whether it is inculpatory or exculpatory.

A special problem arises in respect to witness statements and is specifically raised in this case. There is virtually no disagreement that statements in the possession of the Crown obtained from witnesses it proposes to call should be produced. In some cases the statement will simply be recorded in notes taken by an investigator, usually a police officer. The notes or copies should be produced. If notes do not exist then a "will say" statement, summarizing the anticipated evidence of the witness, should be produced based on the information in the Crown's possession. A more difficult issue is posed with respect to witnesses and other persons whom the Crown does not propose to call. …

This Court, in R. v. C. (M.H.), supra, dealt with the failure to disclose either the identity or statement of a person who provided relevant information to the police but who was not called as a witness. McLachlin J., speaking for the Court, indicated that failure to disclose in such cases could impair the fairness of the trial.

I am of the opinion that, subject to the discretion to which I have referred above, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced, and, if there are no notes, then in addition to the name, address and occupation of the witness, all information in the possession of the prosecution relating to any relevant evidence that the person could give should be supplied. I do not find the comments of the Commission in its 1984 Report persuasive. If the information is of no use then presumably it is irrelevant and will be excluded in the exercise of the discretion of the Crown. If the information is of some use then it is relevant and the determination as to whether it is sufficiently useful to put into evidence should be made by the defence and not the prosecutor. Moreover, I do not understand the Commission's statement that "[t]heir statements are not evidence". That is true of all witness statements. They themselves are not evidence but are produced not because they will be put in evidence in that form but will enable the evidence to be called viva voce. That prosecutors are reluctant to disclose statements because use of them in cross-examination is thereby rendered less effective is understandable. That is an objection to all forms of discovery and disclosure. Tactical advantage must be sacrificed in the interests of fairness and the ascertainment of the true facts of the case.

[155] And, in respect to the prosecution's obligation to disclose witness statements, the Supreme Court had indicated in R. v. Stinchcombe that if the police had obtained a written statement from a witness that the prosecution proposes to call or does not propose to call then it must be provided to the defence, but if a written statement made by the witness does not exist then the witness's statement given to the police officer and which had been recorded in the police officer's notes would have to be disclosed to the defence. In addition, if the prosecution is intending to call a particular witness, but there is no written statement made by the witness nor a statement obtained from that witness by a police officer and recorded in that officer's notes, then a will-say for that witness summarizing the anticipated evidence of the witness based on the information in the prosecution's possession will have to be provided to the defence. However, if the prosecution is not intending to call a particular person as a witness and there are no statements in existence nor written statements made by that person, or a witness statement obtained by a police officer and recorded in the that officer's notes for that person, then the prosecution has to provide that person's name, address, and occupation, as well as all information in the possession of the prosecution relating to any relevant evidence that the person could give.

[156] Moreover, the defence would have been aware of the existence of Adilla Best, as a potential defence witness, since Best had talked to the defendant shortly after the collision, and then before Best had left the area, Best had provided her name and telephone number to the defendant. And, that it had been the defendant who had provided the name of Adilla Best and her telephone number to the investigating police officer, as a witness or person who had been at the intersection when the collision had occurred. As such, if the defendant's Toronto-based paralegal firm had properly reviewed the disclosure documents when they had been faxed to them by the prosecution on January 10, 2013, or had provided the disclosure documents to Richard Duncan, who had been retained to conduct the trial, immediately after receiving the disclosure package on January 10th, then the issue with the illegible notes and the issue with the non-disclosed statement of Adilla Best given to Cst. Soos, if it ever existed, could have been identified and provided, or resolved earlier, and would not have required an adjournment of the April 8th trial nor have wasted the first scheduled trial date.

[157] Furthermore, there had been more than enough time during this three-month period between the prosecution faxing the disclosure documents to the defendant's Toronto-based paralegal firm on January 10, 2013, to the scheduled trial date of April 8, 2013, for the defendant's legal representatives to formally make a request for and to obtain from the prosecution a typed version of the illegible parts of the officer's notes and Adilla Best's statement, if it ever existed, or all the information in the prosecution's possession related to any relevant evidence that Adilla Best could give, if Cst. Soos had not recorded in his notes what his telephone conversation with Adilla Best had revealed, which would have then allowed the defence to be ready to proceed with the trial on April 8, 2013.

[158] On the other hand, there is no evidence that the defendant's Toronto-based paralegal firm had made any written requests to the prosecution after the disclosure documents had been faxed to them on January 10, 2013, for additional or outstanding disclosure; or to have the illegible parts of the officer's notes be provided in a typed form; or to provide Adilla Best's written statement, if it ever existed, or, if it had not already been provided to the defence, Adilla Best's statement that had been recorded in Cst. Soos' notes of a telephone conversation that Cst. Soos had with Adilla Best about what she had observed at the intersection in respect to the defendant's accident.

[159] Therefore, the defence's lack of effort and diligence in making a written request for Adilla Best's written statement, if it ever existed, or to request a copy of Cst. Soos' notes that contained a record of Adilla Best's statement, or in properly resolving any disclosure issues in a timely fashion with the prosecution with respect to the availability or disclosure of Adilla Best's statement during the three months after the defendant's Toronto-based paralegal firm had been faxed the disclosure package, and for which the defence relies on as their justification for requesting an adjournment of the April 8th trial, would be the principal reason for the delay caused by that adjournment, and therefore, should not be attributed to the prosecution, but attributed to the defence.

(e) Adilla Best Had Not Been Present On The First Scheduled Trial Date of April 8, 2013

[160] Moreover, in regards to courtroom utilization and efficiency, instead of the defence simply requesting an adjournment because the potential witness, Adilla Best, did not appear on the first scheduled date for the trial and then the defence learning in any event that the prosecution was not going to call Best as a prosecution witness, the trial could have still commenced with Mike Millar's and Nicklos Gardanis' testimony, the prosecution witnesses who were already present in the court house. And, then when those prosecution witnesses had completed their testimony, the defence could have then sought an adjournment at that time so that Adilla Best could be subpoenaed to attend for the continuation of the trial on another day.

[161] As such, the defence's grounds that an adjournment of the trial on April 8th had been required in order that Adilla Best could attend was not reasonable in the situation where court time is at a premium and that there would be six witnesses that would be testifying in the defendant's trial that would take nearly a full day or one and a half days of court time to complete the testimony. Accordingly, the delay caused by the defendant's request for an adjournment of the April 8th trial date based on the absence of Adilla Best on April 8th and learning that the prosecution would not call her as a witness, for the purposes of assessing the reason for the delay in the 11(b) determination is not a valid ground to attribute the delay to the prosecution. On the other hand, the trial could have proceeded on April 8, 2013, without Adilla Best, and without causing an unfair trial to the defendant, as there were other prosecution witnesses that could have testified, and since the defence in any event does not normally proceed with calling their witnesses and evidence, if needed, until after the Crown has closed its case.

[162] And, coupled with the defence's lack of diligence or effort in resolving any disclosure issues with the prosecution during the three months after the defence had been faxed the disclosure package, and the lack of coordination between the defendant's Toronto-based paralegal firm and the trial legal representative, the delay caused by the defence application to adjourn the April 8th trial had been the result of the defendant's unreasonable and unjustified actions. Accordingly, the delay from April 9, 2013 to September 13, 2013, is not attributable to the prosecution, but attributable to the defence.

(f) The Contents of Cst. Gregoire's Notes Were Only Provided To The Defence On May 23, 2014.

[163] In respect to the issue with Cst. Gregoire notes, who had only been at the defendant's accident scene to manage traffic, Cst. Gregoire's notes had not been provided to the defence until May 23, 2014, the fourth scheduled trial date. However, the late disclosure of Cst. Gregoire's notes has no bearing on the determination of unreasonable delay in the 11(b) calculus. Moreover, Cst. Gregoire's notes had only contained the name and address of the defendant and the driver of the other motor vehicle that had been involved in the collision with the defendant, which information had already been disclosed to the defence within Cst. Soos' notes. Furthermore, Cst. Soos had testified that he had given or forwarded a copy of Cst. Gregoire's notes to the prosecutor's office.

[164] As such, the information in Cst. Gregoire's notes had already been disclosed to the defence and there had been no intentional or deliberate act by the prosecution to prevent the defence from having such information. Nor did the information in Cst. Gregoire's notes prevent the defence from being able to make full answer and defence or in making the trial unfair for the defendant.

[165] Again, there had been three months between January 10, 2013, when the prosecution had faxed a disclosure package to the defendant's Toronto-based paralegal firm and the first scheduled trial date of April 8, 2013, for the defence to resolve any disclosure issues with the prosecution or request and obtain any missing or outstanding disclosure, such as Cst. Gregoire's notes and not wait until the trial had already commenced before requesting Cst. Gregoire's notes. Consequently, no period of delay will be attributed to the prosecution in not providing or disclosing Cst. Gregoire's notes to the defence until May 23, 2014.

(g) The Lack Of Coordination Between The Toronto-Based Paralegal Firm And The Trial Legal Representative

[166] The prosecution also contends that the lack of coordination between the Toronto-based paralegal firm and Richard Duncan, the trial legal representative retained by the Toronto-based paralegal firm to conduct the trial, in forwarding the disclosure package, which had been faxed to the defendant's Toronto-based paralegal firm on January 10, 2013, to Duncan in a timely fashion before the April 8, 2013, trial date, had been one of the reasons why the trial could not commence on April 8, 2013.

[167] Moreover, this lack of coordination between the two legal representatives had also been evident from other instances, such as the circumstance that two of the transcripts for prior court appearances required for the 11(b) application had not been ordered in a timely fashion; Adilla Best not being subpoenaed by the defence to appear for the continuation of the trial on August 22, 2014; the defence not contacting Adilla Best in a timely fashion about her availability to testify at the second scheduled trial date of July 29, 2013; and in not resolving any disclosure issues with the prosecution in a timely fashion before the first scheduled trial date of April 8, 2013.

[168] Accordingly, much of the delay in this proceeding had been caused by this lack of coordination between the Toronto-based paralegal firm and Richard Duncan, the trial legal representative, based on their divided responsibilities in the defendant's case. Moreover, Richard Duncan's submissions that he was only responsible for particular aspects of the defendant's case is not a valid excuse for the delay caused by the Toronto-based paralegal firm in not forwarding the disclosure package to Duncan in a timely fashion before the first scheduled trial date of April 8, 2013; in ensuring that any disclosure issues are resolved with the prosecution in a timely manner; in not subpoenaing Adilla Best for the continuation of the trial on August 22, 2014; and in not ordering all the transcripts for previous court appearances in a timely fashion for the 11(b) application. Furthermore, once Richard Duncan had agreed to act and represent the defendant on behalf of another licensed paralegal, he also inherited the same ethical obligations and responsibilities towards the defendant as the defendant's Toronto-based paralegal firm had with the defendant, and therefore had also been responsible to ensure disclosure had been complete, that all transcripts had been ordered and picked up in a timely fashion, and that defence witnesses had been subpoenaed to ensure their attendance at the trial.

[169] Ergo, even when there had been a division of labour between the defendant's Toronto-based paralegal firm and Richard Duncan, the defendant's trial legal representative, both licensed paralegals had the same obligation and duty to act competently, responsibly, diligently, and in a timely fashion and without undue expense in the representation of the defendant. In R. v. Bilinski, 2013 ONSC 2824, [2013] O.J. No. 2984 (S.C.J.O.), a case dealing with the ineffective representation of a licensed paralegal as the ground for an appeal, Durno J. after reviewing Libman J.'s decision in Hill v. City of Toronto, [2007] O.J. No. 2232 (O.C.J.) and specific sections of the Paralegal Rules of Conduct, at paras. 51 and 52, held at paras. 61 to 63, that a licensed paralegal is required and obligated to perform any service undertaken on a client's behalf to the standard of a competent paralegal and that the client is entitled to the effective assistance of a competent paralegal practitioner:

In 2007, the LSUC commenced regulating paralegals. In doing so, the LSUC enacted the Paralegal Rules of Conduct. Rule 3.01 provides that a paralegal shall perform any service undertaken on a client's behalf to the standard of a competent paralegal. The paralegal is not to undertake any task without being competent to handle it or being able to become competent without undue delay or expense to the client. If the paralegal discovers that he or she lacks the competence to complete the task, the paralegal shall either decline to act or obtain the client's consent to retain, consult or collaborate with another licensee who is competent and licensed to perform that task.

Rule 3.01(4) defines a competent paralegal as one who has and applies the relevant skills, attributes, and values appropriate to each matter undertaken on behalf of a client. This includes knowing general legal principles and procedures and substantive law and procedures for the legal services that the paralegal provides; in addition, implementing, as each matter requires, the chosen course of action through the application of appropriate skills, including legal research, and the application of the law to the relevant facts. …

… the LSUC's enactment of the Paralegal Rules of Conduct, now providing for standards of competence for paralegals, meant that a defendant was entitled to the effective assistance of a competent paralegal practitioner.

Libman J. accepted that Romanowicz precluded grafting the competent lawyer standard onto paralegals, as education and professional training requirements between the two groups remain distinct, notwithstanding the similar ethical obligations.

Because the lack of paralegal regulations was one of the reasons the Court of Appeal found there was no right to effective assistance from paralegals, His Honour found the new rules were a significant development supporting the recognition of a new standard of competence for paralegals. The standard would be less than expected of counsel but one that entitles the defendant to effective assistance commensurate with the training and licensing requirements that govern this new class of paralegal practitioner.

[170] Moreover, it is also evident that this division of labour between the Toronto-based paralegal firm and Richard Duncan, the trial legal representative, had also added to the lack of coordination between them, which ultimately led to transcripts not being ordered in a timely fashion; transcripts not being picked up in a timely fashion; to the disclosure package not being forwarded to the trial legal representative promptly before the commencement of the trial scheduled for April 8, 2013; to the failure to subpoena Adilla Best for the continuation of the trial scheduled on August 22, 2014, so that she scheduled a doctor's appointment for that day; as well as to not resolving any disclosure issues with the prosecution in a timely fashion. As such, this lack of coordination has contributed to the delay in this proceeding, especially in respect to the adjournment of the scheduled trial dates for April 8, 2013 and August 22, 2014.

(h) The May 13, 2013, pre-trial motion to adjourn the second scheduled trial date of July 29, 2013, due to a potential defence witness being unavailable

[171] Although on April 8, 2013, the defence motion to adjourn the trial was granted and the trial was scheduled for July 29, 2013, the defendant's trial legal representative, Richard Duncan, had been asked by the presiding justice if Adilla Best, the missing defence witness would be available on July 29, 2013. Duncan had responded that he had not contacted Best about her availability.

[172] Unfortunately, Adilla Best had not been available for the July 29th trial date. Consequently, the defence brought an application to vacate the July 29, 2013, trial date, for the ground that the defence witness, Adilla Best, was going to be on holidays and out of the province on July 29, 2013. The prosecution did not object to the adjournment of the second scheduled trial date and the trial was then rescheduled to September 13, 2013, which would delay the trial commencing by a further two and a half months.

[173] However, the defendant's Toronto-based paralegal firm had learned about Adilla Best being unavailable for the July 29, 2013, scheduled trial date on April 18, 2013, but did not file the Notice of Motion to adjourn the July 29th trial date with the court until May 7, 2013, for the adjournment application to be heard on May 13, 2013. Accordingly, the defence had not arranged to have the hearing of the motion to adjourn the July 29th trial date until a month after the defence had learned about the unavailability of Adilla Best for the July 29th trial date, which possibly led to rescheduling the trial to September 13, 2013 (the third scheduled trial date), instead of an earlier date.

[174] Moreover, in the motion argued on May 13, 2013, the defence did not raise any disclosure issues with the motion justice, which needed to be resolved between them and the prosecution.

[175] Furthermore, the delay caused by adjourning the second scheduled trial date of July 29, 2013, had been from the defence request to further adjourn the trial date, which still could have proceeded on July 29, 2013, since Adilla Best's absence on that day would not have caused an unfair trial to the defendant, considering that the prosecution was not calling Best as a witness and that Best would not be able to testify in any event until after the prosecution had called all its witnesses and closed its case. The defence could have then obtained another day for Best to appear to testify, or the defence could have made an arrangement with the prosecution on May 13, 2013, when the Motion to Adjourn the July 29th trial date had been heard to reserve a second day for the defendant's trial in order for Best to appear to testify, or they could have also agreed to using the September 13, 2013 (the third scheduled trial date) as the second day of the trial for Best to give her testimony for the defence.

[176] Therefore, as a consequence of the lack of diligence, coordination, and promptness of the defendant's legal representatives in resolving disclosure issues before the first scheduled trial date and in obtaining information in order to contact Adilla Best and secure her attendance or appearance for the April 8th trial, this period of delay between April 9, 2013 and September 13, 2013, in respect to the adjournment of the first scheduled trial date of April 8, 2013, is attributable to the defence and does not count as inexcusable or institutional delay. Accordingly, the 5 months and 5 days for this period will be attributed to defence responsibility.

(iv) The Period From Sep. 14/13 To Oct. 15/13

[177] As for the fourth period under consideration from and including September 14, 2013, to and including October 15, 2013, there are 32 days or 1 month and 2 days.

[178] September 13, 2013, had been the third scheduled trial date. However, before the trial could commence on that date, the prosecution had learned that Court Administration had provided or scheduled the trial on a day specifically reserved for the Ministry of Environment matters, as the tier for the defendant's trial had not been closed off so that matters for the Ministry of Environment had been then scheduled into the same tier that had been scheduled for the defendant's trial with approximately five witnesses besides the defendant. It also appears that there had been five witnesses, including Adilla Best, present in the courthouse for the defendant's trial on September 13th. Unfortunately, the trial had to be rescheduled and the September 13th appearance was converted into a judicial pre-trial with the presiding justice later that day to canvas issues, and had also provided an opportunity for the parties to try to resolve the defendant's matter.

[179] In addition, the defendant's trial legal representative, Richard Duncan, had stated to the presiding justice that the defendant had been prepared and ready to proceed with her trial on that day of September 13th, and that the defendant's s. 11(b) rights were not being waived.

[180] Consequently, a judicial pre-trial had commenced and held on September 13th. Moreover, the presiding justice then adjourned the defendant's matter to October 15, 2013, for a continuation of the judicial pre-trial to allow the parties more time to have further discussions and to try to resolve the defendant's matter.

[181] Moreover, there is no evidence that the defence had raised any disclosure concerns or issues during the judicial pre-trial when it would have been a perfect opportunity to raise any disclosure issues with the presiding justice conducting the judicial pre-trial on September 13, 2013 or when the continuation of the judicial pre-trial came up on October 15, 2013.

[182] Furthermore, the Court of Appeal for Ontario in R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83, had held that the delay related to conducting and scheduling judicial pre-trials, which benefits overburden courts, have inherent time requirements and that the delay in question should not all be calculated as institutional delay. In the defendant's case, only 1 month and 2 days of delay had resulted in conducting and scheduling the judicial pre-trial and the continuation of the judicial pre-trial. As such, this particular period of delay is inherent time for the 11(b) analysis.

[183] In addition, because the delay between September 14, 2013 and October 15, 2013, had been the result of judicial input and involvement in proposing a judicial pre-trial be held on September 13th, since the trial could not be completed with the number of witnesses present in the courthouse that day for the remaining court time available on September 13th, and then to schedule the continuation of the judicial pre-trial for October 15, 2013, the delay in respect to the judicial pre-trial being conducted and continued onto October 15th, of 1 month and 2 days, is considered to be inherent time in the 11(b) determination.

(v) The Period From Oct. 16/13 To May 23/14

[184] In respect to this fifth period under consideration from and including October 16, 2013, to and including May 23, 2014, there are 220 days or 7 months and 8 days.

[185] Ultimately, the delay in respect to the period between October 16, 2013 and May 23, 2014, had been the result of the error of Court Administration scheduling the defendant's trial onto a Ministry of the Environment day, which necessitated the prosecution to seek an adjournment of the third scheduled trial day of September 13, 2013.

[186] However, generally when it is an administrative error that causes the delay, even though the prosecution is not the party who had actually caused the error or the delay, the period of delay caused by Court Administration is nevertheless considered to be the responsibility of the prosecution and is generally attributed to the prosecution for the purposes of the 11(b) determination.

[187] On the other hand, not all of this period of 7 months and 8 days of delay should count against the prosecution, since the delay had resulted simply from an error by Court Administration in setting the trial date onto an already existing day set aside for the Ministry of the Environment. Moreover, because six witnesses were anticipated to testify at the trial after the parties in the two judicial pre-trial dates could not resolve the matter, the presiding justice had to schedule the trial for a half-day of court time. To accommodate this lengthier trial for a Part I Certificate of Offence required some additional time in order to obtain and schedule a trial of this type along with scheduling all the regular Part I regulatory trials that have to be accommodated within a busy Provincial Offences courthouse. As such, three months will be attributed to inherent time to accommodate this lengthier regulatory trial and to allow time to subpoena witnesses for the trial.

[188] Therefore, three months of the 7 months and 8 days and will be attributed as inherent time, to schedule and to accommodate the one-half day trial with six witnesses that had been scheduled after the judicial pre-trial and to also allow for time to subpoena witnesses for the fourth scheduled trial date of May 23, 2014. Accordingly, the remaining 4 months and 8 days will be attributed as prosecution responsibility.

(vi) The Period From May 24/14 To Aug. 22/14

[189] For the sixth period under consideration, which is from and including May 24, 2014, to and including August 22, 2014, there are 91 days or 2 months and 30 days.

[190] In addition, before the fourth scheduled trial date of May 23, 2014, the defendant's Toronto-based paralegal firm had filed an 11(b) application with the court on April 9, 2014, which had also contributed to the trial not commencing immediately at 9:00 a.m. on May 23rd. This had been due to the defendant's trial legal representative not picking up the transcripts for the prior court appearances for the 11(b) application until the morning of May 23, 2014, and then requiring 20 minutes to review them, even though the transcripts had been ready to be picked up as of April 10, 2014.

[191] Furthermore, the defendant's trial legal representative did not inform the presiding justice on October 15, 2013, that the defence had been anticipating filing an 11(b) application to be heard on the fourth scheduled trial date of May 23, 2014. Only one-half of a day of court time had been scheduled for a trial with six witnesses and no time had been set aside for May 23, 2014, to hear an 11(b) application. The 11(b) application had not been filed at the courthouse until April 9, 2014, nearly 6 months after the fourth scheduled trial date had been set on October 15, 2013, and despite transcripts for two of the four prior court appearances being ordered by the defence on October 25, 2013.

[192] On the fourth scheduled trial date of May 23, 2014, the defendant's trial legal representative had sought to argue the 11(b) application. However, not all of the transcripts had been obtained by the defendant's Toronto-based paralegal firm for all the prior court appearances of the defendant's matter in court. Transcripts of all court appearances are required before a proper consideration can be made on whether the defendant's right to be tried within a reasonable time had been infringed. The defendant's Toronto-based paralegal firm had not obtained transcripts for the May 13, 2013, court appearance in respect to the pre-trial motion made to adjourn the second scheduled trial date and for the October 15, 2013, court appearance set for the continuation of a judicial pre-trial and for setting the matter down for trial if the matter could not be resolved. Only two transcripts for the court appearances of April 8, 2013, the first scheduled trial date, and for the court appearance of September 13, 2013, the third schedule trial date, had been obtained and provided to the court with the 11(b) application.

[193] The defence then sought an adjournment to perfect the 11(b) application, but the adjournment was not granted. In addition, it was decided by the court that the 11(b) application would not be entertained without a complete set of transcripts for all court appearances in respect to the defendant's matter.

[194] Furthermore, in respect to the defence's failure to perfect the 11(b) application by not obtaining transcripts for all court appearances of the defendant's matter and provide them to the court with the 11(b) application, there had been sufficient time to order and obtain all the transcripts, since the fourth scheduled trial date of May 23, 2014, had been set way back on October 15, 2013, and the defence had ordered the transcripts for the April 8, 2013, and September 13, 2013, court appearances on October 25, 2013. However, the remaining two transcripts for the May 13, 2013, and October 15, 2013, court appearances had not been ordered until April 9, 2014. If the defence had indeed decided to make an 11(b) application soon after the October 15, 2013, court appearance when the fourth scheduled trial date of May 23, 2014, had been set, then the defendant's legal representatives could have ordered all the required transcripts shortly after the date of October 15, 2013, for the anticipated 11(b) application. As such, the failure by the defendant's legal representatives to order and obtain the transcripts for all the court appearances of the defendant's matter promptly after the fourth scheduled trial date of May 23, 2014, had been set on October 15th, had prevented the 11(b) application from being perfected and which then led to the 11(b) application not being permitted to be argued on May 23, 2014.

[195] Moreover, on the fourth scheduled trial date of May 23, 2014, it appears that all six witnesses that were going to testify in the trial had been present in the courthouse. And, after the defence had made an unsuccessful application to adjourn the May 23rd trial in order to perfect the 11(b) application, the defendant's trial legal representative then raised another disclosure issue in respect to the statements of all the civilian witnesses, by contending that the police officer had noted what all the witnesses had observed by recording the witnesses observations in his notes, but that the defence needed a will-say statement for all the witnesses on what the witness would be testifying to, although the defendant's trial legal representative had stated on the third scheduled trial date of September 13, 2013, that the defendant had been ready and prepared to proceed with the trial on that date, and as there is no evidence that the defence had brought up on the judicial pre-trial held on September 13, 2013, and continued on October 15, 2013, that there had been any disclosure issues in respect to any witness statements in the possession of the prosecution which had not been disclosed to the defence.

[196] And, in response to the defendant's attempt to obtain an adjournment in respect to obtaining will-says from the prosecution for all witnesses, the prosecution indicated that the prosecution had given all the disclosure to the defendant's legal representatives and that a judicial pre-trial had already been held in respect to the matter. It was then determined by this court on May 23, 2014, that the prosecution did not have to provide any will-says for all the witnesses, as the observations of those witnesses had already been set out in the police summary of what that particular witness would say at the trial.

[197] Furthermore, this last minute and without merit adjournment request for a supposed failure of the prosecution to provide will-say statements for all the witnesses, when the defence had already been provided with the observations of all the witnesses that had been recorded in the investigating officer's notes, immediately after the defence's adjournment application had been unsuccessful, and as there no evidence that the defence had ever brought up during the two days utilized for the judicial pre-trial the issue about requiring will-says for all the witnesses, certainly appears to be another attempt by the defence to purposely delay the commencement of the trial.

[198] Eventually, the trial of the defendant's red light charge scheduled for one-half of a day court time had finally commenced on May 23, 2014, 45 minutes after it had been scheduled to start. As such, the defendant's trial commenced 21 months and 8 days (or 646 days) after the defendant's Notice of Intention to Appear had been filed on August 15, 2012.

[199] Four witnesses then testified for the prosecution in the defendant's trial, which comprised of three civilian witnesses who were Julian Kanarek, Mike Millar, Nicklos Gardanis, and the investigating officer, Cst. Soos. After Officer Soos completed his testimony, the prosecution submitted that their case had been completed.

[200] After the prosecution had closed their case, Richard Duncan, the defendant's trial legal representative then raised the issue of not having Officer Gregoire's notes. Officer Gregoire had also been at the scene of the accident, but for managing traffic only, and had obtained the names and contact information of the defendant and of the other driver involved in the accident, which information had already been disclosed by the prosecution. The defendant's trial legal representative then confirmed that Officer Gregoire's notes did not contain any information that had not already been disclosed by the prosecution, but that the defence had still been entitled to the disclosure of Officer Gregoire's notes, even though Officer Gregoire's notes did not contain any information that had not already been disclosed.

[201] Then the defendant's trial legal representative sought an adjournment so he could review his trial notes. Because there would not have been sufficient time to complete the trial that day in any event, the defendant's application to adjourn the trial was granted and the trial was scheduled to continue on August 22, 2014.

[202] However, in considering the reasons for the delay in respect to this sixth period of delay, it had been because the defendant's trial could not be completed in the half-day of courtroom time on May 23, 2014, that had been set aside for the trial, as the trial had commenced 45 minutes late on account of the defendant's trial legal representative not picking up the transcripts for prior court appearances until the morning of May 23, 2014, and then requiring 20 minutes to review them, even though the transcripts had been ready to be picked up as of April 10, 2014. In addition, it appears that there had been a miscalculation of the amount of time that would have been required to complete a trial with six witnesses, since a half-day of courtroom time does not appear to have been enough. However, trials running longer than anticipated occur regularly and for this particular case, the time estimation for completing the trial does not appear to be exceptionally underestimated.

(a) Rescheduling A Trial That Has Not Commenced Or That Has Not Been Completed

[203] In R. v. Lahiry, (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.O.), Code J. at paras. 67 to 70, noted that when dealing with the period related to rescheduling a trial that has not commenced or that has not been completed on the scheduled trial date, the authorities have held that the case must be given priority in the system and that the delays resulting from rescheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances:

There is now a substantial a body of case law dealing with this issue of rescheduling a trial that has not commenced or that has not been completed on the scheduled trial date. These authorities hold that the case must be given priority in the system and that the delays resulting from rescheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances. See R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689, 104 O.R. (3d) 32, [2010] O.J. No. 4474, 261 C.C.C. (3d) 455 (C.A.), at paras. 14-16; R. v. Allen, supra, at pp. 347-51 C.C.C.; R. v. Satkunananthan, [2001] O.J. No. 1019, 152 C.C.C. (3d) 321 (C.A.), at paras. 43-45 and 54-55; R. v. M. (R.), [2003] O.J. No. 4240, 180 C.C.C. (3d) 49 (C.A.), at paras. 6-9; R. v. W. (A.J.), 2009 ONCA 661, [2009] O.J. No. 3814, 257 O.A.C. 11 (C.A.), at paras. 29-43; R. v. Khan, supra, at paras. 58-71.

Applying the principles set out in these cases, the defence sought an adjournment of the first trial date in order to pursue resolution discussions. This was a proper and beneficial reason to seek delay. However, the inevitable cost of this decision, should the resolution discussions fail, was that some further delay would be incurred in rescheduling the case for trial. As long as this further period of delay is reasonably short, it is simply part of the inherent time requirements of the case. When the resolution discussions did fail in the case at bar, the Crown wisely and responsibly noted the need to give the case priority, attended upon the trial coordinator and obtained a new trial date that was two months and four days away. This short period of delay, from January 19 to March 23, 2009, was reasonable and necessary and was part of the inherent time requirements resulting from the defence decision to adjourn the first trial date and pursue resolution discussions. The trial judge characterized this period as delay caused by the defence. I would characterize it as neutral.

… In R. v. W. (A.J.), supra, at paras. 30 and 33, Rosenberg J.A. gave the judgment of the Court of Appeal and dealt with an analogous situation where a jury trial did not proceed on the March trial date. A mistrial was declared because there was only one judge available to conduct the trial and because another case was given priority. The court offered new trial dates in June and July, within three months of the mistrial, but defence counsel was not available. Rosenberg J.A. apportioned the delay as follows [at paras. 30-33]:

The question of how to characterize the resulting delay is a difficult one. It seems to me that in principle, since the mistrial was caused by a systemic failure, the delay until the system is able to again accommodate the trial is properly characterized as institutional delay. Thus, from March 19, 2007 until June 4, 2007, [the first date that the court was available for continuation of the trial] at least, is institutional delay.

In this case, the delay from June 4 to July 31 [when the court had available dates but counsel was unavailable] is properly considered to be neutral. The system was available to hear the case, but defence counsel, for perfectly valid reasons was not. The reason for the delay from June 4 to July 31 was made clear on the record. That delay was not waived but the result of unavailability of defence counsel, who had been prepared for trial on the original date but quite properly had scheduled other matters in the reasonable assumption that the respondent's case would proceed as scheduled: see R. v. Godin, 2009 SCC 26, at para. 23.

In the case at bar, as noted above, the court consistently offered early continuation dates. In both instances, when the trial commenced or continued but was not completed, in March 2009 and in December 2009, dates were offered within one month but counsel was not available. The period of institutional delay, when the system could not accommodate the case, is the one month after each of these two trial dates, in other words, a total of two months. The rest of the delay, when the court was available but counsel was understandably not available, is neutral.

[204] Moreover, 45 minutes of court time would not have been wasted if the defence had been diligent in picking up the completed transcripts in a timely fashion and reviewing them before attending for the trial scheduled for May 23, 2014, instead of only picking them up on the morning of the trial. As such, because the trial had commenced late due to the defence's lack of diligence in picking up the transcripts and reviewing them before the scheduled trial day, considering that the defence had been informed that they had been ready to pick up on April 10, 2014, some of the delay caused by not being able to finish the trial on May 23, 2014, in the half-day of allotted court time and the need to schedule a continuation of the trial should be attributed to defence responsibility.

[205] In addition, in scheduling the continuation of the trial, days were offered to the defence in June and July of 2014, but the defence or the defendant were not available for those dates in June or July of 2014.

[206] Moreover, for this sixth period under consideration, the date of the continuation of the trial for August 22, 2014, had to be chosen to accommodate the schedules of the prosecutor, the defendant's trial legal representative, the defendant, and the trial justice, and to accommodate the scheduling of the continuation of the trial into an available courtroom in the calendar of a busy courthouse based on the estimated court time that it would take to complete the trial with the two defence witnesses that had been anticipated to testify. The defence also did not inform the trial justice that a new 11(b) application would be filed so that court time to hear the 11(b) application was not considered when scheduling the continuation of the trial for August 22, 2014. In addition, finding an available courtroom to accommodate the schedule of all the parties for the continuation of the trial with two witnesses to resume 2 months and 30 days later was not unreasonable for the circumstances.

[207] Therefore, 30 days of the 2 months and 30 days of delay in respect to the period from May 24, 2014 to August 22, 2014, will be attributed to defence responsibility based on not picking up the transcripts in a timely fashion which then caused the trial to commence late on May 23, 2014, while the remaining two months will be attributed to inherent time requirements to accommodate the parties and to complete the trial with two witnesses.

(vii) The Period From Aug. 23/14 To Jan. 30/15

[208] For this period under consideration from and including August 23, 2014, to and including January 30, 2015, there are 161 days or 5 months and 8 days.

[209] On August 22, 2014, which had been scheduled for the continuation of the trial that had commenced on May 23, 2014, the defendant's trial legal representative, Richard Duncan, had sought an adjournment because Adilla Best, a witness intended to be called by the defence had a doctor's appointment that morning and had not been able to appear. However, when asked if the time scheduled for the continuation of the trial could be utilized by having the defendant's testimony given on that day, if the defendant was going to testify, the defendant's trial legal representative replied that they did not wish to have the defendant testify until after Adilla Best gave her testimony. The defence application to adjourn the continuation of the trial so that Adilla Best could attend to testify was then granted. The continuation of the trial was then rescheduled for January 30, 2015.

[210] However, it was admitted by defendant's trial legal representative that the defence had not subpoenaed Adilla Best to appear for the continuation of the trial scheduled for August 22nd.

[211] Also, prior to the continuation of the trial set for August 22, 2014, the defence had renewed their 11(b) application with a fresh application being filed with the parties on July 15, 2014, notifying the parties that an 11(b) application would be made on August 22, 2014. Transcripts were also provided for all previous court appearances. However, it was decided that since the trial had already commenced and that the prosecution had completed calling its witnesses and had closed its case, that the 11(b) application would not be heard until after the defence witnesses had completed their testimony.

[212] In addition, a whole day of trial time had to be found and scheduled to accommodate the anticipated testimony of two defence witnesses, the 11(b) application, and the closing arguments. Thus, the 5 months and 8 days for this period had been the time required to find and schedule a full day of court time for the continuation of the trial and to accommodate the schedules of the prosecutor, the trial legal representative, the defendant, Adilla Best, and the trial justice. Although this period to reschedule the continuation of the trial may be longer than normal, it had been the first day that could accommodate all the parties for a full day of trial. And, as the delay had been caused by the defence's request to adjourn the continuation of the trial scheduled for August 22nd trial because the defence had not subpoenaed Adilla Best to appear on court for that date or for ensuring that Best would be available for August 22nd, and because Best could not attend to testify since Best had scheduled a doctor's appointment for that day, and that the defence did not wish to utilize the remaining court time on August 22nd for the defendant to give her testimony first, such that a whole day would now be needed to accommodate the testimony of two defence witnesses for the continuation of the trial, the 11(b) application, and the closing arguments.

[213] Hence, this period of delay for August 23, 2014 to January 30, 2015, of 5 months and 8 days is therefore attributed to defence responsibility.

(C) Actions By The Accused Which Have Contributed To The Delay In Commencing Or Completing The Trial

[214] Much of the delay in this proceeding is attributed to the actions of the defence and their effort to use the defendant's 11(b) rights as an offensive weapon, which actions include the lack of diligence in obtaining or resolving disclosure issues with the prosecution in a timely fashion; in failing to subpoena or ensure that Adilla Best would appear as a witness to testify on August 22, 2014; in failing to order transcripts and picking up transcripts in a timely fashion; and in the lack of coordination between the Toronto-based paralegal firm and the trial representative in forwarding disclosure documents to the trial legal representative in time for the first scheduled trial date of April 8, 2013; and in arranging for subpoenas, the ordering of transcripts, and in the picking up of transcripts.

[215] Specifically, the defence had not been diligent or active in resolving any disclosure issues during the three months after the prosecution had faxed them the disclosure package. Many of the disclosure issues brought up by the defence for adjournment applications or in the 11(b) application were resolvable during those three months that preceded the trial.

[216] Moreover, the periods of delay resulting from the adjournments due to the absence of Adilla Best, who had been a potential defence witness, could have been avoided. For the first scheduled trial date of April 8, 2013, the trial could have proceeded without Adilla Best on that day, as there were potentially five witnesses beside Best that could have testified at the trial scheduled for April 8th, and since Best would not have been called by the defence to testify in any event until the prosecution would had closed their case. And, for the fourth scheduled trial date of August 22, 2014, the defence had not subpoenaed Best to appear for that day to testify, so that Best had instead scheduled a doctor's appointment for that day, and had been unavailable to testify.

[217] Moreover, in respect to actions where the delay would be attributed to the defence, Sopinka J. in Morin at paras. 44 and 45, had emphasized that this part of the analysis is not for placing blame on the defendant or to impute any improper motives for any actions taken by the defendant that may have caused delay. He further indicated that it is the voluntary actions of the defendant that are under consideration, and which could include change of venue motions, change of solicitors, re-elections, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, and other pre-trial applications or motions:

This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

An example of such actions is provided by Conway, supra. In Conway, the accused made a number of requests which led to the proceedings being delayed. Those requests included a change of venue motion, changes of solicitor and a request that the accused be allowed to re-elect trial by judge alone. A further example is provided in Bennett, supra, where the accused made an election at his scheduled Provincial Court trial to be tried in the then District Court. This converted a scheduled trial into a preliminary inquiry. While the type of action of the accused in both these cases was unquestionably bona fide, each action contributed to the delay and must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable.

[218] However, in R. v. MacDougall, [1998] S.C.J. No. 74 (S.C.C.), at para. 48, after referring to their earlier decision in R. v. Conway, McLachlin C.J. noted that delays intentionally caused by, consented to, or requested by the accused cannot be used in support of a claim that an s. 11(b) violation has occurred. Most importantly, McLachlin C.J. held that only those actions of the accused which directly contribute to the delay, such as a request for an adjournment, or which constitute a deliberate attempt to delay the trial, will count against an accused:

Delays intentionally caused by, consented to or requested by the accused cannot be used in support of a claim that a s. 11(b) violation has occurred: Conway, supra, at p. 1673. Otherwise, there might be an incentive to employ dilatory tactics in order to escape justice. However, only those actions of the accused which directly contribute to the delay - such as a request for an adjournment - or which constitute a deliberate attempt to delay the trial, will count against an accused. Such actions are inconsistent with a desire to proceed with the trial and are therefore inconsistent with an assertion of a s. 11(b) violation: see Morin, supra.

[219] And, from para. 48 to 49 in R. v. Askov, Cory J., in recognizing the existence of a societal interest as one of the aims of s. 11(b), had warned that the s. 11(b) right could often be transformed from a protective shield to an offensive weapon in the hands of an accused who did not wish to have a speedy trial and who earnestly hopes that the memory of a witness would fail, that other witnesses would become unavailable, and who embraces an opportunity to delay judgment day. Moreover, Cory J. also noted Doherty J's comments based on experience that an accused is often not interested in exercising the right bestowed on them by s. 11(b), but that instead the accused's interest would lie in having the right infringed by the prosecution so that they can escape a trial on the merits:

Further, implicit support for the concept that there is a societal aspect to s. 11(b) can be derived from the observation that the last thing that some wish for is a speedy trial. There is no doubt that many accused earnestly hope that the memory of a witness will fail and that other witnesses will become unavailable. This factor was noted by the Honourable T. G. Zuber in his Report of the Ontario Courts Inquiry (1987), at p. 73:

It is, however, the observation of this Inquiry that those accused of crime and their counsel are often disinterested in trial within a reasonable time. Delay is perceived not as a factor which will impair the ability of the accused to present a defence but rather a factor which will erode the case for the prosecution.

Doherty J. wrote to the same effect in a paper delivered to the National Criminal Law Program in July 1989. He wrote:

Many accused do not want to be tried at all, and many embrace any opportunity to delay judgment day. This reluctance to go to trial is no doubt a very human reaction to judgment days of any sort; as well as a reflection of the fact that in many cases delay inures to the benefit of the accused. An accused is often not interested in exercising the right bestowed on him by s. 11(b). His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits. This view may seem harsh but experience supports its validity.

This unique attitude on the part of accused toward this right often puts a court in a position where it perceives itself as being asked to dismiss a charge, not because the accused was denied something which he wanted, and which could have assisted him, but rather, because he got exactly what he wanted, or at least was happy to have -- delay. A dismissal of the charge, the only remedy available when s. 11(b) is found to have been violated, sticks in the judicial craw when everyone in the courtroom knows that the last thing the accused wanted was a speedy trial. It hardly enhances the reputation of the administration of justice when an accused escapes a trial on the merits, not because he was wronged in any real sense, but rather because he successfully played the waiting game.

As these comments from distinguished jurists indicate, the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused.

[220] I believe the inferred societal interest should be considered in conjunction with the main and primary concept of the protection of the individual's right to fundamental justice. This is closer to the views expressed by Wilson J. in Mills, supra. At some level, the conduct of and prejudice to the accused must be examined. Although it must be recognized that the primary goal of s. 11(b) is the protection of the individual's interest in fundamental justice, nevertheless that same section contains a secondary and inferred societal interest that should not be ignored. If the recognition of both the primary individual interest and the inferred society interest is accepted as the true aim of s. 11(b), then I think the various factors which should be taken into consideration in determining whether there has been an unreasonable delay can be clarified and set forth in a consistent test.

[221] Moreover, this theme that some accused would attempt to use s. 11(b) as an offensive weapon was reiterated in R. v. Morin, by Sopinka J. at para. 62. Furthermore, Sopinka J. also referred to the Askov decision in which Cory J. had held that the purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits, and that the right to be tried within a reasonable time must be interpreted in a manner which recognizes the abuse which may be invoked by some accused:

As also noted by Cory J. in Askov, supra, "the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused" (p. 1222). This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. This position is consistent with decisions of this Court in regard to other Charter provisions. For example, this Court has held that an accused must be reasonably diligent in contacting counsel under Charter s. 10(b) (R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Smith, [1989] 2 S.C.R. 368). If this requirement is not enforced, the right to counsel could be used to frustrate police investigation and in certain cases prevent essential evidence from being obtained. Nonetheless, in taking into account inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay.

[222] Furthermore, Durno J. pointed out in R. v. Ferguson, [2005] O.J. No. 3442 (S.C.J.O.), at paras. 154 and 155, that where an accused either personally or through counsel had been found to have intentionally set out to create delay for a future s. 11(b) application, it would be a significant factor in the balancing test the trial judge is required to undertake:

The inquiry is not an examination of time periods for which the accused is to blame, nor is it necessary to impute improper motives to the accused. Rather, if the accused chooses to take a certain course of action, it will be taken into account in determining what length of delay is reasonable: Morin, p. 17. An examination of these time periods may result in their being excluded from systemic delay.

However, where an accused either personally or through counsel is found to have intentionally set out to create delay for a future s. 11(b) application, it will be a significant factor in the balancing test the trial judge is required to undertake. As Cory J. noted in Morin, at p. 476, "the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused".

(1) The Lack Of Diligence By The Defendant's Legal Representatives In Obtaining Or Resolving Any Disclosure Issues In A Timely Fashion

[223] The prosecution had faxed the disclosure documents to the defendant's Toronto-based paralegal firm on January 10, 2013. However, the defendant's Toronto-based paralegal firm did not forward the disclosure package of documents to Richard Duncan, the licensed paralegal retained by the defendant's Toronto-based paralegal firm to conduct the trial, until the Friday before the trial scheduled for Monday, April 8, 2013. Some parts of the officer's notes were contended by Duncan to be illegible, and as such, sought an adjournment for the prosecution to provide the defence with typed notes. Moreover, the defendant's legal representatives did not formally request the typed notes or resolve any outstanding disclosure issues with the prosecution during the three months after the disclosure documents had been faxed to the defendant's Toronto-based paralegal firm on January 10, 2013, which had been more than enough time to have the prosecution provide the officer's notes in typed form or to resolve any outstanding or missing disclosure issues with the prosecution before the commencement of the trial on April 8, 2013. And, if there had been any unresolved disclosure issues, the defendant's legal representatives could have written the prosecution, and if that did not resolve the issue, then the disclosure issue could have been raised by a pre-trial motion for the court to resolve, or a proper adjournment application could have been brought to adjourn the April 8th trial, if there were still outstanding or missing disclosure issues, instead of only bringing up the disclosure issues up for the first time on the scheduled trial date when several civilian witnesses would have been present in the courtroom.

[224] And, as a consequence of this lack of coordination between the defendant's Toronto-based paralegal firm and the trial legal representative and the lack of diligence of the defendant's legal representatives in resolving any disclosure issues in a timely fashion with the prosecution before the first scheduled trial date of April 8, 2013, or in coordinating the forwarding of the disclosure package to the defendant's trial legal representative in a timely fashion, the first scheduled trial date of April 8, 2013, had to be adjourned. Moreover, considering that the prosecution had faxed the disclosure package on January 10, 2013, to the defendant's Toronto-based Paralegal firm, which is approximately three months before the scheduled first trial date of April 8, 2013, there had been sufficient time for the defendant's legal representatives to resolve the disclosure issues in the defendant's case with the prosecution, prior to the first trial date.

[225] Furthermore, in R. v. Stinchcombe, at para. 28, Sopinka J. held that the Crown or prosecution's obligation to disclose will be triggered by a timely request by or on behalf of the accused:

The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information.

[226] And, in R. v. Bramwell (1996), 106 C.C.C. (3d) 365, at para. 33, the British Columbia Court of Appeal had held that the failure of defence counsel to pursue disclosure in a diligent and timely manner is a factor in deciding the proper remedy:

The goal of the disclosure process is to ensure that the accused is not denied a fair trial. To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence must also play its part by diligently pursuing disclosure from Crown counsel in a timely manner. Further, where, as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made. In our view, the failure of defence counsel to pursue disclosure in a timely way is a factor which should have been considered by the trial judge in deciding whether a stay was appropriate in all of the circumstances.

[227] Moreover, in R. v. Stinchcombe, Sopinka J. at para. 24, stated that defense counsel is required to bring to the trial judge's attention at the earliest opportunity about the Crown's failure to comply with its duty to disclose:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

[228] And, in R. v. Dixon, [1998] S.C.R. 244, 122 C.C.C. (3d) 1, at paras. 37 and 38, the Supreme Court held that defence counsel are not entitled to assume at any point that all relevant information has been disclosed to the defence and that they still have an obligation to be duly diligent in pursuing disclosure. He also reasoned that defence counsel who do nothing in the face of knowledge that relevant information has not been disclosed would justify a finding they had lacked due diligence in pursuing or obtaining disclosure:

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. 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. This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996), 106 C.C.C. (3d) 365 (aff'd, [1996] 3 S.C.R. 1126), at p. 374."

[229] Therefore, the defendant's legal representatives had an obligation to alert the prosecution about incomplete disclosure and cannot simply rely on the time to run while awaiting to obtain full disclosure. And, where the defence fails to raise the issue of outstanding disclosure or the need for a typed version of the officer's notes in a timely fashion, but remains passive, they will be less able to claim that non-disclosure had affected the trial fairness.

[230] In addition, without a formal written request for further or specific disclosure the prosecution could have assumed that its obligation had been fulfilled at the time of the first scheduled trial date of April 8, 2013, when it had faxed the disclosure package to the defendant's Toronto-based paralegal firm on January 10, 2013,. The defendant's legal representatives, therefore, had not been diligent in their coordination or in making a timely request or in pursuing further disclosure or missing disclosure from the prosecution, during the three months after the prosecution had faxed the disclosure package to the defendant's Toronto-based paralegal firm. This is also evidence that is inconsistent with someone seeking to have their trial within a reasonable time.

(2) Pre-Trial And Adjournment Motions Made By The Defence

[231] Sopinka J. in Morin, at paras. 44 and 45, recognized that an accused's actions in bringing several pre-trial motions, notwithstanding an accused's entitlement to seek remedies, also contributes to the accused's trial not proceeding in a timely fashion. He then acknowledged that some of these actions could fall at the feet of the accused.

[232] In the defendant's proceeding, five motions to adjourn the trial had been made in this proceeding. One had been made by the prosecution on the third scheduled trial date of September 13, 2013, while the defendant's legal representatives had made four adjournment applications to adjourn a scheduled trial date. However, only one of those four applications had not been brought or made on an actual date set for the trial for which civilian witnesses had appeared in court to testify. In particular, the defence had only brought one of the four adjournment applications prior to an actual scheduled trial date when they had appeared on May 13, 2013, to make a motion to adjourn the trial set for July 29, 2013 (the second scheduled trial date) when the defence had contacted Adilla Best and had learned Best would not be able to attend on July 29th to testify due to being on vacation. For the other three defence applications to adjourn the trial, they had been brought by the defence on the actual trial date. Those three applications had been made on April 8, 2013 (the first scheduled trial date), on May 23, 2014 (the fourth scheduled trial date) and on August 22, 2014 (the date scheduled for the continuation of the trial). Two of those three defence applications for an adjournment of the trial had been made on the actual trial date when there had been civilian witnesses present in the courthouse to testify in the defendant's trial, namely on April 8, 2013, and on May 23, 2014.

[233] As for the motion to adjourn the trial made by the prosecution, they had been forced to bring that application to adjourn the trial on September 13, 2013 (the third scheduled trial date) because Court Administration had erroneously scheduled the trial on a day set aside for Ministry of the Environment matters.

[234] In addition, for the defence adjournment applications made on April 8, 2013 (the first scheduled trial date), which had been based on illegible officer's notes and the absence of Adilla Best, a potential defence witness; and on August 22, 2014 (the date set for the continuation of the trial), which had been based on the absence of Adilla Best, they had been granted.

[235] However, the defence's adjournment application made on May 23, 2014 (the fourth scheduled trial date), in order to obtain transcripts for two of the prior court appearances in order to perfect their 11(b) application, had not been granted. In addition, after the motion to adjourn based on obtaining the missing transcripts had been denied, the defence brought a further motion to adjourn the May 23rd trial based on the need for will-says for all witnesses to be provided to the defence, which had also been denied and had no merit in law. After the two failed defence motions to adjourn the trial, the trial of the defendant's charge eventually commenced on May 23rd.

[236] Moreover, in respect to the defence motions for adjournment, the defence had informed the presiding justice that they had not been ready to proceed with the trial on the scheduled trial dates of April 8, 2013 (the first scheduled trial date), July 29, 2013 (the second scheduled trial date), May 23, 2014 (the fourth scheduled trial date), and August 22, 2014 (the date scheduled for the continuation of the trial), but had been ready to proceed on September 13, 2013 (the third scheduled trial date), when the prosecution had brought a motion to adjourn the trial based on a scheduling error made by Court Administration.

[237] For the first scheduled trial date of April 8, 2013, the defence had requested the adjournment to obtain typed officer's notes and for Adilla Best to be present, even though the prosecution had faxed the disclosure documents to the defendant's Toronto-based paralegal firm three months earlier on January 10, 2013. For the second scheduled trial date of July 29, 2013, the defence had requested the adjournment as the defence had learned that Adilla Best would be on vacation out of the province on July 29th. For, the fourth scheduled trial date of May 23, 2014, the defence had requested the adjournment in order to obtain transcripts for perfecting their 11(b) application and to obtain will-says for all the witnesses even though the observations made by those witnesses had been communicated to Officer Soos and the observations of those witnesses had been recorded in Officer Soos' notes and had already been disclosed to the defence earlier.

[238] And, for the continuation of the trial scheduled for August 22, 2014, the defence had requested an adjournment as the defence had not subpoenaed Adilla Best to attend on that date to testify and had only contacted Best on the morning of August 22, 2014, and had learned that Best had been on her way to a doctor's appointment and could not attend right away.

[239] Ergo, for the numerous defence adjournment applications that had been brought, some of them were not necessary and had been due to the defendant's legal representatives not coordinating their representation of the defendant more diligently, which is evidenced by them not obtaining or resolving disclosure issues in a timely fashion; in not obtaining a subpoena for Adilla Best for the continuation of the trial for August 22, 2014; for not ensuring that the disclosure package had been provided to the trial legal representative in a timely fashion before the first scheduled trial date of April 8, 2013; and in not ordering and picking up transcripts in a timely fashion for the 11(b) application to be heard on May 23, 2014. In addition, the basis for adjourning the trial scheduled for April 8, 2013, and the continuation of the trial for August 22, 2014, due to Adilla Best's absence had not been critical for obtaining a fair trial, as the trial could have proceeded on April 8, 2013, and August 22, 2014, without Adilla Best, since the testimony of other witnesses could have been heard or provided to utilize the court time.

[240] In addition the defendant's Toronto-based paralegal firm had contacted Adilla Best on April 18, 2013, and learned that Best would be on vacation and out of the province on July 29, 2013 (the second scheduled trial date). Best had testified that she had provided to the defendant on the day of the accident her name and telephone number, although the defence had difficulty in communicating or contacting Best, as the telephone number provided to the defendant had appeared to be incorrect. The prosecution later provided a different telephone number for Adilla Best to the defence. Hence, the defence had Best's contact information from at least April 18, 2013. However, for the August 22, 2014, date for the continuation of the trial, the defence acknowledged that they did not subpoena Best to attend on August 22, 2014, and that they had just contacted Best on the morning of the trial when the defence had learned that Best was on her way to a doctor's appointment and would not be able to attend that morning for the trial.

[241] Accordingly, some of the defence motions to adjourn scheduled trials were frivolous and unnecessary, and had been caused by the lack of diligence on the defendant's legal representatives, and has led to the delay in this proceeding and to unnecessary inconvenience to several civilian witnesses who had appeared on two occasions to testify, but were not able to testify. As such, these actions by the defendant's legal representatives on behalf of the defendant are inconsistent with someone who wishes to have a trial within a reasonable time.

(3) Needless Inconvenience To Civilian Witnesses

[242] According to Rule 5(o) of the Paralegal Rules of Conduct, when a licensed paralegal acts as an advocate, they have a duty or obligation not to needlessly inconvenience witnesses:

The Paralegal and the Tribunal Process

(5) When acting as an advocate, the paralegal shall not

(o) needlessly inconvenience a witness and

[243] Ergo, seeking an adjournment on the day of the trial, when a proper adjournment application could have otherwise been properly made prior to the actual trial, would needlessly inconvenience civilian witnesses who have appeared in the courthouse on the date of the scheduled trial to testify.

[244] Accordingly, due to the actions of the defendant's legal representatives in not coordinating their labour more diligently, in not resolving any disclosure issues in a timely fashion, in not ordering or picking up transcripts in a timely fashion, and in not subpoenaing or ensuring that Adilla Best would be available to attend on scheduled trial dates, and seeking adjournments on the day of the trial is also evidence that is inconsistent with a someone who seeks to have their trial within a reasonable time, but is rather someone who is using their 11(b) rights as an offensive weapon.

(D) Have The Prosecution's Actions Led To Any Delay In Commencing Or Completing The Trial?

[245] Only one period of the overall length of delay could be attributed to the prosecution, which is the period from Oct 16, 2013 to May 23, 2014. This is the period following the administrative error in scheduling the defendant's trial onto a day set aside for the Ministry of the Environment matters, which necessitated the prosecution requesting an adjournment on September 13, 2013 (the third scheduled trial date), as the prosecution did not believe there would be sufficient court time remaining after the Ministry of the Environment had completed their matters in order to complete the defendant's trial with six potential witnesses.

[246] However, even though the prosecution had not caused the resulting delay from having to schedule a fourth trial date for May 23, 2014, the resulting delay is nevertheless attributed to the prosecution for the purposes of the 11(b) analysis. On the other hand, not all of the entire period of delay should be attributed to the prosecution, since a trial with six witnesses, which had been anticipated to take an half-day of court time to complete, had to be scheduled onto the trial schedule of a busy Provincial Offences courthouse. As such, 3 months of the 7 months and 28 days for this period had been attributed to the inherent time to find available court time and schedule a half-day trial with 6 witnesses and to allow time to subpoena witnesses after the two court appearances for the judicial pre-trial had been held, while 4 months and 28 days had been attributed to prosecution responsibility.

(E) Limits On Institutional Resources

[247] For this factor, Sopinka J. in Morin at paras. 47 and 48, 50 to 53, 55 to 57, recognized that institutional delay is the most common source of delay. Although, he recognized there is a struggle between scarce resources and the demand for speedy trials he noted that there is also a point in time at which the Court would no longer tolerate delay based on the plea of inadequate resources. This period of time, he said, may be referred to as an administrative guideline. In addition, he reasoned that the application of a guideline would also be influenced by the presence or absence of prejudice. Furthermore, he pointed out that if an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, he said in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact:

Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter. It was the major source of the delay in Askov. As I have stated, this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11(b) was either conceived or in which it operates. We live in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11(b), account must be taken of this fact of life. …

How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11(b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. This period of time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. …

The purpose of the suggested period was not therefore that it was to be treated as a limitation period and inflexible. …

…. A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors. This premise enters into its formulation. The Court must acknowledge that a guideline is not the result of any precise legal or scientific formula. It is the result of the exercise of a judicial discretion based on experience and taking into account the evidence of the limitations on resources, the strain imposed on them, statistics from other comparable jurisdictions and the opinions of other courts and judges, as well as any expert opinion. …

I have already stressed that a guideline is not to be treated as a fixed limitation period. It will yield to other factors. Rapidly changing conditions may place a sudden and temporary strain on resources. This was the situation in the District of Durham in which this case arose. Such changing conditions should not result in an amnesty for persons charged in that region. Rather this fact should be taken into account in applying the guideline. On the other hand, when the case load has been constant over a substantial period of time the delay envisaged by the guideline may be regarded as excessive. …

The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact.

… it is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay.

A longer period of institutional delay for Provincial Courts is justified on the basis that not only do these courts dispose of the vast majority of cases, but that on average it takes more time to dispose of cases by reason of the demands placed on these courts. …

These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances.

(F) Other Reasons For The Delay

[248] In addition, Sopinka J. noted that there may be other reasons for delay that were not specifically outlined in Morin. At para. 59, he gave an example where actions by trial judges could delay proceedings and therefore could be considered under s. 11(b):

There may be reasons for delay other than those mentioned above, each of which should be taken into consideration. As I have been at pains to emphasize, an investigation of unreasonable delay must take into account all reasons for the delay in an attempt to delineate what is truly reasonable for the case before the court. One such factor which does not fit particularly well into any other category of delay is that of actions by trial judges. An extreme example is provided by Rahey, supra. In that case it was the trial court judge who caused a substantial amount of the delay. Nineteen adjournments over the course of 11 months were instigated by the judge during the course of the trial. Such delay is not institutional in the strict sense. Nevertheless, such delay cannot be relied upon by the Crown to justify the period under consideration.

[249] In this case, the presiding justice on September 13, 2013, suggested and invited the parties to try to resolve any issues in a judicial pre-trial to be held later that day. This had been the third scheduled trial date, but the prosecution had brought a motion to adjourn the trial due to a Court Administration error that had caused the defendant's half-day trial to be scheduled onto a day reserved for Ministry of Environment matters. The judicial pre-trial was conducted that day and at the suggestion of the presiding justice the defendant's matter was then adjourn until October 15, 2013, to permit the parties time to try to resolve the matter or issues and for a continuation of the pre-trial. As the judicial pre-trial had been an attempt at narrowing the issues and instigated by the presiding justice, and as there had only been a delay of 1 month and 2 days, then this period would be inherent time.

(G) The Inexcusable Or Institutional Delay For The 11(B) Determination

[250] In deciding what period of institutional delay would be reasonable for bringing a matter to trial, Sopinka J. in R. v. Morin, at para. 55, suggested a period of between 8 to 10 months for Provincial Courts as an administrative guideline to assess institutional delay and as the threshold length of time to trigger a further inquiry into the reasonableness of the delay. He also indicated, at paras. 48 and 50, that the guideline is neither a limitation period nor a fixed ceiling on delay. Moreover, at paras. 46, 53, and 76, he recognized elasticity in utilizing the guideline, such that deviations of several months in either direction of the 8 to 10 month guideline can be justified by the presence or absence of prejudice.

[251] After applying the Morin factors to the overall length of the delay of 29 months and 15 days, and after assessing the periods in question, the following is the apportionment of the periods for neutral or inherent time, institutional delay, defence waiver or responsibility, and prosecution responsibility:

Neutral or inherent time requirements

(a). An intake period: 2 months (in respect to some of the period from April 16/12 to April 8/13) (b). A period to conduct a judicial pre-trial: 1 month and 2 days (for the period from Sep. 14/13 to Oct. 15/13) (c). The inherent time requirements to summons witnesses and to accommodate and reschedule a trial for one-half of day of court time with six witnesses after the trial had been adjourned due to Court Administration error in scheduling trial on a Ministry of Environment day: 3 months (for some of the time for the period from Oct. 16/14 to May 23/14) (d). The inherent time requirements to schedule and to accommodate prosecutor, defendant, defendant's trial legal representative, and trial justice in order to complete two days of trial with 6 witnesses: 2 months (for some of the period from May 24/14 to Aug. 22/14)

Total: 8 months and 2 days

Institutional delay

(a). 5 months and 24 days (in respect to some of the period from April 16/12 to April 8/13)

Total: 5 months and 24 days

Defence waiver or responsibility

(a). there was no explicit or implicit defence waiver of any period of the overall delay: 0 months and 0 days (for the period from Aug. 15/13 to Jan. 30/15) (b). defence request for adjournment of first schedule trial date of April 8, 2013: 5 months and 5 days (for the period from April 9/13 to Sept. 13/13) (c). defence picking up transcripts on day of trial and needing time to review transcripts, which caused the commencement of trial to be delayed by 45 minutes on May 23, 2014, which then resulted in the trial not completed on that day due to the lack of time remaining. Days were available to continue the trial in June and July 204, but the defence or the defendant were not available: 30 days (for the period from May 24/14 to Aug. 22/14) (d). defence request for adjournment of August 22, 2014, trial because defence had not subpoenaed Adilla Best, a potential defence witness, to appear for the trial and Best had made a doctor's appointment for the same day as the continuation of the trial: 5 months and 8 days (for the period from Aug. 23/14 to Jan. 30/15)

Total: 11 months and 13 days

Prosecution responsibility

(a). September 13, 2013 trial had to be adjourned and rescheduled due to Court Administration error in scheduling trial on a Ministry of Environment day: 4 months and 8 days (for some of the time in the period from Oct. 16/14 to May 23/14)

Total: 4 months and 8 days

TOTAL

OVERALL LENGTH OF DELAY: 29 months and 15 days

[252] In short, the inexcusable of or unreasonable delay in this case is 10 months and 2 days, which is comprised of 5 months and 24 days for institutional delay and 4 months and 8 days attributed to prosecution responsibility.

[253] Ergo, this inexcusable and institutional delay does not fall significantly outside the administrative guideline of 8 to 10 months established by the Supreme Court in R. v. Morin to reasonably commence and complete a trial, and would not be unreasonable if there is no actual or inferred prejudice from the delay to the defendant's fair trial interest or security interest, which could shorten the length of inexcusable and institutional delay that would be acceptable for the circumstances of the present case.

(H) Prejudice To The Defendant's Fair Trial Or Security Interest

[254] The defence contends that because of the undue delay in the commencement and completion of the defendant's trial, the defendant's and the defence witness Adilla Best's memory had faded, and therefore, has caused irremediable prejudice to the defendant's ability to have a fair trial, as the defendant would unable to make full answer and defence.

[255] Furthermore, the issue of the erosion of witnesses' memories had been discussed by Cory J. in R. v. Askov, [1990] S.C.J. No. 106, [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449 (S.C.C.), at para. 45, where he noted that a lengthy delay in proceeding with a trial could lead to the erosion of witnesses' memories and to the loss of witnesses, who move out of the country or who become sick and are unable to testify, or who die:

There are as well important practical benefits which flow from a quick resolution of the charges. There can be no doubt that memories fade with time. Witnesses are likely to be more reliable testifying to events in the immediate past as opposed to events that transpired many months or even years before the trial. Not only is there an erosion of the witnesses' memory with the passage of time, but there is bound to be an erosion of the witnesses themselves. Witnesses are people; they are moved out of the country by their employer; or for reasons related to family or work they move from the east coast to the west coast; they become sick and unable to testify in court; they are involved in debilitating accidents; they die and their testimony is forever lost. Witnesses too are concerned that their evidence be taken as quickly as possible. Testifying is often thought to be an ordeal. It is something that weighs on the minds of witnesses and is a source of worry and frustration for them until they have given their testimony.

[256] Moreover, in Morin at paras. 61 to 63, Sopinka J. commented that although it may true that the majority of people charged do not want their trial to be held early, the practices or desires of the majority are not determinative of the protection of individual rights under s. 11(b). Furthermore, he said that prejudice to an accused can be inferred from prolonged delay and that the longer the delay the more likely such an inference can be drawn. In addition, he identified that the purpose of s. 11(b) is for expediting trials and minimizing prejudice and not for avoiding trials on the merits:

Section 11(b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion. We have decided in several judgments, including the unanimous judgment in Smith, supra, that the right protected by s. 11(b) is not restricted to those who demonstrate that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. … . While the observation of Dubin C.J.O. in Bennett that many, perhaps most, accused are not anxious to have an early trial may no doubt be accurate, s. 11(b) was designed to protect the individual, whose rights are not to be determined on the basis of the desires or practices of the majority. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. 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.

This Court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial (see Askov, supra, at pp. 1225, 1227, 1229). While it was not necessary for the accused to assert her right to be tried within a reasonable time, strong views have been expressed that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of the accused. This view is summed up by Doherty J. (as he then was) in a paper given to the National Criminal Law Program in July 1989 which was referred to with approval by Dubin C.J.O. in Bennett (at p. 52) and echoes what has been noted by numerous commentators:

An accused is often not interested in exercising the right bestowed on him by s. 11(b). His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits. This view may seem harsh but experience supports its validity.

As also noted by Cory J. in Askov, supra, "the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused" (p. 1222). This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. This position is consistent with decisions of this Court in regard to other Charter provisions. For example, this Court has held that an accused must be reasonably diligent in contacting counsel under Charter s. 10(b) (R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Smith, [1989] 2 S.C.R. 368). If this requirement is not enforced, the right to counsel could be used to frustrate police investigation and in certain cases prevent essential evidence from being obtained. Nonetheless, in taking into account inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay.

Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adopted by Lamer J. in Mills, supra, at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence.

Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated. The application of any guideline will be influenced by this factor.

[257] Hence, the trial justice may infer or presume prejudice, or that it may be proven. In addition, the length of delay is but one factor to be used in balancing or weighing society's desire to have matters proceed to trial on the merits against the societal and individual interest in speedy trials. Moreover, the requisite key to a successful 11(b) application is the presence of prejudice to an accused resulting from the passage of time.

[258] In proving actual prejudice or inferring prejudice to the defendant's fair trial interest, the defence contends that because of the inordinate delay the defendant's and her witness Adilla Best's memory have faded or been eroded by time.

[259] However, at the trial, the defendant's testimony had been very detailed and voluminous and she had been able to recall specific details, such as seeing a lady wearing a white tank top on the bus standing by the bus driver, distances, the speed she had been travelling at, the position or location of the Mississauga Transit bus and of other vehicles that she had observed in the vicinity of the intersection.

[260] As for Adilla Best, she had testified that it had been a long time since the accident and that she could not recall certain details of that day. However, Best did recall that she had been looking at her cellphone when she had been stopped at the intersection, and that when she had looked up she had observed the traffic light for her had been green, but that she did not move her vehicle for an instant and does not know why she did not move her vehicle right away, except for being cautious. She then said she observed a black-coloured SUV spiraling in front of her and then go over to the other side. She also said that beside her had been a white or beige-coloured car coming towards her. In addition, she said she was in shock.

[261] In addition, Adilla Best had been on the westside of the intersection and would have had a farther view of the defendant's vehicle and the stop line on the eastside of the intersection for westbound traffic on Erin Centre Boulevard than Mike Millar and Nicklos Gardanis, who were both stopped in the westbound curb lane on the eastside of the intersection waiting for the red light to change and who had been situated closer to the painted stop line on the eastside of the intersection.

[262] And, as for the argument that the defendant's and Adilla Best's memory had faded on account of the inordinate delay, the defendant's testimony had been very detailed and specific and did not appear to have been affected by the amount of time it had taken to commence and complete the trial; while for Adilla Best's testimony, Best had testified that she could not recall all the details of what she had observed that day because the accident had happened nearly two and a half years ago. However, as Best had testified, she had not even been looking at the intersection or at the traffic light, but at her cellphone, just before the defendant had entered the intersection and at the moment of the collision. Therefore, the defendant's memory as to specific details and events did not appear to have been significantly faded, and although Adilla Best's memory has been affected by the passage of time, Best was not even looking at the intersection, the traffic light at the intersection, or at westbound traffic on Erin Centre Boulevard or southbound traffic on Glen Erin Drive just before the collision had occurred, even though Best had said that when her light had turned green she did not move forward right away.

[263] Moreover, in R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.O.), at paras. 77 to 79, Code J. noted that in considering the issue of prejudice where the delay had been caused by the accused in order to achieve some benefit that they had been seeking, the accused then cannot turn around and use this delay later to argue that they had been actually prejudiced in some way by their own delays. In addition, Code J. held that delay deliberately sought by the accused (short of waiver) would negative the normal inference of prejudice that would otherwise be drawn from lengthy delays in a case:

In R. v. Morin, supra, at paras. 40, 62 and 64, Sopinka J. stated a number of fundamental propositions about the correct legal approach to this factor of prejudice. In particular, he stated the following [at paras. 40, 62 and 64]:

Neither side . . . can rely on their own delay to support their respective positions. . . . Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. . . . Inaction may . . . be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay. . . . [The] prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. (Emphasis added)

In stating these propositions, Sopinka J. held that he was giving effect to Cory J.'s assertion in R. v. Askov, supra, at p. 692 O.R., p. 1222 S.C.R., pp. 476, 480-81 and 483 C.C.C., that "the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused". Cory J. went on to illustrate the point by referring to R. v. Conway, [1989] 1 S.C.R. 1659, [1989] S.C.J. No. 70, 49 C.C.C. (3d) 289 as a case where the accused had caused much of the very lengthy delay in that case and then sought to invoke s. 11(b) as a means of remedying the delay. Cory J. stated [at pp. 696-98 O.R., pp. 1227-30 S.C.R.]:

Nonetheless, there is a societal interest in preventing an accused from using the guarantee as a means of escaping trial. It should be emphasized that an inquiry into the actions of the accused should be restricted to discovering those situations where the accused's acts either directly caused the delay (as in R. v. Conway, supra), or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial. These direct acts on the part of the accused, such as seeking an adjournment to retain new counsel, must of course be distinguished from those situations where the delay was caused by factors beyond the control of the accused, or a situation where the accused did nothing to prevent a delay caused by the Crown.

Nonetheless, the factual situation presented in R. v. Conway, supra serves as an example of an extremely lengthy delay which did not prejudice the accused. (Emphasis added)

The principle emerging from these three Supreme Court of Canada authorities is that delay caused by the accused, in order to achieve some benefit that he was seeking, cannot be turned around and used to later argue that he was actually prejudiced in some way by his own delays. Indeed, delay deliberately sought by the accused negatives the normal inference of prejudice that would otherwise be drawn from lengthy delays in a case.

[264] Also, in this proceeding, the red light charge against the defendant, which proceeded under a Part I Certificate of Offence does not provide for a custodial sentence upon conviction. As such, there is no liberty interest at issue.

[265] On the other hand, if there had been the potential of a custodial sentence then it could have weighed heavily on the defendant's mind so that the defendant's security interest guaranteed under s. 11(b) would have been affected the longer the trial of the red light charge took to commence or to complete. In addition, if there had been an inordinate delay in proceeding and completing the trial of a Highway Traffic Act charge involving the potential of a custodial sentence, then there would have been greater weight placed on the defendant's security interests than for someone charged with a minor traffic offence in which a custodial sentence would not be available upon conviction. As such, the charge that the defendant presently faces is one that falls in the category of a non-custodial penalty type of minor traffic offence that virtually would have little inferred or actual prejudice affecting her security interest. Justice Doherty of the Court of Appeal for Ontario has acknowledged in R. v. Omarzadah, [2004] O.J. No. 2212, at para. 3, that in general any stigma that may arise for minor traffic offences, such as a speeding offence, is virtually non-existent. The defendant's red light charge, on the other hand, would only give rise to some inferred prejudice to her fair trial interest the more her trial had been delayed. However, since much of the delay in the defendant's proceeding had been attributed to the actions of the defendant's legal representatives, which negated the defendant's desire for a trial within a reasonable time, there is only minimal prejudice to the defendant's security interest that can be inferred from the passage of time in this case.

[266] Consequently, although the overall length of the delay in commencing and completing the defendant's trial had been 29 months and 15 days, much of the delay has been attributed to defence responsibility and the actions of the defendant's legal representatives is using the defendant's 11(b) rights as an offensive weapon. In addition, the defence's actions had not been consistent with a defendant who had been seeking a trial within a reasonable time. And, although some prejudice based on fading memories can be inferred by the delay in this proceeding, the defendant's memory did not appear to be affected in any significant way. And, as for Adilla Best's memory, which had been affected by the delay, Best had not been looking at the intersection in any event, but at her cellphone just before and at the moment the collision had occurred, and had also not observed where the defendant's vehicle had been in respect to the intersection before the collision had occurred.

[267] In addition, the delay in commencing or completing the trial has not been proven by the defendant on a balance of probabilities to have caused irremediable an