Court File and Parties

Date: April 27, 2015

Court File No.: 13-834

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Pyrek

Before: Justice Paul F. Monahan

Heard on: April 15, 2015

Reasons for Decision on the s. 11(b) Charter Application

Released on: April 27, 2015

Counsel:

Mr. C. Presswood — for the Crown

Mr. G. Henderson — for the defendant Mr. Michael Pyrek

MONAHAN J.:

Introduction

[1] By way of an information sworn October 9, 2012, Michael Pyrek is charged with dangerous operation of a motor vehicle on or about September 23, 2012 causing bodily harm to Carlee Kather contrary to s. 249(3) of the Criminal Code of Canada (the "Code"). He is further charged with having operated a motor vehicle while impaired by alcohol or a drug and thereby caused bodily harm to Carlee Kather contrary to s. 255(2) of the Code. Finally, he is charged with having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood and did while operating a motor vehicle cause an accident resulting in bodily harm to Carlee Kather contrary to s. 255(2.1) of the Code. These are all straight indictable offences and Mr. Pyrek has elected to be tried in the Ontario Court of Justice.

[2] Mr. Pyrek brings this application to stay the proceedings on the basis that his right under s. 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") to be tried within a reasonable time has been violated.

[3] Like many s. 11(b) Charter applications, this case involves a trial that did not proceed on the originally scheduled trial date. The trial date was adjourned and a further trial date needed to be set. A second trial date is now scheduled to proceed almost six months after the first trial date. There is a detailed legal framework and analysis which must be followed in order to decide this matter but one of the key issues on this application is how the Court should treat the six month delay between the two trial dates and, in particular, whether it should be treated as Crown delay, defence delay, institutional delay or part of the inherent time requirements of the case, or some combination of one or more of the foregoing.

[4] Mr. Pyrek swore an affidavit on the s. 11(b) application and he was cross-examined before me. An Application Record containing the transcripts of all of the court attendances in this case was served and filed. In addition, certain facts were agreed between the Crown and defence.

[5] It is alleged that the accused was involved in a single motor vehicle accident on September 23, 2012. He provided one breath sample but due to internal bleeding he was unable to provide a further breath sample. He was hospitalized for more than six weeks with a broken tibia and fibula. A passenger in the vehicle, Ms. Carlee Kather also, apparently and allegedly, suffered injuries.

[6] In addition to the criminal charges laid October 9, 2012, Mr. Pyrek is a defendant in a civil lawsuit brought by Ms. Kather in which she claims general and special damages of $1 million. The claim was issued in April 2014 and examinations for discovery in the civil case are scheduled for July 2015.

[7] I heard the s. 11(b) application for most of the day on April 15, 2015. On April 16, 2015, I advised the parties that after careful consideration I was dismissing the application for written reasons to follow at a later date. These are my written reasons for decision dismissing the application on the basis that the accused's right under s. 11(b) of the Charter has not been violated.

Legal Framework

[8] The Supreme Court of Canada in R. v. Morin confirmed the well established legal test for a s. 11(b) Charter application. The accused must show a breach of s. 11(b) on the balance of probabilities. The Court must consider the following four factors:

(i) the overall length of the delay;

(ii) whether the accused has waived any of the delay;

(iii) the reasons for delay; and

(iv) any prejudice to the accused.

[9] The Court must make findings with respect to the above four factors and then the Court must undertake a balancing analysis wherein the Court considers whether the delay is unreasonable, having regard to the interests of the accused, including any actual or inferred prejudice suffered, and society's interest in having the matter tried on the merits. Before staying the charges, the Court must be satisfied that the interests of the accused and society in a prompt trial outweigh the interests of society in bringing the accused to trial.

[10] A guideline of 8 to 10 months is to be used by provincial courts to assess institutional delay, but deviations of several months in either direction can be justified, depending upon the presence or absence of prejudice. The Ontario Court of Appeal has suggested that the guideline for a straightforward case in the Region of Peel is 8 to 9 months. In another case, the Supreme Court of Canada indicated on the facts of that case that the lower end of the Morin guidelines should apply in Peel. I do not interpret these cases as permanently adjusting the Morin guidelines in all cases in Peel. Rather, I interpret these cases as indicating that for a straightforward case in Peel, the lower end of the guidelines is a desirable objective. The Courts have also made it clear that the guidelines are not limitation periods.

[11] Prejudice can be actual or inferred. Inferred prejudice can result from a prolonged delay. As the Supreme Court of Canada said in Morin, "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."

[12] Prejudice will not usually be inferred unless the delay is "substantially longer than can be justified on any acceptable basis". Moreover, prejudice which results from the inherent time requirements of the case or the actions of the accused is to be accorded no weight.

[13] It is the Crown that has the obligation to bring the accused to trial. However, inaction by an accused may be considered when assessing the degree of prejudice. In some circumstances, it may be found that the accused is "content with the pace" of the litigation and this can undermine a claim to prejudice.

[14] A considerable body of law has developed around the adjournment of scheduled trial dates as well as continuation dates required when a trial starts but cannot be completed. The Court of Appeal in R. v. Tran approved of the following passage from Justice Code's judgment in R. v. Lahiry:

These authorities hold that the case must be given priority in the system and that the delays resulting from rescheduling a trial date will generally be treated as institutional, or as part of the inherent time requirements, or a combination of both, depending on the circumstances.

[15] Once a trial has started but additional court time is needed to complete the matter, that additional court time can be treated as part of the inherent time requirements of the case. This will not necessarily always be the case and the delay may also be attributable to institutional, Crown or defence delay. In particular, the circumstances of the case need to be considered and, when considering the scheduling of trial and continuation dates defence counsel are not required to hold themselves "in a state of perpetual availability". In dealing with continuation dates, there will be cases where the institutional delay "clock will stop" on the first date offered by the Court for which the defence is not available and other cases where it will not stop on the first date offered, particularly where only one date is offered.

[16] Turning then to an analysis of the four factors:

(i) The Overall Period of Delay

[17] In this case the overall period of delay runs from the time the information was sworn on October 9, 2012 until the date set for trial is scheduled to complete on May 12, 2015, a period of approximately 31 months. I note that the first day of the second trial is scheduled to commence on April 27, 2015 and to continue for a total of four days on April 28, 30 and May 12, 2015. The period of 31 months of delay requires further examination and consideration.

(ii) Whether the Accused Has Waived Any of the Delay

[18] The accused expressly waived the requirements of s. 11(b) on at least two occasions. Those two waivers came during the period from June 11, 2013 through October 2, 2013. The defence was pursuing the possibility of resolution during that time and stated on the record that it was waiving s. 11(b) to do so. This was a total of 113 days (approximately 3.7 months).

(iii) The Reasons for the Delay

[19] Under this heading, the Court must make findings with respect to the reasons for the delay. The burden is on the accused on a s. 11(b) application to prove the reasons for the individual periods of delay. The Court must examine each period of delay and determine for each such period the reasons for the delay categorized as follows:

a) the inherent time requirements of the case which are considered to be neutral;

b) the actions of the accused;

c) the actions of the Crown;

d) limits on institutional resources; and

e) other reasons for the delay.

[20] The information was sworn in this matter on October 9, 2012. A first trial date was set on December 11, 2013, approximately 14 months earlier. The defence does not take the position that any of that time is institutional delay or Crown delay. The defence submits that all of the time from October 9, 2012 through to the setting of the trial date on December 11, 2013 was either neutral intake time or delays sought at the request of the defence. The Crown agrees with this position and the Court, having reviewed the transcripts of all of the court attendances during that time, accepts the submissions of the parties on this point. The detailed breakdown of the time from the swearing of the information on October 9, 2012 to the setting of the trial date on December 11, 2013 is set out at tab 4 of the Mr. Pyrek's Application record and I accept the submissions of the parties that the attribution of responsibilities by Mr. Pyrek during this time period are fair and appropriate.

[21] It is noteworthy that during the first approximately 14 months, both parties agree, and the Court finds, that: (i) there was approximately 8.5 months of neutral intake time (ii) there were 113 days (approximately 3.7 months) of express s. 11(b) waiver; (iii) there were two occasions when neither the defendant nor his counsel showed up so that discretionary bench warrants were issued and later rescinded with total time associated with the discretionary bench warrants being approximately 28 days (defence delay here is approximately 0.9 months); and (iv) there was approximately 1 further month of defence delay.

[22] By October 2, 2013, the accused had replaced his first counsel with new counsel. At that time, new counsel acknowledged on the record that the matter had been on a "resolution" track but that Mr. Pyrek was now wishing to proceed with trial. That led to a judicial pretrial and ultimately the setting of a trial date on December 11, 2013. I do note that there were outstanding disclosure issues by the time that new counsel became involved. Having said that and as indicated above, the defence does not take the position that there was any Crown delay associated with the first 14 months of the litigation nor do I find any. I note these points in particular as I think that they need to be considered when assessing prejudice.

[23] On December 11, 2013 a trial date was set for four days on November 5, 6, 7 and 13, 2013. It was apparently agreed by both counsel and the pretrial judge that four days would be necessary to try the case. Crown counsel advised on the s. 11(b) application that there would likely be 10 to 12 witnesses from the Crown's perspective alone including an expert toxicology witness who would offer opinion evidence on the read back values associated with a breath sample and blood samples. The number of Crown witnesses is said to include four hospital lay witnesses on the blood sample evidence.

December 11, 2013 to November 5, 2014

[24] The period of time from the setting of the trial date on December 11, 2013 through to the first day of trial November 5, 2014 is 329 days or approximately 11 months.

[25] No mention was made on the record at the time the trial date was set of defence counsel's availability to start and complete a four day trial. There was no direct evidence from defence counsel on the record on the s. 11(b) application as to the timing of his availability to prepare for and conduct a four day trial. However, an affidavit from defence counsel's legal assistant was tendered on the s. 11(b) application in which she put forward defence's counsel's schedule. This was not counsel's actual schedule but was said to be a "reconstruction" of defence counsel's availability. The reconstructed calendar shows defence counsel availability during the weeks of January 6, 2014 and January 27, 2014 as well as a clear week February 24, 2014. There are other dates available on the calendar that might have been pieced together to come up with four days. I note as well that it was not until January 3, 2015 that Mr. Pyrek formally elected to be tried in the Ontario Court of Justice.

[26] Counsel for the defence on the s. 11(b) application submitted that something in the range of 30 to 60 days could fairly be deducted for preparation time. In light of this submission and considering the usual requirement for 30 days' notice of a Charter application; my review and consideration of the calendar of defence counsel including the fact that it is a reconstructed rather than an actual calendar; the fact that Mr. Pyrek did not formally elect to be tried in the Ontario Court of Justice until January 3, 2015; and the need to address expert evidence issues as part of trial preparation, I think it would be fair to deduct 60 days for preparation time.

[27] Accordingly, there was institutional delay of approximately 9 months between the setting of the trial date and the first trial date (approximately 11 months less 2 months preparation time).

November 5, 2014 to May 12, 2015 (the Last Day of the Second Set of Trial Dates)

[28] The trial scheduled to proceed for four days on November 5, 6, 7 and 13, 2014 was adjourned on November 5, 2014. It is important to understand why the case did not proceed on the originally scheduled trial dates.

[29] As indicated in the introduction to these reasons, when Mr. Pyrek was involved in the accident he was only able to give one breath sample due to the fact that he suffered internal injuries. Where breath samples are sought, normally two breath samples are obtained. In this case, a warrant was obtained to take blood samples from Mr. Pyrek and such samples were taken.

[30] As of the time of the first trial, the Crown had in its possession three expert reports as follows:

(I) a report dated November 1, 2012 which was disclosed to the defence on December 7, 2012 and which established that at the time the blood was taken from Mr. Pyrek, the concentration in Mr. Pyrek's blood was the equivalent of 107 mg of alcohol in 100 mL of blood. There was no opinion in this report giving a "read back" opinion as to the blood alcohol concentration as of the time of the alleged driving. Therefore, in and of itself, this report was of limited value to the Crown;

(II) a report dated November 15, 2012 which gave a read back opinion based on the blood alcohol testing. The read back was to the time of driving and estimated a range from 107 to 137 mg of alcohol in 100 mL of blood. This report was not disclosed to the defence until October 29 or 30, 2014, almost 2 years after it was apparently obtained by the police. Although the police had it, Crown counsel apparently did not have this report until about the same time that it was provided to defence counsel (October 29 or 30, 2014). It is this report that was at the heart of the adjournment of the November 5, 2014 trial date; and

(III) a toxicologist report dated November 8, 2013 which was provided to the defence November 19, 2013. It provides a read back to the alleged time of driving based on the single breath sample. In particular, it discloses an opinion that the blood alcohol concentration in the accused's blood as of the time of driving ranged from 75 to 150 milligrams of alcohol in 100 mL of blood. Accordingly, this report offered an opinion that "straddled" the over 80 limit as of the time of driving.

[31] On November 2, 2014, defence counsel met with Mr. Pyrek and told him that they should seek an adjournment of the trial date as the defence needed to be "recalibrated". On November 5, 2014, the parties attended before the scheduled trial judge. Defence counsel explained about the late disclosure of the November 15, 2012 read back report based on the blood work. Defence counsel took the position that this report had "changed the entire landscape of the case". Defence counsel indicated that he would now have to bring a Charter application to exclude the blood samples.

[32] Crown counsel took the position before the proposed trial judge that the read back report was of no great surprise and that defence counsel had previously indicated that they wished to bring a section 8 Charter application with respect to the blood samples. Defence counsel acknowledged that it had long before anticipated bringing a section 8 Charter application with respect to the blood samples and had advised the Crown accordingly but that it had changed its position. The defence plan to bring a section 8 Charter application was predicated on the assumption that there would be a read back report based on the blood samples tendered by the Crown. As no read back report was delivered by the Crown (prior to October 29 or 30, 2014), no section 8 Charter application was brought by the defence as of the time of the first trial date.

[33] The entire attendance before the scheduled trial judge on November 5, 2014 proceeded on the basis that the Court had no discretion but to grant an adjournment of the entire trial because of the provisions of s. 657.3(4) of the Code. The scheduled trial judge stated that "I have no discretion" but to grant an adjournment of the entire four day trial. Both Crown counsel and defence counsel appeared to accept this observation. I wish to be clear that I am in no way critical of either counsel or the presiding trial judge. Having said that, I believe that the scheduled trial judge and both counsel were all in error when they proceeded on the basis that an adjournment of the entire trial date was mandatory if defence counsel requested it.

[34] This very issue was dealt with by Justice Durno in R. v. Ratneswaran. That case was not before the presiding judge on November 5, 2014. In Ratneswaran, Justice Durno held that the provisions of section 657.3 do not mandate an adjournment of the entire trial where there is the late delivery of an expert's report. In order to understand Justice Durno's ruling in Ratneswaran, it is necessary to set out the relevant parts of s. 657.3. Section 657.3 provides, in part, as follows:

(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,

(a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by

(a) (i) the name of the proposed witness,

(b) (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and

(c) (iii) a statement of the qualifications of the proposed witness as an expert;

(b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties

(a) (i) a copy of the report, if any, prepared by the proposed witness for the case, and

(b) (ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and

(c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).

(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,

(a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;

(b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and

(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness's testimony, unless the court considers it inappropriate to do so.

(5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following:

(a) adjourn the proceedings;

(b) order that further particulars be given of the evidence of the proposed witness; and

(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness's testimony.

(emphasis added)

[35] In the case of R. v. Ratneswaran, the circumstances were similar to the case at bar. There was the late disclosure by the Crown of a toxicologist report. Both the Crown and defence counsel and the presiding Ontario Court of Justice judge proceeded on the basis that an adjournment of the entire trial date was mandatory under s. 657.3(4). On appeal, Justice Durno held that this interpretation of s. 657.3(4) was incorrect and that s. 657.3 provides for a flexible approach for trial judges dealing with the late delivery of an expert's report. Justice Durno stated that in enacting s. 657.3(4), Parliament was addressing the situation where an expert witness is actually called to testify during the trial without proper notice being given. Parliament was not dealing with the situation with what occurs at the outset of a trial. Justice Durno noted the Ontario Court of Appeal ruling in R. v. Horan to the effect that the trial court does not have the power under s. 657.3 to refuse to permit an expert witness to testify. Section 657.3(4) deals with the circumstance in which an expert witness is actually called to testify, not one in which the parties are scheduled to start a trial and the Crown has not been timely in the service of an expert's report.

[36] Justice Durno stated in Ratneswaran that "there is no automatic right to an adjournment of the entire trial where a party seeking to call an expert has not served the s. 657.3 notice in a timely manner". Justice Durno noted that if that proposition were true, then the late delivery of an expert's report could be used to require a mandatory adjournment of a six month trial regardless of the circumstances. I note that Justice Durno's interpretation of s. 657.3 is directly contrary to the position taken by the scheduled trial judge and counsel in the case at bar and that Justice Durno's decision was binding on the Court and the parties in this case. I repeat that the Ratneswaran case was not before the Court on November 5, 2014 through no fault of the parties, their counsel or the Court.

[37] Justice Durno indicated that what should have occurred in Ratneswaran was that the non-expert fact witnesses for the crown should have been called to give evidence. In addition, the expert could potentially have given his evidence in chief after which time the defence counsel could have sought an adjournment to prepare for cross-examination. There was no need to adjourn the entire trial. Justice Durno observed that if the case had proceeded in this manner, a shorter time would have been needed for a continuation to complete the trial.

[38] In Ratneswaran, the Court was only dealing with a one day trial which had to be adjourned a total of one month (four weeks) because of the late disclosure. On an s. 11(b) application in that case, Justice Durno, relying on the error made by both counsel and the trial judge in their approach to s. 657.3, allocated one week of the four weeks' delay to the defence and three weeks to the Crown.

[39] Turning to the case at bar, the circumstances that prevailed on November 5, 2014 which led to the adjournment may be briefly summarized as follows:

(a) Crown counsel delivered the November 15, 2012 expert report to the defence on October 29 or 30, 2014. While it had been previously in the possession of the police, Crown counsel only obtained it at about the same time that it was disclosed to the defence;

(b) No explanation was offered by the Crown for the late delivery of the report. It would appear to me to be a case of Crown negligence rather than deliberate nondisclosure. I do not direct this observation to counsel for the Crown on the November 5, 2014 attendance or the s. 11(b) application. I do not know who within the Peel Crown's office made the error and it does not matter;

(c) The report was significant to both the Crown and the defence although I disagree with defence counsel's submissions made on November 5, 2014 that the report "changed the entire landscape of the case". There is no doubt that the report was important. At a minimum, the defence would need an opportunity to consult with their own expert regarding the new report. They might also wish to call their own expert as a witness at trial and a section 8 Charter application would likely need to be brought;

(d) At about the time of the judicial pretrial, the defence had anticipated that a report in the nature of the November 15, 2012 report would be served by the Crown at some point and that, as a result, the defence thought that a section 8 Charter application would very likely need to be brought by the defence in respect of the blood samples. The only point of note here is that the defence was aware of the issue dealt with in the November 15, 2012 report and had thought it would come much earlier than it did. Nevertheless, there is no doubt in my mind that this report was important and the defence was surprised to receive it when they did on October 29 or 30, 2014;

(e) After the receipt of the report on October 29 or 30, 2014, the defence decided by no later than November 2, 2014 to seek an adjournment of the entire trial. This is apparent from the testimony of Mr. Pyrek;

(f) It is further apparent that defence counsel was prepared to proceed on November 5, 2014 if the Crown would abandon the over 80 charge. The Crown was not prepared to proceed on that basis. It is also apparent that the Crown considered the possibility of doing some witnesses that day but apparently did not wish to take the chance of having to call a witness back on the second day; and

(g) Notwithstanding the back and forth on the transcript of the proceedings of November 5, 2014 between the Crown and the defence, it is clear to me that at the heart of the adjournment which was ultimately granted was a misapprehension by the scheduled trial judge and both counsel that an adjournment was mandatory (if requested by the defence) when it was not. Further, the adjournment of the entire trial was only granted when it was confirmed by defence counsel on November 5, 2014 that the defence was seeking an adjournment.

[40] Four days of trial time is a significant amount of time in the Ontario Court of Justice. It was common ground in argument on the s. 11(b) application that impaired driving type cases often (although not invariably) take only one to two days of trial time. In my view, both counsel for the Crown and the defence and the parties themselves, having held four days of trial time for 11 months, were obliged to use that time appropriately notwithstanding the Crown error in not disclosing the November 15, 2012 report in a timely way. The trial management powers of the trial judge could have and should have been used to ensure that much of the trial not involving the blood samples could have been conducted on the four days that were set aside for trial November 5, 6, 7 and November 13, 2014. It is even conceivable that the defence might have been in a position to cross-examine the Crown's expert on November 13, some two weeks after it had received the expert's report. Alternatively, if this was not reasonably possible from the defence's perspective, a later date could have been obtained to address the expert evidence of the Crown and the defence, if any.

[41] The use of the first scheduled trial dates in the manner proposed above is precisely the type of approach that Justice Durno said should have been taken in Ratneswaran. If the dates from November 5, 6, 7 and 13, 2014 had been used as I have suggested then the trial could have been completed in another day or two at most once the defence had had an opportunity to properly consider and respond to the expert report of November 15, 2012 and, if so instructed, to deliver a section 8 Charter application. The time for service of the Charter application could have been abridged if necessary.

[42] When the adjournment was granted, the parties attended the trial coordinator's office and sought another four days for the trial resulting in new trial dates of April 27, 28, 30 and May 12, 2015. It is important to note that the Court and the Crown were available to continue the trial on December 3, 4, and 12, 2014 but that defence counsel was unavailable. I appreciate that these dates (December 3, 4 and 12) were very close in time to the adjourned trial date of November 5, 2014 and I also appreciate that there were only three days (rather than four) offered and that a fourth day was only offered for April 27, 2015. I also understand and appreciate that defence counsel are not obliged to keep their calendar in a perpetual state of readiness to take on adjourned trial dates. Having said that, the Court and the Crown are obliged to expedite a trial which does not get reached or completed on a scheduled trial date. Where the defence seeks a remedy for a Crown error that involves vacating four days of trial time and contributes to an incorrect ruling by the Court as concerns s. 657.3 (together with the Crown and the Court), it is a factor that can be considered that the defence was offered another three days of trial time for within approximately one month's time. Given that Mr. Pyrek was apparently keen to get to trial and given his ongoing stress associated with the case and given that the defence sought the adjournment to vacate the four days of trial time, it is not unreasonable to think that defence counsel might have had to attempt to adjust his schedule to conduct the trial or part of the trial on one or more of the December dates offered.

[43] In my view, the availability of three days of court time to conduct the trial of this matter on a rescheduled basis in December 2014 is a factor to be considered when determining how to allocate the six months of delay to May 12, 2015 as among the Crown, the defence, the institution and the possibility of inherent delay. It is also a factor to be considered when assessing prejudice. I note, of course, that the Court should not lose sight of the fact that the underlying source of the problem which brought about the circumstances which prevailed on November 5, 2014 was the Crown's negligence. I note as well that I am not prepared to say that "the clock" should simply stop running on December 4, 11 or 12 when defence counsel was not available. I say only that it is one factor to be considered in addressing an allocation of the six months of delay and nothing more.

[44] Ultimately, a trial date starting on April 27, 2015 was offered and I note that this was just less than six months after the adjourned trial date of November 5, 2014, which in my view establishes (together with the December 2014 dates offered) that the institution gave priority to this matter when it was adjourned. In this regard, I note that a trial date involving four trial days obtained within six months is a relatively early trial date given that 11 months were required the first time a trial date was set in this matter.

[45] As indicated earlier, delays resulting from a rescheduled trial date or a continuation date can be treated as attributable to the Crown, the defence, the institution or treated as part of the inherent time requirements. Every case must, of course, be decided on its own facts. In R. v. Tran, the Ontario Court of Appeal dealt with a circumstance where a trial was not completed on the first date and had to go over four months for a continuation date. The originally scheduled trial was not completed because defence counsel had underestimated the trial time. When the trial was not completed, the Court offered three days within two weeks of the original trial date but defence counsel was unavailable. As a result, in Tran the Court of Appeal found that half of the four month adjournment period should be attributable to the inherent time requirements of the case and half should be allocated to institutional delay.

[46] In my view, the approximate six month time period from November 5, 2014, to the scheduled end of the trial on May 12, 2015, should be allocated 2.5 months to the Crown, 1.5 months to the defence and 2.0 months to inherent delay. I think this results in a fair allocation of this six month timeframe and reasonably takes into account all of the circumstances including that at the root of the adjournment lies the negligence of the Crown; that there was shared responsibility as between the Crown, the defence and the Court in misapprehending the provisions of s. 657.3(4); that some portion of the originally scheduled four days of trial should have been used for the non-expert witnesses (and, perhaps, for some of the expert testimony from the Crown); and that the Court had three days of availability in December 2014 but defence counsel was not available.

Total Institutional/Crown/Defence Delay

[47] I have found that there was 9 months of institutional delay after the setting of the first trial date through to the scheduled first trial date. I have concluded that the total institutional delay and Crown delay after the setting the trial date through to the end of the scheduled trial date on May 12, 2015 is approximately 11.5 months. A further 1.5 months during this same time period is defence delay.

(iv) Prejudice

[48] As indicated by the Supreme Court of Canada in R. v. Morin, deviations of several months from the guidelines in either direction can be justified by the presence or absence of prejudice. Prejudice may take the form of restrictions on liberty, undermining the accused's ability to get a fair trial or interference with the security interests of the person.

[49] The burden is on Mr. Pyrek to establish prejudice on a balance of probabilities. Prejudice can be actual or inferred. As indicated above, prejudice will generally not be inferred except where there is a very long period of delay.

[50] In this case, the defence does not take the position that the delay has implications for the fair trial interests of Mr. Pyrek although they do suggest his memory may be fading. In my view, the principal prejudice which Mr. Pyrek alleges in this case relates to his security of the person.

[51] Mr. Pyrek swore an affidavit and gave oral testimony on the s. 11(b) application and was subject to cross-examination. He testified to a number of alleged areas of prejudice which he claimed were associated with the delay as follows:

(a) prejudice related to his school studies;

(b) prejudice associated with the stress and anxiety relating to the delay in the charges and the civil suit; and

(c) increased legal fees;

[52] I will outline the position of Mr. Pyrek on each area of alleged prejudice and the Court's determination with respect to each claim.

(a) Prejudice Related to His School Studies

[53] Mr. Pyrek indicates that he is a student at the University of Ontario Institute of Technology. He says that during the time that the charges remained outstanding there has been a considerable drop in his grades. As of the winter of 2015, he is only taking three courses and is considered a part-time student as he says he can no longer manage a full course load. Mr. Pyrek attributes his sliding grades to the stress and anxiety resulting from the outstanding charges and the delays in reaching trial.

[54] Mr. Pyrek did very well academically in 2013 (although his grades were down slightly towards the end of the year). However, in 2014 he failed three courses.

[55] I am sympathetic to the problems that Mr. Pyrek's has had at school. However, I am unable to say on a balance of probabilities that his grades have declined due to the delay in the hearing of the charges (or, for that matter, due to the charges themselves). It is apparent that after the accident September 2012 and after the charges were laid, Mr. Pyrek did very well at school throughout all of 2013 which suggests that the charges and associated delay were not a problem for the first 18 months after the charges. He excelled at school during this time. The defence would submit that the subsequent decline was due to the ongoing stress associated with the delay in the charges but I don't think that link can fairly be made on the record before the Court on the balance of probabilities. There are many reasons why Mr. Pyrek's grades could have declined, and it has not been established in my view that the decline in his grades is caused by the delay involved in bringing this matter to trial.

Prejudice Associated with the Stress and Anxiety Relating to the Delay in the Charges and the Civil Suit

[56] Mr. Pyrek testified to the fact that he was diagnosed with ADHD in or about 2009 or 2010 (prior to the accident). For a time prior to the accident he was on medications although it is not apparent precisely when. In April 2014, he began to take medication again and it appears that he is still on that medication. He states in his affidavit that "I would say this is helpful [the taking of the medication], but I would not say my treatment has been entirely successful". This implies to me that he has had some success in managing his stress and anxiety through the use of medication.

[57] I do accept that Mr. Pyrek suffers from anxiety and depression and I have no doubt that he has anxiety and depression over the charges and the delay in the charges being dealt with. However, it is my view that the bulk of the anxiety flows from the charges themselves. For example, while Mr. Pyrek says in his affidavit that the stress and anxiety associated with the charges and the delays has caused a slide in his grades, he also states "I think about the charges daily. I think about the possibility of going to jail." In my view, these observations point primarily towards anxiety related to the charges themselves rather than the delay. I do accept that there is some anxiety associated with the ongoing nature of the case and the associated delays. It is difficult for any person to face criminal charges and I have no doubt that for Mr. Pyrek the longer the case goes on, the more difficult it is for him.

[58] I also accept that there is stress associated with the civil claim. Having said that, I do not accept that the delay associated with the criminal case can be said to have led to stress, anxiety and prejudice with respect to the civil claim. In cross-examination, Mr. Pyrek did acknowledge that his insurance company told him that they would deal with the civil case but Mr. Pyrek has done his own research on the Internet and is concerned that if he is convicted in the criminal matter he may lose his insurance. This is not what his insurer has said to him so his stress on this point is connected with something he read on the Internet rather than necessarily the reality of what will happen with the civil case if he were to be convicted criminally. However, I have no doubt that a criminal conviction would not be of assistance to him in defending the civil claim.

[59] The connection between the civil claim and criminal claim is somewhat complex. If Mr. Pyrek were to be convicted criminally, that would very likely lead to civil liability which might cause the civil matter to proceed more quickly. Having said that, the plaintiff's damages, if any, will not be affected by whether there is criminal liability or not. If there is no criminal liability, that does not preclude civil liability and may cause the civil liability claim to be more complex and to take more time. Further, I do not know what position his insurance company will take if he is convicted in the criminal case.

[60] The simple fact is this: Mr. Pyrek was involved in an accident and he faces both civil and criminal proceedings as a result. Those two proceedings and the uncertainty associated with them is no doubt stressful for him. However, I find that the stress associated with the civil claim largely relates to the civil claim itself and the accident itself and not the delay associated with the hearing of the criminal charges. I make this finding fully aware of the evidence that the discoveries in the civil case have apparently been delayed pending the criminal case.

[61] I note as well that at no time in any of the 18 court appearances did the defence assert ongoing prejudice being suffered by the accused. S. 11(b) concerns were only raised by the Court (rather than defence counsel) when the original trial dates were set in December 2013 and when the matter was adjourned on November 5, 2014.

[62] In summary on this point I accept that Mr. Pyrek had a pre-existing condition of ADHD and that he suffers from anxiety and depression. Treatment with medication has been somewhat but not entirely successful. There is increased anxiety associated with the charges and, to some extent, with the delay associated with the charges. To this extent, there is some actual prejudice established.

(e) Increased Legal Fees

[63] Mr. Pyrek claims prejudice through increased legal fees associated with the adjourned trial date. I note that Mr. Pyrek indicated in his affidavit that at one time he had to retain defence counsel for a four day trial but now he was having to retain counsel for an eight day trial. He acknowledged in cross-examination that this assertion was incorrect. Defence counsel has still been retained for a four-day trial. The first four day trial was adjourned and there is new four-day trial scheduled. The evidence on the increased legal fees is somewhat vague but it appears to be that Mr. Pyrek has a fee cap arrangement with defence counsel. He had hoped to come under the fee cap if the first trial had finished in under four days. Given that the matter has gone over to a second set of four trial days, he has been advised that he will hit the cap on fees agreed to.

[64] It may well be that there will be no increase in fees as the cap may have been reached even if the trial date has not been adjourned. It seems to me that all that can be said is that there may be increased legal fees but even if there are increased fees they will be limited as defence counsel is still operating under a cap. Accordingly, I find that the increased legal fees have not been proven on a balance of probabilities.

Summary on Prejudice

[65] To summarize, I accept that there is some prejudice associated with the anxiety of the ongoing criminal litigation. However, this is where the issue of the defendant's conduct must also be taken into consideration. As indicated, during the first 14 months of the litigation a significant amount of the delay (approximately 5.6 months) was attributable to the defence. It is true that during much of this time the defence was seeking a possible resolution and that is commendable but in my view an excessive amount of time was spent adjourning the matter from the defence's perspective. In addition, as concerns the November 5, 2014 adjournment, I have attributed another 1.5 months of delay to the defence. Accordingly, while I consider that there has been some actual prejudice associated with the delays in hearing the case in my view that prejudice is significantly undermined by the defendant's own conduct and I include in this fact that the defence never advised the Court of concerns about the delay and the prejudice being suffered by Mr. Pyrek.

[66] While I have found some actual prejudice in this case, I am not prepared to infer prejudice in this case. The test for inferred prejudice in the case law which requires a delay "substantially longer than can be justified on any acceptable basis". Eleven and a half months institutional and Crown delay in this case does not meet that standard.

Balancing

[67] As indicated above, the Court must undertake a balancing analysis wherein it considers whether the delay is unreasonable, having regard to the interests of the accused, including any actual or inferred prejudice suffered and society's interest in having the matter tried on the merits. Before staying the charges, the Court must be satisfied that the interests of the accused and society in a prompt trial outweigh the interests of society in bringing the accused to a trial on the merits.

[68] I note that in R. v. Kovacs-Tatar, the Ontario Court of Appeal dealt with an s. 11(b) Charter application in a sexual assault case. In that case, there was an overall delay of 16 months and 12 months institutional delay. The trial judge had entered a stay of proceedings for a violation of s. 11(b) of the Charter. The summary conviction appeal judge lifted the stay and ordered the matter to proceed to trial. The Court of Appeal dismissed the appeal from the summary conviction appeal judge, thereby directing that the matter proceed to trial. In the course of its reasons in Kovacs-Tatar, the Court of Appeal stated "in any event, the 12 months of institutional delay does not greatly exceed the 8 to 10 month guideline" (emphasis added). In the same judgment, the Court of Appeal stated "the institutional delay of 12 months exceeded, but just barely, the 8 to 10 month guideline set out in Morin" (emphasis added). I recognize, of course, that the facts of a case matter and in another case which involved a drinking and driving charge, the Ontario Court of Appeal said in an endorsement that "twelve months is well outside the 8 to 9 month guideline for a straightforward case in Peel" and the stay of proceedings ordered by the provincial court judge in that case was upheld. In my view, the important point of emphasis in this latter case was the statement that it was a "straightforward case."

[69] The case at bar is not a straightforward drinking and driving case for number of reasons. First, unlike the usual impaired and over 80 charges in the Ontario Court of Justice which are hybrid offences, the impaired and over 80 charges here include a bodily harm element and are straight indictable offences. There is also a charge of dangerous operation of a motor vehicle causing bodily harm, also a straight indictable offence. Second, it is anticipated that the Crown will call 10 to 12 police and civilian witnesses. Third, there will be Charter issues raised by the defence which, while quite common in these cases, somewhat complicates the case further. Fourth, the Crown will call an expert and the defence may as well. It is expected that the expert evidence will cover both breath and blood evidence. Fifth, the mere fact that the trial is scheduled to last four days indicates that this is not a simple straightforward case. As I indicated earlier, it was common ground on the s. 11(b) application that drinking and driving cases in the Ontario Court of Justice often last only one to two days. In my view, on the spectrum of drinking and driving cases, this case is towards the more complicated end. As Justice Code pointed out in Lahiry, drinking and driving cases have increased in complexity since the Supreme Court of Canada's decision in Morin. In my view, this factor favours some flexibility in the application of the Morin guidelines.

[70] There is no doubt that the Crown was negligent in its failure to disclose the November 15, 2012 report and there is no doubt that the defence would need time to respond to consider the report and respond to it in potentially a number of ways. The Crown's negligence is at the root of the s. 11(b) application. I also accept and agree with the proposition that delay that results from Crown failure is a matter of particular concern and should be given more weight in favour of the defence than mere institutional delay.

[71] Notwithstanding the error by the Crown which was significant, both parties and counsel had an obligation to use the four days of trial time they had held for almost a year. I note that the last day for trial (November 13, 2014) was 14 days after the defence received the expert report previously undisclosed. I am not saying that the defence would have to be in a position to address the expert blood evidence within 14 days after receiving a report but it is something that could reasonably have been canvassed in determining what could be done with the four days of trial time (in addition to hearing the fact witnesses).

[72] In my view, the remedy sought by the defence on November 5, 2014, namely the vacating of four days of trial time which remedy was ultimately granted by the Court, was disproportionate to the failure of the Crown to deliver the expert report in a timely manner. The complete adjournment of the trial was unnecessary.

[73] I repeat the point made earlier that the defence has no obligation to move the matter along. However, the defence's failure to do so during the first 14 months suggests that it was somewhat content with the pace of the litigation. Similarly, the defence's approach to the adjournment on November 5 suggests to me that the defence was not concerned with getting the case on for trial as soon as possible. Finally, in the 18 court attendances over the course of this proceeding, never once did the defence state that Mr. Pyrek was suffering prejudice due to the delay. This observation and the circumstances of this case generally, undermine the defence's claim to prejudice and its position that the delay was unreasonable.

[74] Society has a strong interest in a trial on the merits. Drinking and driving cases particularly those involving allegations of bodily harm are serious cases.

[75] Whether one applies the 8 to 10 month guideline from R. v. Morin or the 8 to 9 month guideline from R. v. Rego, the analysis and result is the same. These are guidelines, not limitation periods. In all of the circumstances, including a consideration of the prejudice suffered by Mr. Pyrek, the conduct of the Crown, the conduct of the defence and society's interest in having a trial on the merits, I have concluded that the institutional and Crown delay in this case, while not acceptable or desirable, does not rise to the level of a violation of Mr. Pyrek's s. 11(b) Charter rights.

Conclusion

[76] For the foregoing reasons, the application is dismissed.

Released: April 27, 2015

Justice Paul F. Monahan