Court File and Parties

Court File No.: Brampton – 14-41310 Date: 2015-02-17

Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen Respondent

- and -

Peter Kielo Applicant

Counsel:

• M. Shanahan, Counsel for the Respondent
• B. Starkman, Counsel for the Applicant

Heard: February 10, 2015

Ruling on Section 11(b) Charter Application

Schreck J.:

[1] Introduction

On December 18, 2013, the Applicant, Peter Kielo, was charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit. His trial is scheduled to take place on February 24, 2015, a little over 14 months after he was charged. He has applied for a stay of proceedings on the basis that his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Charter has been infringed.

I. The Analytic Framework

[2] The factors to be considered on a s. 11(b) application are set out in R. v. Morin, [1992] 1 S.C.R. 771. They are (1) the length of the delay, (2) waiver of time periods, (3) the explanation for the delay and (4) prejudice. There is no issue that the overall delay in this case is of sufficient length to warrant inquiry and it is not suggested that there has been any waiver. The determination of this application therefore depends on the explanation for the delay and whether and to what extent there has been prejudice.

II. Chronology

[3] The Applicant was charged on December 18, 2013. His first appearance in set date court was on February 7, 2014, at which time disclosure was provided and the matter was adjourned to March 7, 2014. On that date, a trial date of October 21, 2014 was set. The Court was advised that counsel for the Applicant had earlier dates available in April and every month thereafter.

[4] On October 21, 2014, the parties appeared in court ready for trial. However, because of other matters on the docket the assigned trial judge was not in a position to commence the trial until 2:30 in the afternoon and the trial was estimated to take four hours. At that point, the parties inquired of the trial co-ordinator whether the trial would conclude more quickly if they began and then obtained a continuation date or if they obtained a new date on which to have the trial. They were advised that the latter option was preferable.

[5] In accordance with the usual procedure in this jurisdiction, when the parties attended the trial co-ordinator's office to select a new date, the trial co-ordinator completed a verification form so that the availability of the Court, the Crown and the defence would be clear in the event of a s. 11(b) application. Unfortunately, the form is not clear with respect to the Court's availability. According to that form, the earliest date offered by the Court was November 14, 2014. However, defence counsel was unavailable from that date until November 17, 2014 and the police witnesses were unavailable for all of November until December 8, 2014.

[6] What is not clear is whether the Court had available dates between November 14 and December 8. It appears that the Court had no dates to offer for the rest of December or January and the next date offered was February 2, 2015. Defence counsel was unavailable from that date until February 6, 2015. Again, it is unclear whether the Court had other available dates during that period. The next date the Court had available was February 11, but defence counsel was unavailable from then until February 24. Again, it is unknown whether the Court had other dates available during that period. All parties and the Court were available on February 24, 2015 so it was selected as the new trial date.

[7] For some reason, the form indicates that a Crown request for an adjournment was granted. However, it does not appear that any such adjournment request was ever made.

III. Attribution of the Delay

[8] The parties are in agreement that the period between December 18, 2013, when the Applicant was charged and March 7, 2014, when he set the first trial date, is properly characterized as part of the inherent time requirements of the case and therefore neutral time for the purposes of s. 11(b). In accordance with the dicta in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.) and R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177 (Ont. C.A.), the Applicant acknowledges that he would not have been ready to commence the trial at the time the date was set and that some additional time should be added to the inherent time requirements. He submits that a period of one month, which would represent the notice he would have had to give of the Charter application he intended to bring, is the appropriate period. Crown counsel does not take serious issue with this figure, although he suggests that it could be as high as six weeks. I am satisfied that defence counsel would have been in a position to conduct the trial within a month of setting the date. Thus, the period between December 18, 2013 and April 7, 2014, a period of approximately three months and three weeks, is neutral time.

[9] The parties also agree that the time between when the parties were ready for trial and the first trial date on October 21, 2014, a period of approximately six months and two weeks, is properly characterized as institutional delay.

[10] The real area of disagreement between the parties relates to the period between the first and second trial dates. Relying on R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, defence counsel submits that this entire period should be characterized as institutional delay because the need to set the second date was the result of a lack of institutional resources. Crown counsel disagrees. Relying on R. v. Lahiry, supra at paras. 67-69 and R. v. W.(A.J.), 2009 ONCA 661, 257 O.A.C. 11 at paras. 30-33, he submits that the periods of time during which the defence was unavailable should be counted as neutral time.

[11] R. v. W.(A.J.) certainly seems to support the Crown's position. In that case, Rosenberg J.A., writing for the Court, stated (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 at least, is institutional delay.

Appellant's counsel submits that the balance of the delay of 5 months should be considered neutral. He accepts that defence counsel could not be expected to hold his calendar open in the expectation that a trial will not proceed. Thus, the delay cannot be considered defence delay. However, he submits that equally, the system is not at fault; the system was ready to accommodate an earlier trial.

I am very sympathetic to the position of both the respondent and his counsel. They were ready and anxious to proceed to trial and through no fault of theirs the trial could not proceed. Further, defence counsel should be able to organize their affairs in reliance on schedules set by the court.

In my view, the answer to this dilemma is to closely examine the reasons for the resulting delay. In this case, the delay from June 4 to July 31 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, supra at para. 23.

[12] Defence counsel submits that this decision, as well as R. v. Lahiry which relies on it, is inconsistent with R. v. Godin, where Cromwell J., writing for the Court, stated (at para. 23):

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

[13] I do not agree that W.(A.J.) is inconsistent with Godin. Godin stands for the proposition that the unavailability of defence counsel in situations such as that in the case at bar should not be characterized as waiver or defence delay. This does not mean that it cannot in some circumstances be characterized as neutral. Whether it is will depend on the circumstances of the individual case. In any event, Godin was cited in W.(A.J.) and the Court of Appeal's interpretation of it is binding on me. As will be seen, however, the disagreement between the parties will ultimately have little impact on the outcome of this application.

[14] In the case at bar, the system was able to prioritize the case after the trial was not reached on October 21, 2014 and offered a new date of November 14, 2014. However, defence counsel was unavailable on that date until November 17 and the police witnesses were unavailable until December 8. Defence counsel was also unavailable from February 2 to February 6, 2015 and from February 11 to February 24, 2015. What is unclear on this record is whether the Court had any availability during those periods when defence counsel and/or the police witnesses did not.

[15] The record was similarly unclear with respect to some of the periods of time in R. v. W.(A.J.). With respect to those periods, Rosenberg J.A. held (at para. 34):

I take a different view of the period from July 31 to October 29, 2007. With the exception of this period, on all other occasions when the matter had to be re-scheduled, Crown counsel took care to put on the record dates when the trial could be accommodated but defence counsel was not available. However, during this period, neither Crown counsel nor the court made reference to any dates. In my view, the record is reasonably open to the inference that the system was not able to accommodate this case from July 31 until October 29, 2007. Given that the initial reason for the delay was institutional delay, the evidentiary burden was on the state to show the system was able to accommodate this trial: see Morin at p. 788. Thus, this 3 month period must be characterized as institutional delay.

[16] In my view, the same approach is warranted in this case. Given that the initial reason for the delay was institutional delay, the burden is on the state to show that the system was able to accommodate the trial. With the exceptions of three dates between October 21, 2014 and February 24, 2015, I am not satisfied that the system was able to accommodate the trial. In other words, the fact that defence counsel or the police witnesses were unavailable does not matter if no court dates were available, particularly where it was the lack of institutional resources which necessitated the need to re-schedule the trial date.

[17] Based on the foregoing, in my view the period between October 21, 2014 and February 24, 2015, a period of about four months, should be characterized as institutional delay with the exception of the three dates on which the Court was available and the parties were not. While these three days are properly characterized as neutral, they are ultimately negligible in the overall calculation.

[18] To summarize, the time periods should be attributed as follows:

Neutral: Three months and three weeks

Institutional: 10 months and two weeks

In R. v. Morin, it was held that the appropriate guideline for institutional delay at this level of court was eight to 10 months. There is authority suggesting that the lower end of that range, eight or nine months, is appropriate in this region: R. v. Rego, [2005] O.J. No. 4768 (C.A.) at para. 4; R. v. Ratneswaren, [2013] O.J. No. 5037 (S.C.J.) at para. 68; R. v. Purewal, [2014] O.J. No. 2824 (S.C.J.) at para. 138.

IV. Prejudice

[19] The Applicant swore an affidavit in which he deposed that the re-scheduling of the trial resulted in increased legal fees. He also suffered some loss of income as a result of having to appear in court. The Applicant deposes to suffering from stress as a result of the charges that has increased as time passed, especially after the first trial date on which the matter was not reached.

[20] While the Applicant's affidavit could be described as generic, I am prepared to find that he has suffered some prejudice. I draw this conclusion for two reasons. First, the Crown chose not to cross-examine the Applicant, leaving his evidence unchallenged. Second, the types of prejudice identified, increased stress and additional legal fees, are well-recognized as being associated with delays resulting from a trial not being reached: R. v. McMunn, 2008 ONCA 520, 233 C.C.C. (3d) 454 (Ont. C.A.) at paras. 19, 40; R. v. Ratneswaren, supra at para. 65; R. v. Kamboj, [2013] O.J. No. 5478 (C.J.) at paras. 37-43; R. v. Lalani, [2014] O.J. No. 108 (C.J.) at para. 70; R. v. Bahadoor, [2014] O.J. No. 1658 (C.J.) at para. 32; R. v. Jaramillo, [2002] O.J. No. 4435 (C.J.) at para. 35; R. v. Egerov, [2005] O.J. No. 6171 (C.J.) at para. 9; R. v. Lee, [2010] O.J. No. 1831 (C.J.) at para. 40.

V. Balancing

[21] This case is close to the line. While the overall institutional delay exceeds the applicable guidelines, it does not do so by much. Also, I am cognizant of the seriousness of drinking and driving offences: R. v. Lahiry, supra at para. 89. However, having carefully balanced the Applicant's interest in having a trial within a reasonable time with the societal interest in a trial on the merits, I have concluded that the Applicant's s. 11(b) Charter rights have been infringed. I reach this conclusion primarily for two reasons. First, there is evidence of actual prejudice. Second, this was not a complex case. While the defence has filed a Charter application, it may properly be characterized as "boilerplate" and there is nothing to distinguish this case from the majority of "over 80" prosecutions heard in the Ontario Court of Justice on a daily basis.

[22] The application is granted. The proceedings are stayed pursuant to s. 24(1) of the Charter.

Justice P.A. Schreck

Released: February 17, 2015