SUPERIOR COURT OF JUSTICE - ONTARIO

Court File: 55/11
DATE: 20120514

RE: Her Majesty The Queen, Appellant

AND:

Peter McAllister, Respondent

BEFORE: Trotter J.

HEARD: May 14, 2012

COUNSEL:
Brad Demone, Counsel for the Appellant
Tina Kaye, Counsel for the Respondent

ENDORSEMENT

[ 1 ] On January 18, 2010, the Respondent was charged with driving a motor vehicle while “over 80.” On March 14, 2011, some 13 ½ months later, proceedings were stayed for unreasonable delay by the Honourable Justice John Sutherland of the Ontario Court of Justice. The Crown appeals. For the reasons that follow, the appeal is allowed.

[ 2 ] When the matter was argued before Sutherland J., both counsel agreed that the total amount of institutional delay was just over 10 months, which would be just outside of the guidelines established in R. v. Morin (1992), 1992 89 (SCC) , 71 C.C.C. (3d) 1 (S.C.C.). The learned trial judge proceeded on this basis and evaluated prejudice against this backdrop. The Crown appealed, largely based on the trial judge’s assessment of prejudice, and based on his failure to balance the competing interests inherent on a motion under s. 11( b ) of the Charter : see R. v. Schertzer (2009), 2009 ONCA 742 () , 248 C.C.C. (3d) 270 (Ont. C.A.).

[ 3 ] With respect, I would have allowed the appeal based on the period of institutional delay agreed upon by counsel and accepted by the learned trial judge. However, after this Crown appeal was launched, my colleague Code J. released his reasons in R. v. Lahiry , 2011 ONSC 6780 , in which he clarified the proper manner of calculating institutional delay. As he held, instead of counting the entire period of time between the set date and the trial date, judges hearing s. 11( b ) applications should count the period of time between when counsel is available and the trial date: see R. v. Lahiry , supra , para. 2 . This principle, which can be traced back to R. v. Morin , supra , was accepted by the Court of Appeal in R. v. Tran , 2012 ONCA 18 , at para. 32 .

[ 4 ] Based upon this calculation, the Crown submits that the proper period of institutional delay in this case is 8 ½ months. I agree. The Respondent argues that the Crown is not entitled to rely upon this more favourable calculation of institutional delay, equating it with raising a new issue for the first time on appeal: see R. v. Varga (1994), 1994 8727 (ON CA) , 90 C.C.C. (3d) 484 (Ont. C.A.). I disagree. As noted above, in R. v. Lahiry , supra , Code J. merely clarified the proper manner of calculating institutional delay. Moreover, he faced a similar issue in terms of the positions of counsel. As he held at para. 35:

In the case at bar, the Crown conceded, erroneously, that the entire period from setting the date until the trial proceeded was all systemic delay. The court is not bound by the Crown’s erroneous concessions, especially in constitutional litigation.

See also R. v. Tran , supra , at para. 31 .

[ 5 ] Consequently, the Crown’s grounds of appeal must be evaluated in the context of institutional delay of just 8 ½ months, well within the guidelines established in R. v. Morin , supra .

[ 6 ] Again with respect, the learned trial judge erred in his assessment of the prejudice that was claimed. In his brief reasons, the trial judge took note of the fact that the appellant was in counselling, missed receiving a promotion at work and then suffered embarrassment when he was refused entry into the United States while travelling with friends. In my view, the prejudice relied upon by the Respondent could not be linked up to the delay in the proceedings, as opposed to having been charged in the first place. By way of example, on the issue of depression, defence counsel at trial (not Ms. Kaye) submitted: “The accused, Your Honour, is seeing a physician with regards to depression. He says the depression didn’t arise until subsequent to these charges. Now I can’t specifically tell this Court that the depression arose because of the delay…”.

[ 7 ] With respect to the Respondent being turned away at the border while travelling with his friends, this is not the type of prejudice that is cognizable under s. 11( b ) of the Charter . The shame of disclosure arises from the laying of a criminal charge in the first place: see R. v. Silveira , [1998] O.J. No. 1622 (S.C.J.), at para. 53 . Similarly, with respect to the Respondent’s claim of a loss of promotion, there was no evidence that this promotion was a sure thing. Moreover, the relevant events occurred three to four months prior to the trial date, before delay became an issue.

[ 8 ] In addition to all of this, I noted that, on April 16, 2010, the Respondent was charged with another set of charges in relation to fresh drinking and driving allegations. This resulted in his form of release being upgraded from a promise to appear to a surety bail. It seems that it would be impossible to disentangle the effect of this new set of charges from the Respondent’s claim of prejudice resulting from the delay that was considered by the learned trial judge.

[ 9 ] Consequently, I find that the learned trial judge committed a palpable and overriding error in his assessment of prejudice in this case.

[ 10 ] I also agree with the Crown that the trial judge failed to engage in the balancing of the societal interest in a trial on the merits of this case. Such a balancing of interests is important in a case involving a weak or marginal s. 11( b ) violation, which this could have only have been characterized as based on the erroneous period of institutional delay agreed upon at trial: see R. v. Lahiry , supra , para. 88 and R. v. Hussey , [2008] No. 434 (C.A.), at paras. 8-9. The trial judge’s failure to conduct this analysis resulted in further palpable and overriding error.

[ 11 ] Lastly, the Respondent tenders fresh evidence from trial counsel who consulted with the trial coordinator on the day the learned trial judge considered his application. In this affidavit, he states that, because of other business on the court’s docket that day, the Respondent’s case did not get started until the afternoon. Trial counsel checked with the trial coordinator, who informed him that the next available date for trial would be almost 8 months later.

[ 12 ] Assuming that this affidavit should be admitted, it makes no difference to my analysis. The length of any future delay is speculative and ignores the power of trial judges to override the trial coordinator and fix a much earlier court date in appropriate circumstances: see R. v. R.M. (2003), 2003 50092 (ON CA) , 180 C.C.C. (3d) 49 (Ont. C.A.), at para. 9 .

[ 13 ] In conclusion, the Crown’s appeal is allowed and a new trial is ordered. The Respondent is ordered to appear in the Ontario Court of Justice at College Park on June 5, 2012 at 10:00 a.m. to set a date for a new trial.

TROTTER J.

Released: May 14, 2012