Court File and Parties

Court File No.: Central East - Newmarket 15-04448 Date: 2016-10-24 Ontario Court of Justice

Between: Her Majesty the Queen Respondent

— And —

Stephen Smyth Applicant

Before: Justice P.N. Bourque

Counsel:

• B. Juriansz, for the Crown
• J. Rosenthal, for the Applicant

Reasons for Judgment

Released on October 24, 2016

Overview

[1] The Defendant (the "Applicant") Stephen Smyth is charged that on June 6, 2016, he did commit the offence of drive with excess alcohol and drive impaired. The information was sworn on June 12, 2015.

Trial Within a Reasonable Time

Section 11(b) Charter of Rights and Freedoms

[2] The Applicant makes an application pursuant to Section 11(b) of the Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time", has been infringed. He further asks that if I find that such an infringement has occurred, then pursuant to the provisions of Section 24(1) of the Charter that the only remedy which is "just and appropriate under the circumstances" is a Judicial Stay of the charges against him.

The Onus

[3] Previous to the decision in R. v. Jordan, the onus in these applications was upon the applicant ("defendant"). Under the new law, the onus is to be determined after determining whether the length of time (as calculated according to Jordan) is under or over 18 months.

Relevant Time Periods and Actions Which Impact Upon the Issue of Delay

Date	Event
June 6, 2015	Date of offence
June 12, 2015	Date of charge
June 23, 2016	1st court appearance: Initial disclosure provided. Matter adjourned to July 14, 2015
July 14, 2015	2nd court appearance: Further disclosure provided – matter adjourned to August 4, 2015 to review disclosure – counsel determines that some matters still outstanding – adjourn to August 4, 2015
August 4, 2015	3rd court appearance: Defence has all disclosure and seeks adjournment to review – adjourned to August 18, 2015
August 18, 2015	4th court appearance: Crown resolution meeting held and matter adjourned to September 18, 2015 to conduct a Judicial pre-trial
September 18, 2015	5th court appearance: Judicial pre-trial completed and trial dates set for July 18th and 19th, 2016
December 22, 2015	6th court appearance: Crown brings application for adjournment of original trial as officer witness not available because of vacation – Adjournment of trial granted – not opposed by defence – adjourned to January 5, 2016 for defence to get new dates from client
January 5, 2016	7th court appearance: New trial dates of Oct 13th and 14th, 2016 set
July 19, 2016	8th court appearance: Defendant brings application for dismissal for delay – matter could not be heard and adjourned to September 6, 2016
September 6, 2016	9th court appearance: Delay application could not be heard and adjourned to opening of trial
October 13, 2016	1st trial date
October 14, 2016	2nd trial date: date to finish the trial

Total time from charge to trial completion: June 12, 2015 to October 14, 2016 = 16 months

Total intake time: June 12, 2015 to September 18, 2015 = 3 months and 6 days

Total time from first set date to trial completion: September 18, 2015 to October 14, 2016 = 13 months

Legal Framework

[4] Before the Supreme Court of Canada decision in R. v. Jordan, the rubric to be followed was set out in the SCC decision of R. v. Morin (1992), 71 C.C.C. (3d) 1, and a plethora of decisions spanning the next 24 years.

[5] In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
   • (a) inherent time requirements of the case;
   • (b) actions of the accused;
   • (c) actions of the Crown;
   • (d) limits on institutional resources; and
4. prejudice to the accused.

[6] In Jordan, the court laid out a new set of principles to be applied to the 11(b) analysis. I quote extensively from Jordan:

At the heart of this new framework is a presumptive ceiling beyond which delay - from the charge to the actual or anticipated end of trial - is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court. Delay attributable to or waived by the defence does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.

Below the presumptive ceiling, however, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases.

As to the first factor, while the defence might not be able to resolve the Crown's or the trial court's challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.

Turning to the second factor, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. These requirements derive from a variety of factors, including the complexity of the case and local considerations. Determining the time the case reasonably should have taken is not a matter of precise calculation, as has been the practice under the Morin framework.

[7] Reasonable time requirements of the case will increase proportionally to a case's complexity, and trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

[8] This case falls below the presumptive ceiling and the following applies:

The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties' reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. Further, if the delay was occasioned by an institutional delay that was, before this decision was released, reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system. Given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.

[9] The general language in Jordan seems to dismiss prejudice as a relevant consideration. It can only be used in the transition in considering the actions of the parties as they relate to the Jordan considerations. As the new rubric speaks of making the defence be a participant in delay reduction and not just an observer, I should look at whether (in response to the prejudice that his client was bearing) the defence took positive steps to move the matter forward. While there is no hindrance from the defence in this matter, there do not appear to be any real positive steps.

Analysis

[10] As we are within the 18 month period, I must assess only two factors:

• (i) has the defendant taken meaningful steps that demonstrate a sustained effort to expedite the proceedings; and,
• (ii) has the case taken markedly longer than it reasonably should?

[11] As we are in transition, I must apply these requirements "contextually, sensitive to the parties' reliance on the previous state of the law". Therefore, the defence need not demonstrate "having taken initiative to expedite matters for the period of delay preceding this decision, since defence initiative was not expressly required by the Morin framework. Only in close cases would evidence of defence initiative during that time assist the defence in showing that the delay markedly exceeds what was reasonably required.

[12] As I have pointed out (and will make further reference below) efforts of the defence in this matter do not show any consistent efforts to expedite the matter. That is to be expected in the pre-Jordan world. Such actions or lack of action will not, in the transition period, be fatal to the defence application.

[13] We are left with an analysis as to whether the case "took markedly longer than it reasonably should have".

[14] In R. v. Oeniye, (presently unreported) I made the following comments about the typical drinking and driving case in this jurisdiction. I believe these comments are relevant to this case.

[15] In making this assessment, I believe that Jordan is not concerned with the minutiae of the various adjournments and who may be responsible. We trial judges have been instructed to not "quibble over rationalizations for vast periods of pre-trial delay". Doing so leads to "limitless variations in permissible delay". This Judge is glad that the Supreme Court has realized that "…the minute accounting required (under the Morin guidelines) might fairly be considered the bane of every trial judge's existence".

[16] This was a case of drinking and driving, which has resulted in the usual two charges. In this jurisdiction, it is rare that such cases are completed in one day, unless one party (usually the defence) admits large parts of the Crown's case.

[17] The case is rarely about the offence itself, but concentrates almost exclusively on the investigation of the case and the various times from stopping to release. It requires the examination of all the various places that charter rights may have been infringed, and the complex web of requirements contained in the legislation that must be proven to found a conviction.

[18] It usually requires the testimony of one or two officers at the scene (and often one civilian witness), and the breath technician. With the advent of in car and in station videos, these examinations and cross-examinations have been increased, as well as the amount of disclosure required. Police notes become the source of volumes of cross-examination.

[19] Being routine, does not equate with simplicity. Such complexity brings with it the need to reserve and prepare written reasons, which leads to more delay (almost 1/3 of the reported decisions of our court contained in the database involve the drinking and driving legislation).

[20] As I look at the record of proceedings, there are a variety of adjournments for a variety of reasons. Some are to get more disclosure; some are to get instructions. Without going into a minute analysis of each adjournment, I find them to be overall somewhat typical of how these cases proceed. The Defence wishes to have all disclosure before proceeding, the Crown responds in a timely manner to requests and disclosure is made.

[21] I point out that I do not feel that the concept of "markedly longer than it should have", is equated with "as soon as is practicable". Just because this case could (in hindsight) have been tried earlier, does not make it "markedly longer than it should have".

[22] In this regard, I find that the period of time from the laying of the charge to the setting of the first trial date (June 12, 2015 to September 28, 2015) contained the usual issues in intake and the setting and holding of a crown pre-trial and judicial pre-trial. It is roughly 3 months.

[23] In this case, the important time periods are from the initial setting of the trial date to the first trial date, and then from to the actual trial date as set after the Crown application for the adjournment. From Sept 28 to July 19th is just under 10 months. The defence argues that since the concept as expressed in R. v. Tran (the need to assess when the parties will be ready for trial) has been done away with under the new rubric, then it should also be done away with in the transitional phase. I believe that is not correct and during the transitional phase, where there is the need to perform something of a modified "Morin Analysis" then all of the law in existence during the period must also be considered. I therefore, from the record, find that the time from the set date to the first (and final trial dates) would be reduced by the month that it took counsel to clear his schedule.

[24] We therefore have a delay of some 9 months to the first trial date.

[25] With regard to the adjournment, it is clear that for some reason the crown either did not have the leave dates of the officer or those dates changed. We don't know. It falls to the feet of the crown. I note that the Crown moved diligently when it discovered the problem and notified Defence counsel early in November and the matter was then brought forward at the end of December. The defence (quite properly I may add) did not object to the adjournment. The new date was set the next week but it pushed the trial back almost 3 months.

[26] The defence then brought an application to dismiss the case for delay in June 2016 and at that point the Crown sent an email to defence counsel offering a major concession, that is it would shorten the trial by dropping the charge of over 80 and offer 3 dates, two in July 2016 and one in August. The defence response was short and did not offer much information. It simply said that he was not available for the dates offered. He did not appear to offer any other dates, and indeed did not comment on the Crown's offer to shorten the trial by dropping the over 80.

[27] Under the Morin analysis, I would have to assign blame to the adjournment to the October dates. While I agree the Crown's error was the source of the delay, I note the Crown moved swiftly to minimize the damage by getting a new date well in advance of the then scheduled trial. I also note that the Crown made a major concession (albeit under threat of a delay application) which would have the effect of ameliorating the delay, reducing the trial time and reducing the jeopardy that the defendant was facing. In those circumstances I should not simply add the time as a Crown delay. I feel that only one month of the delay would be attributable to the Crown under the Morin analysis.

[28] Therefore, under the Morin analysis the total delay would be just over 10 months.

[29] In assessing the prejudice to the defendant, I find it consists largely of his anxiety which arises principally from the charges themselves. The defendant experienced some other prejudice from the attendance (on a least one occasion) when he wanted to have this 11(b) application heard. This total prejudice is real enough but it is not so great as to outweigh the seriousness of the offence, nor the fact that in any Morin analysis, the fact this was a two-day trial estimate rather than one, would allow an institution delay at the higher end of the scale.

[30] After consideration of all of the factors in this matter, I do not believe that I would have granted a stay on the previous Morin framework.

[31] I also keep in mind, that in this jurisdiction a total period (without any deductions) from charge to trial of 12 to 15 months is not unusual, and keeping in mind that words in Jordan that "Given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system". I find that case did not take markedly longer than it should have, and thus the application is dismissed.

Signed: "Justice P.N. Bourque"

Released: October 24, 2016