Citation and Parties
Citation: R. v. Sharma, 2016 ONCJ 226
Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Sanjay Sharma
Ruling on Section 11(b) Application
Reasons for Judgment released on April 21, 2016
Counsel:
- Tom Goddard, Assistant Crown Attorney
- David Costa, for the Defendant
Before: Harris, P.J.
Background
[1] Sanjay Sharma was charged on June 6, 2014 with the offence of operate motor vehicle with "excess alcohol." He has applied for a stay of proceedings pursuant to s. 11(b) and s. 24(1) of the Charter on the grounds of unreasonable trial delay and this application was heard on April 15th, 2016 in advance of the trial date of June 15, 2016. Applications under s. 11(b) are now heard in advance of the trial date pursuant to an administrative policy in the Ontario Court designed to salvage trial time for other cases should the application succeed. I will treat this Application as if it were brought on the actual trial date of June 15, 2016.
[2] The allegation is that Mr. Sharma was travelling northbound on the 400 highway at the Steeles off-ramp in Toronto when he was stopped in an OPP RIDE spot check. After a short investigation the (unproven) indication was that he had been driving with a blood-alcohol level of approximately 130 mgs percent (truncated).
Chronology of Events
[3] The following court attendances were documented and delay has been allocated to the various categories. An explanation of the allocations follows the chart below.
| Time Period | Explanation | Delay Category |
|---|---|---|
| June 6, 2014 to July 11, 2014 | Delay to first appearance | Neutral intake |
| July 11, 2014 to July 31, 2014 | Delay for video disclosure | Neutral intake |
| July 31, 2014 to August 14, 2014 | Delay for further disclosure | Neutral intake |
| August 14, 2014 to August 28, 2014 | Delay for further disclosure and Crown pretrial | Neutral intake |
| August 28, 2014 to September 4, 2014 | Delay to meet with Crown seized with case | Neutral intake |
| September 4, 2014 to September 11, 2014 | Delay to discuss missing disclosure with Crown | Neutral intake |
| September 11, 2014 to September 25, 2014 | Delay to discuss missing disclosure with Crown | Neutral intake |
| September 25, 2014 to October 21, 2014 | Delay to discuss missing disclosure with Crown | Neutral intake |
| October 21, 2014 to November 13, 2014 | Delay to discuss missing disclosure with Crown | Neutral intake |
| November 13, 2014 to November 27, 2004 | Delay to discuss missing video disclosure with Crown | Neutral intake |
| November 27, 2014 to March 26, 2015 (Trial Sept. 14, 15 selected) | Trial date set and interim date selected | Institutional delay less calculation for trial readiness |
| March 26, 2015 to April 23, 2015 | Interim date to consider earlier trial date | Institutional delay |
| April 23, 2015 to trial date September 14, 2015 | Earlier trial date no longer available | Institutional delay |
| July 29, 2015 | Motion to adjourn trial date due to unavailable expert | Trial date adjourned; Crown delay from August 31 due to late disclosure |
| July 29, 2015 to August 31, 2015 | Adjourned for JPT to set a time estimate | Inherent delay for JPT |
| August 31, 2015 to December 17th 2015 | New trial date set; interim date selected | Institutional/Crown delay less trial readiness calculation for new Charter application |
| December 17, 2015 to February 4, 2015 | Trial date set; interim date selected | Institutional/Crown delay |
| February 4, 2015 to April 15, 2015 (Trial dates June 15th, 16th, 2015) | Date set for 11(b) application | Institutional/Crown delay to June 15th trial date |
Analysis
(a) Calculating the Neutral Intake Period
[4] I propose to conduct an attribution analysis of the specific periods that constitute the total delay in accordance with R. v. Schertzer 2009 ONCA 742.
[5] There was an extended period of neutral intake delay in this case as counsel discussed disclosure issues and held numerous pre-trials. On July 28, 2014, the defence requested the following disclosure: "maintenance logs and calibration records for the … 8000C Intoxilyzer Machine used in this investigation" and the breath room DVD. On July 31, 2014, the Crown's office replied and advised that" the breath and booking DVDs are blank" and that the Crown's office "maintains its position that historical instrument records are irrelevant" and that in any event "the OPP now take the position that they are third party records subject to an O'Connor application." I do not find the argument persuasive that the defence failed to particularize the records they were seeking, particularly when the Crown's own correspondence refers to "historical instrument records." It seems to me the Crown was well aware of the disclosure the defence was seeking. After pressing the Crown for the instrument record disclosure from July to November, 2014, Crown counsel relented and agreed to provide the disclosure sought by the defence. However that is not what occurred.
[6] It is noteworthy that the defence instrument record disclosure request could be said to be based on binding legal authority on the subject in the jurisprudential context in which it arose. On August 6, 2013, Justice Nadelle, of the Ontario Court of Justice in R. v. Jackson, [2013] O.J. No. 3793 ordered the Crown to disclose certain records and information in their possession [the historical records] relating to an Intoxilyzer 8000C Breath Testing Device, prior to trial. In ordering this disclosure as a first party record and part of the Crown's Stinchcombe responsibilities, the Court held: (Page 4 line 27):
Since the amendments to Section 258(1)(c), there remains only one available way for an accused to challenge an Intoxilyzer reading. There must be some evidence to show that the approved instrument, in this case, the Intoxilyzer 8000C, was malfunctioning or was operated improperly.
[7] On appeal for the Superior Court, Johnston J. in R. v. Jackson [2014] O.J. No. 1685 (O.S.C.) (judgment released April 7th, 2014), upheld the lower court ruling and found that the instrument records were first party disclosure and "likely relevant" records that "ought to be produced" by the Crown:
27 I have carefully considered the Applicants evidence, including the expert evidence and arguments. However, in my view there does appear to be dispute within the scientific community as to whether or not the documentation sought to be produced by the Respondent in this case would be of any use or benefit to him in defending the charge before the Court and challenging the results of the Intoxilyzer 8000C. As noted by Nadelle, J., Daryl Mayers in an affidavit stated, "no analytical testing instrument, including the Intoxilyzer 8000C, is infallible." Expert evidence from defence and Crown, agree on this point. It is further agreed that the Intoxilyzer 8000C is a reliable instrument. The Judge further found, "there is a difference of opinion amongst experts about the value in reviewing the items sought." Accordingly, applying the test as set out by the Supreme Court in McNeil I agree with the motion Judge that the records are first party disclosure, not third party records. The decision of R. v. Black is not binding on this Court; however, it is clearly a case that deserves close review. I End (sic) that Black is distinguishable to the case at bar, to the extent that the records sought in that case related to a roadside screening device and maintenance records of that device. In the case at bar, the records being sought are the records pertaining to the instrument which is the main evidence against the accused person.
28 Given my findings, it is not necessary to determine if the records in question are 'likely relevant' under the procedure set out in R. v. O'Connor. However, it is clear from my findings that the records sought are likely relevant and ought to be produced. [Emphasis added]
[8] Notwithstanding the fact that the law in this regard was reversed December 2nd, 2015 (R. v. Jackson 2015 ONCA 832), a reasonable conclusion from the foregoing would be that during the period June 2014 to September 2015, the law required the Crown to disclose the historical instrument records pertaining to the Intoxilyzer 8000C used in a particular investigation. That is what the defence requested in this case. Still, the Crown initially (from July to November, 2014) took the position the records were irrelevant, and that the defence would have to apply to court for these records on a third party record application.
[9] By November 10th, 2014, the Crown appeared to be shifting its position. In a letter to Mr. Goddard of the Crown Office from defence counsel, dated November 10, 2014, Mr. Costa states: "You conveyed at the defence-scheduled pretrial that it does not appear to be a problem to obtain these" [the calibration records and maintenance logs]. In a letter dated November 24th, 2014 Mr. Goddard replied that, "the Crown does not agree that you need to wait for the Calibration and Maintenance logs in order to set a trial date…I will see what I can do to perhaps get you those by the end of the week." On November 27th, 2014 trial dates were set for September 14 and 15 2015. Still, the instrument records disclosure was not made available until June 23rd, 2015, almost seven months later.
[10] That the period June 6, 2014 to November 27, 2014 is attributable to the neutral intake category is beyond dispute. In three decisions, the Ontario Court of Appeal has emphasized the point that disclosure need not be complete before dates are set for trial or preliminary hearing. (See R. v. Kovacs-Tatar, R. v. M.(N.N.), R. v. Schertzer 2009 ONCA 742). In R. v. M. (N.N.) Jurianz J.A. held that:: (at para. 37):
"Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial."
[11] In R. v. Lahiry, 2011 ONSC 6780, Code J. very clearly explained the practice counsel should be expected to adopt to obtain the required disclosure before the trial date: (at Para. 114):
[114] In any event, as I read the above line of binding authority, outstanding disclosure can often be significant and it still cannot be used to hold up the setting of dates for trial or preliminary inquiry. Sophisticated forensic testing and ongoing investigative steps often take time and they cannot be allowed to hold the process hostage by preventing the setting of timely trial dates. It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages. This is simply common sense. Lawyers can generally adapt and adjust their trial strategy to ongoing disclosure, received from the Crown while awaiting trial. If the Crown is not being diligent in providing disclosure sufficiently in advance of the trial date, then setting confirmation dates and target dates for trial will solve the problem. By bringing the case back to court, a month or two before the target trial date, defence counsel can create a check to prevent dilatory Crown disclosure practices. If the Crown has not completed all important disclosure by the confirmation date, the defence can then adjourn the target trial date and the Crown's actions will have caused the delay. [Emphasis added]
[12] In my view this is exactly what occurred in this case. The Crown did not complete the instrument record disclosure until a point in time at which it was too late to produce an essential witness to testify about the disclosure, and effectively, the defence had no choice but to adjourn the target trial date with the result that the Crown's actions caused the delay. As noted below, the trial process was heavily impacted by the timing of the instrument records disclosure.
Attributing the Delay after the Trial Date is Set
[13] The trial date was set on November 27th, 2014 and one and one-half trial days were set for September 14th and 15th. The sequence of events is as follows: on June 18th, 2015, Mr. Costa for the defendant wrote to the Crown Mr. Goddard to advise that "With the trial dates less than three months away, we believe that there would be sufficient time to provide us with the maintenance and calibration records" and included references to case law in which these types of records were ordered disclosed. On June 23rd, Mr. Costa was sent a disclosure package pickup notice from the Crown's office that ambiguously referred to "a CD of Bill C2 disclosure." (No reference to instrument records). Most perplexingly, on the same date, June 23rd, Crown counsel sent a six page letter to defence counsel once again reiterating the Crown's position that the instrument records were irrelevant but "notwithstanding the above legal position, the Downtown Crown Attorney's office is prepared to provide you with some historical records concerning the history of the approved instrument used in this case." Not surprisingly, given the continuing debate about relevance, defence counsel appears to have missed the fact that the Bill C2 disclosure (if he knew what that was) was ready for pickup and he sent a follow-up letter on July 3rd once again requesting the instrument records. Mr. Goddard, unaware of the Bill C2 data availability, replies in writing on July 7th that he will try to "have the records sent to you by the end of this week." On July 13th, the case management coordinator of the Crown's office wrote to Mr. Costa advising that the Bill C2 disclosure still had not been picked up.
[14] On July 29th the defence brought a motion to adjourn the trial date on the grounds that the expert retained by the defence to analyze the instrument records, Dr. Joel Mayer, was not available on the September 14 and 15 trial dates. The Crown opposed the adjournment request and after a full hearing Justice C. Mocha ruled as follows:
All right, well I have looked at the application materials and certainly I understand the Crown concerns with regard to these requests for data but the request was made very early on, July 28, 2014. Counsel did have conversations, if not written communication, with the Crown even after that, October and again in November. Unfortunately that was not provided to the Crown's office for the purposes of disclosure until, I forget the exact date, but approximately 3 weeks prior to when counsel actually got it on July 13. So as a result of that delay, defense counsel did not approach retaining an expert until they had the data, and although the application says that they needed sufficient time to prepare the expert report, that is really not the reason since apparently he is backlogged but he could prepare a report about three weeks. So the real reason is in paragraph 4 indicating that the expert, Dr. Mayer, is not available to testify in court on September 14 or apparently September 15, either. So, given all of the history, which I will not repeat, it was reviewed and the submissions by counsel, but I am going to grant the application for adjournment. It is not a situation where defence just sat on their hands and did nothing. In fact, were not for their communication again in June, it sounds like the Crown probably would not have noticed that that the data was not supplied until the trial date and that would have been an even bigger problem for the Crown. So given all of the circumstances, I am satisfied the prerequisites have been established. It is unfortunate though since the day and a half was set aside for this matter, but it does seem, I agree with the Crown that given now there will be an expert apparently called, that there is going to be more than a day and a half needed for this matter. [Emphasis added].
Do you want to reassess the time estimate now or do you want to come back once you've got your report and you know better what's - what's happening?
Mr. Goddard: I would suggest the latter very much, Your Honour. (Discussions ensued about arranging a new JPT and setting new trial dates).
[15] Justice Mocha found that the disclosure request had been made early on (July 28, 2014), the disclosure was not provided until a date in June 2015, and defence did not, as one might expect, retain an expert until they had the data. That late in the trial process, the expert was not available for trial. The Court held, "the defence did not sit on their hands." "Were it not for the defence communication in June, the Crown probably would not have noticed that the data was not supplied until the trial date and that would have been an even bigger problem for the Crown." In other words the Court implied that if the defence had not communicated a concern about the missing disclosure in June, the trial dates would have been lost in any event.
[16] In my view the defence acted responsibly in applying to adjourn the matter about 2.5 months before the trial date. This would allow the Ontario Court trial coordinators sufficient time to schedule another trial in the temporal space vacated by this case. That it later developed that Dr. Mayer did not find an instrument malfunction in the instrument data and was subsequently retained to support a "bolus drinking" defence is irrelevant. The fact is - when the instrument records were received it was too late to schedule the defence expert. The defence had no choice but to apply for an adjournment to protect the defendant's interests. According to Lahiry, "If the Crown has not completed all important disclosure by the confirmation date, the defence can then adjourn the target trial date and the Crown's actions will have caused the delay." That is what occurred in this case and the conclusion I reach is that the Crown is responsible for the delay to the second trial date set for June 15, 2016 (with appropriate deductions for trial readiness requirements).
(c) Trial Readiness Calculations
[17] The global trial delay from the first set date, November 27, 2014 to the second trial date is about 18.5 months. This calls for an inquiry. The institutional delay to the first trial date is assessed by applying a trial readiness reduction to the period between the set date and the terminus of the calculation at the adjournment date of July 29, 2015. This period of about eight months will be reduced by applying a trial readiness administrative guideline (T.R.A.G.), since counsel did not indicate on the record their trial availability or trial preparation needs. Where there is no indication of trial readiness by counsel on record, the accepted approach is to make an assessment based on the charge and its complexity: see R. v. Williamson 2014 ONCA 598 [one month]; R. v. Florence 2014 ONCA 443, at para. 63 [three months]; R. v. Ralph 2014 ONCA 3, 299 C.R.R. (2d) 1 [four months].
[18] Similarly, the period from the second trial set date on August 31st, 2015 to June 15th, 2016 will be reduced by applying a second trial readiness administrative guideline based on the fact that new issues had emerged resulting in the requirement of a further one/half day for trial. As noted below, a three week period for trial readiness will be deducted from each of the two trial periods resulting in an institutional delay from the first trial date November 27th, 2014 of about 7.25 months and a period of institutional/Crown delay from the second trial date commencing August 31st, 2015 of about 8.75 months. The total institutional/Crown delay is approximately 16 months. What follows is a full explanation of the neutral or inherent delay attribution for trial readiness in this case.
[19] Crown counsel argues that in terms of trial readiness, it could not be said that defence counsel was ready for trial any time after November 27, 2014, following the indication on the record that "Mr. Costa was not yet fully retained for the trial' (transcript, November 27, 2014) and the setting of interim dates for retainer confirmation. In my view trial readiness as the term is used in Morin and cases that follow such as Lahiry, means 'counsel availability' and 'the time it would take counsel to prepare the case to be tried.' The fact that a defendant might be struggling with the financial burden of representation necessitating interim dates to confirm that the defendant is on course to pay counsel's bill by the trial date should not have any bearing on the individual defendant's constitutional rights to a speedy trial.
Establishing Trial Readiness Administrative Guidelines for the First and Second Trial Periods
[20] A trial readiness administrative guideline is a reasonable inference based on judicial experience as to the neutral delay required for counsel to become ready to try the case based on a consideration of the charge and the complexity of the proceeding. This is exactly what we do when we calculate the neutral intake period in a case and it avoids the need to hear the same evidence repeated with each s. 11(b) application. This also sidesteps the spectacle of the court holding an inquiry into counsel's level of experience, the defences being prepared and counsel's availability for trial ― as well as an inspection of the mechanics of the Crown's trial prep system ― with a view to rendering a 'correct' allocation of inherent trial readiness delay.
[21] We are continually working with administrative guidelines even if we don't always describe them as such. Consider the Askov/Morin institutional delay administrative guideline (I.D.A.G.) of 8 to 10 months in provincial court. Secondly, at para. 42 in R. v. Morin, Sopinka J. encouraged trial courts to develop de facto administrative guidelines for the neutral intake period in the local region based on categories of offences and the seriousness of the charge. This is what he had to say about setting the intake period administrative guideline (I.P.A.G.) at para. 42:
The length of time necessary will be influenced by local practices and conditions and should reflect that fact. No doubt the intake period in a particular region will tend to be the same for most offences. There may, however, be a significant variation between some categories of offences, such as between summons cases and cases of arrest. This will mean that courts in a particular region will tend to hear the same evidence repeated with each s. 11(b) application. It will then become apparent that this period falls within a range of a certain number of weeks or months. A de facto administrative guideline will thus develop that will reflect conditions in that region. [Emphasis added].
[22] Based on the foregoing, it is well accepted in our trial delay practice that we utilize two different types of administrative guidelines: institutional delay administrative guidelines of 8 to 10 months and intake period administrative guidelines. (I.D.A.G.s and I.P.A.G.s). While we do not refer to them as such, we are already very familiar with intake period administrative guidelines (I.P.A.G.s). Here are a few examples of the use of administrative guidelines for intake purposes from case authorities.
[23] In R. v. Morin, the Supreme Court accepted 6 weeks as a reasonable neutral intake period for a drinking/driving case. (2) Code J. in R. v. Lahiry (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525, at para. 22 (Ont. S.C.J.) concluded that "two months is a reasonable intake period in simple drinking and driving cases". (3) In R. v. Sharma, (1992), 71 C.C.C. (3d) 184 (S.C.C.) the Supreme Court set a neutral period of three months for a charge of "impaired causing bodily harm". (4) In R. v. Kovacs-Tatar, (2004), 192 C.C.C. (3d) 91 (Ont.C.A.) at para. 46-47 the Ontario Court of Appeal determined that a neutral intake period in this case for a charge of sexual assault was four months. (5) R. v. Nadarajah, 2009 ONCA 118, [2009] O.J. No. 493 (C.A.) at 19 [robbery with a firearm - 4.5 months]. (6) In R. v. Seegmiller, (2004), 191 C.C.C. (3d) 347 (Ont.C.A.) at para. 14 the Court of Appeal accepted five months as the intake period for a charge of sexual assault. (7) In R. v. Steele, 2012 ONCA 383, 2012 ONCA 383, at para. 16-17 the Court stated that the neutral intake period for this particular robbery charge should be five months.
[24] The point to be clear about ― is that these set periods are not based on evidence heard on the delay application, they are judicial short-cuts or inferences drawn from experience based on the charge and the complexity of the case. Most trial courts now assign an 'appellate court-approved set period' of delay to neutral intake as an administrative guideline to avoid hearing the same evidence repeated in every s. 11(b) application.
[25] The point of this discussion is that there is no reason why we should not be using administrative guidelines for trial readiness based on the charge and the complexity of the case. Still, not every case is of assistance in this calculus. Cases like R. v. Tran 2012 ONCA 18, [2012] OJ No 83 (QL); 287 OAC 94 (C.A.) should be removed from the control group for comparison purposes. (The five month trial readiness attribution in this case is an anomaly because counsel were unavailable for several months after the trial date was set). It is critical that our model administrative guideline be constructed with the use of only two variables (as much as possible) ― the charge and the complexity of the matter.
[26] By way of background, it is noteworthy that back in in 1992, Sopinka J. [in Morin] determined that about a month should be allocated for counsel to prepare and make themselves available for trial in a drinking and driving case. The fact is ― that was not an evidence-based determination, it was an administrative guideline inferred from the charge and its level of complexity.
[27] Code J. in Lahiry, at para. 31 made the often-quoted statement that: "in routine drinking and driving cases, the amount of time needed to prepare for a short trial is not great". Given that the Crown and defence readiness periods will proceed concurrently, the trial readiness allocation will generally take the form of a balancing exercise between the Crown's inherent trial requirements and the need to give effect to the speedy trial right of the defendant.
[28] In R. v. Konstantakos, 2014 ONCA 21, the Court of Appeal provided a baseline for comparison purposes. In regard to a matter of some complexity involving a 'grow operation' where there was no stipulation on the record as to trial preparation time required, the court held ─ that a 30 day period would be a reasonable allocation: (at para. 11):
Allowing a minimal amount of time to prepare for a trial of moderate complexity, including the preparation and service of an application under s. s. 8 of the Charter, it is reasonable to deduct 30 days as inherent delay. [Emphasis added].
[29] Trial readiness periods in the Court of Appeal are trending at one month to several months depending on the charge and complexity of the proceeding. (See for example, R. v. Williamson 2014 ONCA 598 [one month – historic buggery, gross indecency charges]; R. v. Florence 2014 ONCA 443, at para. 63 [three months – drug trafficking]; R. v. Ralph 2014 ONCA 3, 299 C.R.R. (2d) 1, at para. 12 [four months – drug trafficking, trafficking firearm]).
[30] Two principles emerge from the case law: (1) serious cases of major complexity call for trial readiness guidelines of several months. (2) Serious cases of moderate complexity should attract a trial readiness guideline of one month: R. v. Konstantakos, supra. For our purposes it is necessary to establish a trial readiness guideline for brief uncomplicated proceedings.
[31] For a brief uncomplicated proceeding that is scheduled in the Ontario Court for a few (one to three) days, in my view, based on a comparison with appellate decisions, the trial readiness guideline should settle at between two and three weeks, depending on whether the Crown would need time to respond to Charter motions. The Crown's trial responsibilities generally involve the securing of witnesses, trial planning, research, and responding to Charter motions filed by the defence. To begin with, the securing and 'meeting witness' component of Crown trial preparation should generally not take longer than two weeks in a relatively straightforward case. See R. v. Duszak, [2013] O.J. No. 5015 (Ont.C.J.)
[32] Should there be a need as part of the inherent Crown trial responsibility, to respond to Charter motions brought by the defence, there is some authority for the expansion of the neutral period by one further week in a drinking/driving case: R. v. Duszak, supra. The Court held:
"In my estimation, some three weeks is rightly assigned to the inherent time requirements of the case to allow for the Crown's response to the defence Charter application. This period runs concurrently with those two weeks accounted for by the Crown's obligation to secure the attendance of necessary witnesses."
[33] The position I am taking is that it would be imminently reasonable to adopt an approach in this case that assessed a trial readiness administrative guideline of three weeks for a this brief uncomplicated proceeding [with a Charter motion] as a fair balance that recognises that fact the Crown plays an important public role in the trial process, and the need to strike a reasonable balance between an accused's section 11(b) constitutional protection and the societal interest in a well-prepared trial.
The Morin Factors
[34] Whether delay has been reasonable is assessed by considering the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay (inherent time requirements, accused's actions, Crown's actions, limits on institutional resources), the prejudice to the accused and finally by balancing the interests that s. 11(b) seeks to protect: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 para 18. Accordingly, the issues under consideration will be dealt with in the above-noted order.
Length of the Delay
[35] As noted above, the total delay to trial is approximately 24 months ― from June 6, 2014 to June 15, 2015. If the overall period of delay is calculated from the date the information was sworn, until the scheduled trial dates, the total delay is closer to 23 months. (See: R. v. Kalanj, (1989) 48 C.C.C. (3d) 459 (S.C.C.)). A delay of this magnitude calls for an inquiry.
Waiver of Time Periods
[36] There were no express waivers by the defence of any time period based on the analysis that follows. After the initial intake period, the defence position on the adjournments for preliminary activities in this case took the form of: (1) acquiescence in delay to await crucial disclosure; and (2) acquiescence in delay to await Crown pre-trials. The many communication difficulties between counsel and the ongoing debates about the Crown's disclosure obligations that resulted in an expanded and somewhat troubling extended time frame for initial preparations before the first trial date was set, are fairly allocated to the neutral delay category. As well, according to s. 11(b) jurisprudence, the delay for counsel availability and preparation is more properly attributed to the inherent functions of a case and classified as neutral for s. 11(b) purposes.
[37] Crown counsel argues that the failure to take advantage of an offer of an earlier trial date constituted an implicit waiver which disqualifies the defendant from contending that he suffered prejudice beyond the date when an earlier trial date was offered. I have considered the factual circumstances carefully. A letter dated March 12, 2015 was sent to defence counsel by Ms. Laton, Assistant Crown Attorney, indicating that a block of dates had been made available for an earlier trial for a number of outstanding cases. The lengthy letter stated that if the defendant was interested in an earlier trial date, this Crown counsel could be contacted by phone. It appears that the plan was to have all trial dates available to all counsel on one court date March 31, 2015. In the March 26 transcript, Mr. Costa states that "we have received correspondence from the Crown's office seeking to bring forward the anticipated September trial date. So to coordinate that can we come back April 23 so I can get dates from the Crowns to accomplish that." Ms. Erlick (Crown counsel): "That's fine." In the transcript of April 23, Mr. Costa says "I've been in talks with the Crown. We were thinking of bringing an earlier trial date. Some dates opened up. They closed up since."
[38] From all of this, with Crown counsel Ms. Erlick agreeing to the proposed adjournment to April 23, and the short window of opportunity in which to take advantage of the offer at a mass attendance on one date to obtain earlier trial dates on a first come first served basis with two weeks notice, I can only infer that Mr. Costa expressed an interest in arranging a new trial date but that the window closed before that could be accomplished. The letter is not clear as to whether the failure to attend court on March 31 would be deemed to be a refusal of an earlier trial date. My conclusion is that the process of obtaining a new trial date was very abrupt and unclear and that led to a misunderstanding as to what the defence had to do to secure an earlier date. On these facts, I cannot find that the defence implicitly waived the existing trial delay.
Reasons for the Delay
(a) Inherent time requirements of the case and neutral periods
[39] There are three inherent time calculations required in this case: (i) the neutral intake period; (ii) the delay required for counsel availability and case preparation once the date for trial is set; (iii) the delay for judicial pre-trials.
[40] As noted above, all of the period from June 6, 2014 to November 27, 2014 will be attributed to neutral intake. Two periods of trial readiness of three weeks each, will be allocated to the first and second trial periods as a neutral delay calculation in accordance with trial readiness administrative guideline principles. The period from July 29th to the judicial pretrial date of August 31st, 2015, will be allocated to the inherent delay category on the basis of appellate authorities. (See R. v. Tran 2012 ONCA 18).
(b) Actions of the accused
[41] There was no waiver of trial delay on the part of the accused. The trial readiness delay as noted above is recorded as neutral in the calculation of overall delay in accordance with R. v. Tran, supra.
(c) Actions of the Crown
[42] As noted above, the delay to the second trial date has been allocated to the Crown as a result of late disclosure: "If the Crown has not completed all important disclosure….the defence can then adjourn the target trial date and the Crown's actions will have caused the delay: R. v. Lahiry, supra. This delay period in my view is properly calculated as 8.75 months to the June 15, 2016 trial date after deducting the three week trial readiness period.
(d) Limits on Institutional Resources
[43] The limits on institutional resources are well known in the Ontario Court of Justice, where even today, some twenty-six years after the first Supreme Court of Canada decision on s.11(b) of the Charter (R. v. Askov, [1990] 2 S.C.R. 1199) trial dates are routinely being set on dates in the future which are within and often at the upper end of the guidelines as outlined in that decision ─ and are potentially in constitutional jeopardy should the cases require any further delay. The systemic/Crown delay in this case modified by a three week period for trial readiness to be deducted from each of the two trial periods results in an institutional delay from the first trial date November 27th, 2014 of about 7.25 months and a period of institutional/Crown delay from the second trial date commencing August 31st, 2015 of about 8.75 months. The total institutional/Crown delay is approximately 16 months. The first period is just under the Askov/Morin guidelines and by itself, while not ideal, would represent a constitutionally acceptable period of trial delay. Unfortunately, the actions of the Crown resulted in the need for a second trial date and that extended the level of systemic delay in this case considerably.
(e) Other reasons for the delay
[44] All delay in this case has been covered in my analysis under other headings. Counsel has not argued for the attribution of delay to any other factor in this case.
[45] The total delay attributable to the Crown directly or pursuant to its responsibility for systemic or institutional delay is 16 months.
Prejudice
[46] The Defendant provided evidence on this issue in the form of an affidavit and was cross-examined extensively on his claim of prejudice. I accept that he experienced a more intensive and protracted degree of stress and anxiety as the trial delay continued into its second year. While a considerable measure of stress and interference with his lifestyle and responsibilities could be attributed to the fact he was charged with "excess alcohol" as opposed to the ramifications of the delay, the trial process has taken an unusually long time in this case and the costs to a man of modest means have been significant. Additionally, I am satisfied that as the process became more protracted there have been increasing levels of disruption to his family life and work responsibilities and his relationships and productivity at work have suffered. In the end result, I am satisfied that the defendant has suffered a modest degree of actual prejudice to his security interests as a result of trial delay in terms of increasing stress, anxiety and negative work and family impacts. In addition, the financial costs of retaining counsel for the excessive number of court appearances, often having to do with missing disclosure, represents an additional prejudicial impact. As well, a relatively modest degree of inherent prejudice can be inferred in respect to this defendant as a result of the general stigma, personal and social impacts of about twenty-four months of delay in having these pending criminal accusations concluded. I do note though, that there has been no assertion of prejudice to his liberty and fair trial interests and the appropriate characterization of prejudice in this case, in terms of actual and inferred prejudice, is "modest."
Summary of Delay Calculations
[47] It is now possible to reach a conclusion as to the outcome of this section 11(b) application. In keeping with the R. v. Schertzer 2009 ONCA 742, [2009] O.J. No. 4425 (C.A.) dictum that "No delay should be left without allocation to the five Morin delay categories", it is critical to the delay calculation that the inherent time requirements of the case include the neutral intake period, the trial readiness period as well as judicial pre-trial delay and that total inherent delay is then deducted from Crown and institutional delay to arrive at a global period of trial delay. Next I am required to deduct defence actions or waivers that may have contributed to the delay. This is the unreasonable and unjustifiable delay in the case.
[48] Next, the accepted procedure is to compare the unreasonable delay with the Ascov/Morin administrative guidelines and factor into the constitutional decision the effect of actual or inferred prejudice. As we know, the prejudice factor can move the constitutional yardsticks above or below the guidelines by a month or two. (In Morin, the court held that a delay of 12 months was constitutionally justifiable where there was no prejudice and the defence did not respond to an offer of an earlier trial date.) Generally though, if the unreasonable delay is above the guidelines, the strongest case of actual prejudice would not be required to find a violation of the speedy trial right. The corollary of that axiom is that where the unreasonable delay is less than the eight to ten-month Morin guideline for institutional delay, "It would require a very strong case of actual prejudice to find a s. 11(b) violation in these circumstances: Lahiry at para. 72.
Balancing
[49] This is the balancing exercise: "it is only unreasonable periods of delay, causing prejudice, which s. 11(b) protects against….and these factors must then be balanced against the societal interest in a trial on the merits" [prior to deciding whether a violation has occurred]: Lahiry, para. 9. It is well accepted that society's interests in a trial on the merits increases as the seriousness of the charges increases. It must be acknowledged that the charges before the court are relatively serious as all criminal charges are, but even more so in respect to the widely recognized carnage on our streets and highways caused by substance-abusing drivers. The exercise of balancing competing interests is described by McLachlan J. in concurring reasons in R. v. Morin, supra:
The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in 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.
Conclusion
[50] As noted above, the total delay directly attributable to the Crown or pursuant to its overall responsibility for systemic delay is 16 months. This trial delay is considerably above the Ascov/Morin guidelines of eight to ten months by six months. I have determined that the actual and inherent prejudice to be inferred with respect to the Applicant should be characterized as modest. It follows that the amount of delay that is "tolerable" in this case must be closer to the upper end of the range given the modest level of actual and inferred prejudice to the Applicant particularly having regard to the fact that there were no real trial delay impacts on his liberty or fair trial interests (see R. v. G. (C.R.), [2005] O.J. No. 3764 (C.A.)). Consequently, this means that trial delay somewhat closer to 10 months would be "tolerable" in this case. Sixteen months delay, however, is well outside constitutionally acceptable levels, even considering the modest degree of actual and inferred prejudice.
[51] Much has been said in s. 11(b) jurisprudence about the very strong societal interest in trying serious drinking and driving charges involving so much public harm, on the merits. Nevertheless, it is now well recognized that in cases where the Crown is responsible for a significant proportion of the trial delay, this cause of delay weighs more heavily against the State in the balancing exercise. (See R. v. McNeilly [2005] O.J. No. 1438 (Ont. S.C.); R. v. Brown [2005] O.J. No. 2395 (Ont. C.J.)). This is of even greater significance given the fact that the disclosure was requested approximately eleven months before it was received and for nearly seven months the Crown appears to have forgotten its disclosure responsibilities, having agreed to provide the instrument records in November, 2014. This disclosure delay resulted in the adjournment of the first trial date. In balancing all the considerations, the amount of the delay, the reasons for the delay, the prejudice to the defendant arising from the delay, I am satisfied on a balance of probabilities that the defendant has established that his interests and society's interest in a prompt trial outweighs the interests of society in a trial on the merits in this case for the above-noted reasons.
[52] Accordingly, I have concluded that the defendant's section 11(b) rights have been breached and the charge of "over 80 mgs" will therefore be stayed.
P. Harris J.
April 21, 2016