COURT FILE NO.: 151/11

DATE: 2012-05-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Shane Rutherford

BEFORE: M.A. Code J.

COUNSEL: Lisa Jacek, for the Appellant

Brian Doody, for the Respondent

HEARD: May 18, 2012

ENDORSEMENT

A. OVERVIEW

[1] On January 26, 2010, the Respondent Shane Rutherford (hereinafter, Rutherford) was charged with impaired driving and "over 80". On September 28, 2011, some twenty months later, Ray J. stayed the charges due to a violation of s. 11(b) of the Charter of Rights. This was the third trial date that had been set for this case. The two earlier trial dates had both been adjourned because of actions taken by Rutherford.

[2] After analyzing the various periods of delay, Ray J. concluded that there was only one period that was unreasonable. She stated:

"The only period of concern to me is June 3 until July 22 [2010], a period of seven weeks delay attributable to the Crown. It was not reasonable for the Crown to delay this long before providing disclosure."

[3] In spite of finding only seven weeks of unreasonable or unjustified delay, and in spite of the accused having caused the adjournments of the two earlier trial dates, the trial judge concluded that s. 11(b) of the Charter had been violated and that a stay of proceedings was appropriate. The Crown appeals from that decision. I am satisfied that the appeal should be allowed, the stay should be set aside, and Rutherford must appear in the Ontario Court for trial on this matter.

B. FACTS

(i) History of the Proceedings

[4] The chronology in the case at bar involved a number of periods of delay where the underlying causes were relatively straightforward. I will focus on the few contentious time periods.

[5] Two separate Informations were laid against Rutherford on January 26, 2010. There was a federally prosecuted Information charging possession of a controlled substance, which was alleged to be "ecstasy", contrary to the Controlled Drugs and Substances Act. There was also a provincially prosecuted Information charging impaired driving and "over 80", contrary to the Criminal Code. It was only the latter Information that was the subject of the s. 11(b) Motion as the former Information had been withdrawn, as will be discussed below.

[6] On the first appearance, on March 11, 2010, the federal Crown delegated prosecution of the drug Information to the provincial Crown. Thereafter, it was only the provincial Crown who conducted both prosecutions.

[7] The accused retained counsel in a timely way and the Crown provided initial disclosure. The accused did not have to appear in court, as his counsel filed a designation and appeared on his behalf. He had been released by the police without any bail conditions. The parties needed time to review the disclosure and to hold a Crown pre-trial meeting. Defence counsel was ill at one point and requested further time to review the initial disclosure. After reviewing the disclosure, counsel made a number of follow-up requests for further disclosure. All of these preliminary tasks took some time and resulted in the case being remanded four times, between January 26, 2010 and June 3, 2010. The trial judge had no difficulty in characterizing this period of four months and eight days as "neutral intake".

[8] The second time period, from June 3, 2010 to July 22, 2010, was the one period of unjustified or unreasonable delay identified by the trial judge. The defence requested various historical records concerning inspection, calibration and maintenance of the Intoxilyzer used in Rutherford's breath sample testing. These kinds of records were not part of the normal Crown Brief in drinking and driving cases but some counsel began requesting them in cases that arose after passage of the Bill C-2 drinking and driving amendments to the Criminal Code in 2008. The Crown in Ontario took the position that these historical records were not relevant and a number of disclosure Motions were argued in the Ontario Court of Justice during 2009 and 2010. There was no binding authority on the point and the Ontario Court of Justice decisions went both ways, with some judges finding the historical records to be relevant and ordering disclosure while other judges held that the records were not relevant. See: R. v. Emanuel, 2012 ONSC 1132 at paras 16 and 20-21.

[9] Around the time when Rutherford's counsel was requesting the historical Intoxilyzer records, the Crown decided to change its position and make disclosure of some of these records, "without prejudice" to its position that they were not relevant. This change in position was made for pragmatic reasons, in order to avoid delay and repeated disclosure Motions at the Ontario Court of Justice level, while awaiting some kind of binding appellate decision on the point. On July 22, 2010, the Crown provided disclosure of the records to Rutherford's counsel on a "without prejudice" basis. The trial judge held that the Crown took an unreasonable amount of time in making its pragmatic decision to disclose on a "without prejudice" basis and attributed this seven weeks of delay to the Crown.

[10] The third period of delay, from July 22, 2010 to August 26, 2010, was requested by the defence in order to review the historical records, to retain a defence expert to analyze them, to make a follow-up request for further records, and to then conduct a Crown pre-trial. The trial judge characterized some of this period as neutral and some of it as being due to a defence waiver of s. 11(b) of the Charter. I do not read the record as disclosing any defence waiver of s. 11(b). However, it is clear that the defence requested this period of delay for traditional intake purposes and the entire month of delay can properly be characterized as neutral. The Crown provided further historical records, that were the subject of defence counsel's follow-up request, on September 24, 2010. At this point, disclosure was complete.

[11] The fourth period of delay, from August 26, 2010 to September 22, 2010, was requested by the parties and required by the Court, in order to schedule and conduct a judicial pre-trial. The trial judge characterized this period of twenty-seven days (or one month) as institutional delay.

[12] There was one further development on August 26, 2010 that was to become important on the s. 11(b) Motion. The Crown advised that the analyst's report had just been received, in relation to the drug possession charge, and that "given the findings" the Crown was withdrawing the Controlled Drugs and Substances Act charge. The analyst's report was dated March 30, 2010 and it concluded that the substance in question was not a controlled substance. There is no explanation in the record as to why it took almost five months before Crown counsel received the analyst's report. In any event, the Crown promptly withdrew the drug possession Information and it was no longer before the Court in any of the proceedings after August 26, 2010.

[13] The fifth period of delay is important and it is more contentious. On September 22, 2010, after the judicial pre-trial, the parties appeared in court and set March 11, 2011 as the date for a full day trial. They also set January 5, 2011 as the date for a two hour s. 11(b) Charter Motion. Nothing was said on the record about counsel seeking the earliest available date or about counsel having earlier available dates. The trial judge characterized this entire period of five months and nineteen days as institutional delay.

[14] The s. 11(b) Motion did not proceed on January 5, 2011 and the trial did not proceed on March 11, 2011 because of a series of steps taken by Rutherford. On October 22, 2010, a month after setting the above dates for trial and for the s. 11(b) Motion, counsel appeared before Mocha J. and asked to be removed from the record. Counsel explained that he had not been sufficiently retained. Rutherford consented to his counsel being removed from the record and he advised Mocha J. that "I expect to have new counsel retained by then", that is, by the time of the two scheduled dates. Mocha J. instructed Rutherford to be sure his new counsel "make themselves available" for the two scheduled dates. She also ordered Rutherford to appear on December 1, 2010 in order to confirm that his new counsel is "ready to proceed".

[15] On December 1, 2010, Rutherford failed to appear in court and a bench warrant was issued, with discretion, returnable within two weeks. On December 15, 2010, Rutherford appeared and the bench warrant was rescinded. When asked if he had retained a lawyer, Rutherford advised, "I'll be working with Brian Doody". Harris J. advised Rutherford to "make sure your lawyer knows that the s. 11(b) is going to go ahead on that day", that is, on January 5, 2011.

[16] On January 5, 2011, the s. 11(b) Motion had not been filed. Brian Doody appeared and advised that he was an articling student and that "our firm was retained by the accused on December 31, 2010" and that the accused had been "unrepresented from October 22 until December 31, 2010". Since Mr. Doody's firm had only just been retained, he asked that the s. 11(b) Motion be adjourned to the March 11, 2011 trial date. He submitted that the Motion and the trial could both be heard on the one day. Hryn J. granted the adjournment, while implying that Rutherford's conduct could give rise to certain inferences about his s. 11(b) Motion. Hryn J. stated:

"There will be a transcript of today's proceedings so the record will speak for itself as to who asked for what today. And the accused's lateness in retaining new counsel may or may not affect his argument that he was always intent on having a speedy trial, but that's a different issue, and I will leave that for the argument".

Mr. Doody undertook to have the s. 11(b) Motion filed in a timely way and in accordance with the Rules.

[17] The sixth period of delay is from March 11, 2011, the first trial date, to July 7, 2011, the second trial date. The trial judge implicitly attributed this period of delay to the defence. Counsel for Rutherford implicitly conceded the point as he did not seek to rely on any delay after March 11, 2011, when he eventually came to argue the s. 11(b) Motion. The trial did not proceed on March 11, 2011, nor did the s. 11(b) Motion proceed, for a number of reasons. First, the s. 11(b) Motion had still not been filed with the Court. It was served on the Crown at 9:00 a.m. on the trial date. The Crown was ready to proceed with the trial and its witnesses were present. Mr. Doody appeared and sought relief from the Rules. In the midst of arguing for this relief, and in seeking leave to argue the s. 11(b) Motion on short notice, it emerged that Mr. Doody was not yet called to the bar. As such, he was not entitled to appear on a summary conviction matter carrying an eighteen month penalty, such as the case at bar. Once this became clear, Mr. Doody submitted that he had made a "good faith error" in thinking that he could conduct the Motion and the trial. He requested an adjournment and conceded that he "may be making an implicit waiver of my client's [s. 11(b)] rights moving forward". Hryn J. sought clarification as to whether Rutherford had been aware of Mr. Doody's status and Rutherford replied, "I was aware that he is an articling student".

[18] Faced with the options of summarily dismissing the s. 11(b) Motion and proceeding to trial with an unrepresented accused or granting the adjournment, Hryn J. took the latter course with the Crown's concession that it was the better of the two options. Hryn J. reminded Mr. Doody of the importance of ordering all of the transcripts, including transcripts of the January 5 and March 11, 2011 proceedings. He adjourned the case to July 7 and 8, 2011 for a half day s. 11(b) Motion and a one and a half day trial. The length of the trial had expanded somewhat as Mr. Doody was planning some additional Charter Motions

[19] The seventh and last period of delay is from July 7, 2011, the second trial date, to September 26, 2011, the third trial date. Like the previous period of delay, the trial judge implicitly treated this last period as defence delay. On July 7, 2011, Mr. Doody appeared. He was now called to the bar. The accused was arraigned and entered pleas of not guilty before Ray J. The Crown moved to summarily dismiss the s. 11(b) Motion on the basis that the Applicant's Record was missing numerous transcripts. The two appearances before Hryn J., on January 5 and March 11, 2011, were both missing and a number of the early remand appearance transcripts were missing. Mr. Doody submitted that he did not need them, for purposes of his Motion, as he was not relying on them. The Crown advised that she may be relying on them. Mr. Doody submitted that his client was impecunious and could not afford to pay for the missing transcripts.

[20] Ray J. directed a trial of the issue of Rutherford's alleged impecuniosity. He testified that he was thirty-nine years old, he had owned and operated a restaurant for fifteen years, from 1990 to 2004, making money during some years but eventually selling the business at a loss. He now lived at home with his parents and was a full-time student studying at an English university. He paid about $16,000 in tuition, about $2,000 a month in living expenses, and he had paid about $14,000 towards his defence in this case. He did part-time work for his mother in her condominium management business and she gave him free room and board and an allowance. His education was his priority and he had chosen not to seek employment. He had a learning disability and some reading impairment. Most of his income came from grants and loans. He had discharged his first lawyer, after paying him a $10,000 retainer, as he could no longer afford him. He explained that money had been spent responding to the drug possession charge and appearing on multiple court dates. These appearances generated more transcripts which had to be ordered for the s. 11(b) Motion. These expenses "slowly ate through all of my retainer" and there was insufficient for the two scheduled court dates, that is, for both the s. 11(b) Motion and the trial.

[21] Ray J. agreed with the Crown that the missing transcripts were "essential" to the s. 11(b) Motion. However, she also agreed with Mr. Doody that Rutherford was impecunious and so she ordered the missing transcripts herself and adjourned the matter. The Court set September 26, 2011 for the s. 11(b) Motion and set September 28, 2011 as a third trial date. It was on the latter date that the s. 11(b) Motion was granted.

[22] In summary, the various periods of delay, as found by the trial judge, were characterized as follows:

(i) January 26, 2010 – June 3, 2010: four months and eight days of neutral intake;

(ii) June 3, 2010 – July 22, 2010: seven weeks of Crown delay in providing disclosure of the Bill C-2 historical Intoxilyzer records;

(iii) July 22, 2010 – August 26, 2010: one month of neutral intake for the defence to review the historical records, retain an expert to analyze them, make a follow-up disclosure request and hold a Crown pre-trial;

(iv) August 26, 2010 – September 22, 2010: one month of institutional delay for the judicial pre-trial;

(v) September 22, 2010 – March 11, 2011: five months and nineteen days of institutional delay from the set date appearance to the first trial date;

(vi) March 11, 2011 – July 7, 2011: four months of defence delay from the first trial date to the second trial date;

(vii) July 7, 2011 – September 26, 2011: two months and nineteen days of defence delay from the second trial date to the third trial date.

(ii) Prejudice to s. 11(b) interests

[23] Rutherford did not file an Affidavit alleging actual prejudice and it initially appeared that the s. 11(b) Motion would proceed on the basis of inferred prejudice only. However, Mr. Doody decided to call Rutherford on the Motion, after various exchanges with the trial judge.

[24] Rutherford testified on the Motion and adopted his earlier evidence before Ray J. on the second trial date. In addition, he testified that he was currently engaged in certain volunteer activities:

"I work in the disability community. My current role and responsibilities is I'm a companion sailor at the Disabled Sailing Association of Ontario. … my role and responsibility is to escort persons who have physical, mental or developmental disabilities into our accessible boats so they can enjoy a day on the water."

[25] He also testified that "I'm on the Fundraising Committee" of the Association. In cross-examination, he clarified that he only began these volunteer activities after the present charges were laid, that is, during the summer of 2010. He also reiterated that he had carried on with this "volunteer sailor" work and the "fundraiser" work for the Association throughout "the past year".

[26] The only impact that the present charges had on this volunteer work, according to Rutherford's testimony, was that he was asked to stand for election to the Association's Board of Directors but he felt that questions as to his suitability might be raised "because I had charges pending". He testified that this concern applied to both the drug possession charge and the impaired driving charge. He initially thought that the election to the Board was in the summer of 2010 but, in cross-examination, he testified that "I think it [the election] was in the fall of last year", that is, in the fall of 2010. He also testified that he hesitated in standing for the Board election "because there were the question of these charges".

[27] In terms of his impecuniosity, and any financial prejudice, he clarified that the $10,000 retainer he paid to his first lawyer was sufficient to carry the case through the s. 11(b) Motion that had been scheduled for January 5, 2011. The first lawyer asked for a substantial further retainer to pay for the trial that had been scheduled for March 11, 2011. It was this further retainer, for the second scheduled date, that Rutherford could not afford and that led him to retain Mr. Doody.

[28] Rutherford was unsure as to what work, if any, had been done by his first lawyer in relation to the drug possession charge. At one point, he testified that "there was nothing to do" in relation to the drug charge and that "I can't speak to that … about what exactly he did", in relation to the drug charge. He thought his first lawyer was "reviewing case law". He had received itemized accounts from his first lawyer but he did not produce them to clarify what work, if any, was done in relation to the drug charge.

[29] Finally, in relation to his learning and reading disabilities, Rutherford testified that he does computer work for his mother in her condominium management business, he drives a car, he had operated a restaurant for fifteen years, and he had almost completed his post-graduate degree program in international law at Oxford Brooks University in England. He continued to attend university in England between August and October of 2010 and he then worked on his dissertation from home in Toronto. It was almost complete and he was about to send it to an editor. He had not applied for any jobs in the past year.

C. LAW

(i) Introduction

[30] The Crown raises two broad grounds of appeal. I am satisfied that they both have merit.

[31] The first ground of appeal is that the trial judge erred in her characterization of three periods of delay. The trial judge found seven weeks of Crown delay, caused by late disclosure, and six and a half months of institutional delay, caused initially by the judicial pre-trial and then by the time from the set date appearance to the first trial date. The Crown submits that all three periods of delay were erroneously characterized and should have been treated as neutral delay or as defence delay.

[32] The second ground of appeal is that the trial judge erred in concluding that there was actual prejudice to s. 11(b) interests in this case. The Crown submits that the trial judge made palpable and over-riding factual errors, relating to her finding of prejudice, and failed to consider the claim of prejudice in the context of Rutherford's overall conduct throughout the proceedings.

(ii) Properly characterizing the three contentious periods of delay

[33] The first of the three periods of delay that are disputed is from June 3, 2010 to July 22, 2010, while the parties awaited production and disclosure of the historical Intoxilyzer records. As already noted, this was the only period of delay that concerned the trial judge. She found that the Crown had unreasonably delayed for seven weeks before producing the records:

I appreciate that the Crown considers these items not to be relevant but had that issue been litigated the Court would have found, as it has in a wealth of cases, that they were not clearly irrelevant and disclosure would have been ordered. It is the Crown's policy to disclose them on a "without prejudice" basis and the Crown did eventually disclose it. It is pre-existing disclosure and should not have taken so much time to disclose. One month should have been more than enough time to produce it, so I would characterize all of the time until June 3 as neutral intake, but the period commencing from June 3 until July 22 when the items were disclosed is delay attributable to the Crown … It was not reasonable for the Crown to delay this long before providing disclosure. [Emphasis added].

[34] The factual background to this issue is that defence counsel wrote and requested the historical records on April 23, 2010. The Crown responded on May 5, 2010, advising that it would request the records from the police but the Crown maintained its position that the records were irrelevant. Other less contentious items of further disclosure were also being requested and reviewed during this period. It can be inferred, from the correspondence and from the remand appearances, that there were three reasons explaining why it took the Crown three months from the date of the request for the records (April 23, 2010) to the date when they were eventually disclosed (July 22, 2010). First, the historical records had to be obtained, then they had to be reviewed by a Crown who had been assigned to the file and, finally, a pragmatic and principled policy decision had to be made, in all the Bill C-2 production cases, as to whether to keep litigating the relevance of the historical records while awaiting a binding appellate decision.

[35] The trial judge acknowledged that the Crown had taken a "responsible" approach, that was "not … arbitrary," to the issue of disclosing the historical records:

The Crown has taken the responsible decision to disclose this material when it is requested as additional disclosure on a "without prejudice" basis to ongoing litigation that is pending before the appeal courts and any position that they take in future cases.

I am not persuaded by defence submissions that the Crown was arbitrary in the manner in which it handled the additional disclosure request. They were handled in the normal way that the Crown has been handling such requests ever since the law changed and there has been a huge amount of such requests. The Crown maintains that the material disclosed on July 22 is not relevant. [Emphasis added].

[36] It is apparent from the record, and from the trial judge's findings, that there was a good faith dispute between the parties about the relevance of the records and that the Crown dealt with it in a "responsible" way that was "not … arbitrary". It was also "the normal way" in which the Crown ended up dealing with a large number of similar requests at the time, all of them flowing from the 2008 legislative changes found in Bill C-2.

[37] The governing law in relation to this kind of issue was recently set out by the Court of Appeal in R. v. Schertzer et al (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 113-117 (Ont. C.A.) where the Court stated:

Before this court, counsel for the Schertzer respondents submit that most of the time consumed in pre-trial motions was a direct consequence of Crown disclosure practices, and that this time should therefore be attributed to the Crown. … if the trial judge was of the view that, for example, the Crown acted arbitrarily or in bad faith in refusing to make disclosure … the resulting delay could be attributed to the Crown.

… we have not been persuaded that the time taken to resolve the disclosure issues during the pre-trial motions was due to arbitrary or bad faith conduct by the Crown. We would consider the five months spent on pre-trial motions part of the inherent time. [Emphasis added].

The Court in Schertzer, supra at para. 131, also went on to note that when counsel's defence strategy is "to pursue every possible relevant piece of information", rather than "choose a more focused attack", it will "result in significantly longer inherent time requirements".

[38] These principles were recently applied in another one of the Bill C-2 disclosure cases that were moving through the Ontario Court of Justice in 2009 and 2010. In that case, R. v. Emanuel, supra at paras. 20-21, the trial judge characterized the delay occasioned by the disclosure dispute in very different terms from those used by the trial judge in the present case. Knazan J. stated:

Mr. Emanuel was definitely entitled to request the disclosure, but his disclosure request, to use the words that he uses in arguing delay occasioned by the Crown, required time to be set aside to argue the disclosure motion. I would not add the word unnecessarily as he does in attributing the delay to the Crown, because it is the very nature of the case that necessitated the two days being set aside with the first reserved for a disclosure application. By the very nature of the case, I mean what it is about, breath readings, the legislation in force at the time the charge was laid, the recency of that legislation, the continuing unresolved issue of relevance and defence entitlement to the historical evidence regarding the approved instrument, and the requirement of a judicial pre-trial and two days of trial in view of all of that. The request for the disclosure, whose relevance is yet to be determined either in this case or by a court whose conclusion is binding on this court is as much a voluntary action on the part of the accused intended to further his case: R. v. Morin, paragraphs 44 and 45, as it is a result of the Crown's original position.

… this was a reasonable response to a reasonable disclosure request that turned this case into a more complex case than it would have been had the disclosure request not been made. [Emphasis added].

On further appeal to this Court, the above passage from the trial judge's reasons was adopted. The Court held:

The defence disclosure request had added to the complexity of the case because it caused a reasonable dispute between the parties that would inevitably take some period of time to litigate, in advance of the trial.

[39] Unlike Schertzer, the Crown in the present case decided not to litigate the disclosure dispute and resolved it on a pragmatic and principled basis. This is also what eventually happened in Emanuel, around the same time in July, 2010. Having found that the Crown acted in a "responsible" way and was "not … arbitrary", in resolving the dispute without the necessity of a s.7 disclosure Motion, it was not open to the trial judge to also hold that the Crown had caused the delay. In essence, the trial judge simply disagreed with the Crown's position on relevance, holding that she would have ordered disclosure of the historical records and that the Crown had moved too slowly in deciding that it should make disclosure on a "without prejudice" basis. This is not a correct approach to this kind of issue, when allocating s. 11(b) causes for periods of delay. Applying the approach that emerges from Schertzer, there was a reasonable disclosure dispute between the parties and that was the cause of the delay. There was no "arbitrary or bad faith conduct" by the Crown that caused this period of delay. I would therefore characterize the seven week period of delay, while obtaining, reviewing and deciding to produce the historical records, as part of the inherent time requirements of the case. It carries neutral weight in the s. 11(b) analysis.

[40] The second disputed period of delay was the one month from August 26, 2010 to September 22, 2010, while the parties scheduled and attended a judicial pre-trial. The trial judge held that:

… this is institutional delay and it is generally regarded as such in delay cases.

[41] It is true that some authorities have held, in some circumstances, that delay caused by the need to conduct a judicial pre-trial is systemic or institutional delay. See: R. v. G. (C.R.) (2005), 2005 CanLII 32192 (ON CA), 206 C.C.C. (3d) 262 (Ont. C.A.). However, more recent authorities have clarified that this kind of delay is part of the inherent time requirements of the case, provided the court is available for a judicial pre-trial within a reasonable time. See: R. v. Tran, 2012 ONCA 18; R. v. Khan (2011), 2011 ONCA 173, 270 C.C.C. (3d) 1 at paras. 44-5 (Ont. C.A.); R. v. Emanuel, supra at paras. 14-15. In particular, in R. v. Tran, supra at para. 34, Simmons J.A. stated, on behalf of the Court:

Dealing first with the judicial pre-trial delay between December 4, 2009 and January 19, 2010, it seems to me that requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.

[42] I am satisfied that the time required for the judicial pre-trial in this case, which was less than one month, was reasonable and necessary and was part of the inherent time requirements. It carries neutral weight in the s. 11(b) analysis. This case, in particular, was in need of very firm case management throughout.

[43] The third and last disputed period of delay is from September 22, 2010 until March 11, 2011. This was the period between the set date appearance and the dates set for the s. 11(b) Motion and for the trial. The trial judge held, without any analysis, that this entire five and a half month period was systemic delay. The Crown had conceded that only some of this period was systemic delay.

[44] In my view, the Respondent failed to establish that any of the delay during this period was caused by systemic or institutional congestion in the courts. The correct meaning of "institutional delay" was reiterated by the Court of Appeal in R. v. Tran, supra at para. 32:

Second, parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. See Morin at pp. 791-2, 794-5, 805-806. See also Lahiry at paras. 25-37,citing Morin, R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814, R. v. M. (N.N.) (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (C.A.), Schertzer, R. v. Meisner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.), and R. v. Khan, 2011 ONCA 173, 277 O.A.C. 165.

[45] There are three distinct circumstances in the present case which infer that the Respondent was never ready to proceed with his trial at any point in this five and a half month period. First, his counsel never asked for the earliest available date and never suggested that he had earlier dates available in his calendar. The record is silent on this point. Second, Rutherford discharged his counsel within a month of setting these dates and indicated that he was in the process of retaining new counsel to represent him on the already scheduled dates. Third, it took Rutherford over two months to retain new counsel, who was an articling student, and that new counsel was unable and unprepared to file the s. 11(b) Motion prior to either the January 5, 2011 or the March 11, 2011 scheduled dates.

[46] In these circumstances, it is apparent that the Respondent needed all of this five and a half month period, and more, to properly retain new counsel who could appear for him on a trial date and he also needed time to prepare and file a proper s. 11(b) Motion Record and Factum. The Respondent was simply not "ready to proceed" at any point during this period and so systemic delay never commenced as a cause of any of the delay. I would characterize the delay as neutral, and due to the inherent time requirements of the case, as Rutherford was retaining counsel and was preparing his pre-trial Motion throughout this period. See: R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 at para. 60 (S.C.J.).

[47] In conclusion on this ground of appeal, none of the three disputed periods of time carried any weight in the s. 11(b) analysis. They were all neutral due to the inherent time requirements of the case.

[48] The Respondent submits, on appeal, that some of the delay after March 11, 2011 should be characterized as institutional delay. At trial, counsel had implicitly conceded that all of the delay after March 11, 2011 was defence delay and the trial judge so found. The Respondent's submission, on appeal, is that he was ready to proceed on July 7, 2011 and that he did not cause the final adjournment on this date, which was ordered because of the missing transcripts. He submits that the transcripts were either unnecessary or, if necessary, had not been ordered because of his "impecuniosity". Ray J. found that the missing transcripts were "essential" to the s. 11(b) Motion. Hryn J. had also advised counsel to order them. I am satisfied that the transcripts were important in assessing the Respondent's overall course of conduct. The Respondent's "impecuniosity", as a motive or explanation for his failure to order the transcripts, cannot alter the cause of the delay. It was an action or decision by the defence, and not institutional congestion, that caused the delay. I will deal further with the facts relating to the Respondent's "impecuniosity", when discussing the issue of prejudice below.

(iii) The trial judge's finding of actual prejudice to s. 11(b) interests

[49] There is no suggestion that the Respondent's liberty interests or fair trial interests were ever impaired by any of the delays in this case. The sole focus was on his security of the person.

[50] The trial judge's detailed findings on the issue of prejudice are as follows:

The Court heard evidence substantiating that Mr. Rutherford was too impecunious to order transcripts and ruled that the Court would order the transcripts rather than dismissing the matter summarily for reasons that are a matter of record and do not bear repeating today. Mr. Shane Rutherford testified on the application. My interpretation of his evidence is that these charges have not so far delayed him in his ability to pursue his studies.

His dissertation is being completed right on schedule according to the requirements of Oxford Brooks University in Oxford England and Mr. Rutherford expects to receive his LLM in International Law following completion of this dissertation. The problem is not completion of his studies according to the schedule. The problem is that retaining counsel has been expensive, this on top of the expenses of pursuing his LLM studies has created financial pressures.

In addition to the expenses incurred by his education, Mr. Rutherford has had to retain a lawyer. The retainer he paid his first lawyer, which was supposed to cover the trial. To use Mr. Rutherford's expression, "it got eaten up" because his lawyers had to work very hard to obtain the additional disclosure, the numerous communications with the Crown, court appearances, disclosure review and consulting with experts, which had used up the retainer. Mr. Rutherford could not keep up with the fees and expenses of his first lawyer so he agreed to remove him as counsel of record and he had to find a less expensive one.

The five-month delay in withdrawing the drug charge also caused prejudice. During this time Mr. Rutherford could not volunteer as a companion sailor or fundraise with people with physical and mental disabilities because of the drug charge. I am persuaded that the financial pressure and loss of volunteer opportunities attested to by Mr. Rutherford constitute real and not only inferred prejudice. They are the direct consequence of delays and not attributable to the charges alone.

[51] The trial judge went on to find that the two periods of institutional delay that she had found, which totaled six and a half months, were "well within the Morin guidelines". During argument she had stated, correctly, that "institutional delay is not really the issue here". The trial judge stated that "the only period of concern to me" was the seven week delay in producing the historical records. She concluded:

[While] I would not go so far as to accept the defence submission that the Crown has been arbitrary in this case, I still find the delay to be unacceptable given the context of an uncomplicated case and the real prejudice suffered by the accused.

[52] As I read the above reasons, the trial judge found actual prejudice to the Respondent's security of the person interests in the specific form of "financial pressure and loss of volunteer opportunities". She found that these forms of prejudice were "the direct consequence of delays".

[53] I agree with the Crown that there were palpable and over-riding factual errors in the above findings. First, the finding that the Respondent "could not volunteer as a companion sailor or fundraise with people with physical and mental disabilities because of the drug charges" was not accurate. I have already summarized the evidence on this point. In fact, the Respondent did not even begin to volunteer and to fundraise for this particular Association until the summer of 2010, that is, well after the charges had been laid. The evidence was that he carried on with these activities throughout the 2010-2011 time period, without any apparent impairment. Furthermore, the impact of the delayed withdrawal of the drug charge appears to have been non-existent. The only prejudice the Respondent claimed was that he did not run for the Board of Directors of the Association because of his concern that questions might be asked about his suitability. He agreed that this concern related to both the drug charge and the impaired driving charge. Furthermore, he believed that the election to the Board was not until "the fall" of 2010, that is, after the drug charge had been withdrawn at the end of August, 2010.

[54] Once the facts are properly understood, there was no evidence that the Respondent suffered any "loss of volunteer opportunities" or that the failure to withdraw the drug charge at an earlier date had impaired his volunteer activities in any way.

[55] The second area where the trial judge erred, in her appreciation of the facts relating to the claim of prejudice, was in her findings concerning the $10,000 retainer that Rutherford had paid to his first counsel. The trial judge found that Rutherford was "too impecunious to order transcripts". She held that this state of impecuniosity came about due to circumstances tied up with delays in the case which had exhausted the initial $10,000 retainer. For convenience, I will repeat her findings on this point:

The retainer he paid his first lawyer, which was supposed to cover the trial. To use Mr. Rutherford's expression, "it got eaten up" because his lawyers had to work very hard to obtain the additional disclosure, the numerous communications with the Crown, court appearances, disclosure review and consulting with experts, which has used up the retainer.

[56] In fact, the evidence on the s. 11(b) Motion was to the effect that the initial $10,000 retainer was not "used up" or "eaten up". The first lawyer advised Rutherford that the retainer was sufficient to complete the s. 11(b) Motion, scheduled for January 5, 2011. It was only insufficient to conduct both the s. 11(b) Motion and the one day trial, scheduled for March 11, 2011, in the event that the s. 11(b) Motion was unsuccessful and the case had to proceed to trial. The evidence was also to the effect that Rutherford managed to find an additional $4,000 to pay for his defence in the case, as he testified that he had expended a total of $14,000. Finally, it was never established whether any part of the retainer had been expended on defending the drug charge, prior to its withdrawal. It will be recalled that the drug charge was withdrawn prior to the judicial pre-trial and prior to setting any dates for trial.

[57] In light of the above factual record, there was no evidence that the Respondent was too impecunious to order transcripts for the s. 11(b) Motion, or that his initial retainer of counsel was "eaten up" and "used up" by the delays, or that the failure to quickly withdraw the drug charge caused "financial pressure". The evidence indicated that the Respondent had $14,000 available, for purposes of his defence, and that he made normal cost-benefit decisions and choices as to how to expend it in the conduct of that defence.

[58] Aside from the above factual errors relating to the finding of prejudice, the trial judge made a legal error. She stated the following in her conclusion on the issue of prejudice:

Mr. Rutherford has suffered real prejudice. He has also been diligent right from the outset about pursuing his rights. He had counsel retained by his second appearance. His first counsel went about very diligently pursuing disclosure. Despite his impecuniosities, Mr. Rutherford found a second counsel. … I also appreciate that I must consider the entire delay. [Emphasis added].

[59] In effect, the trial judge looked only at the Respondent's conduct during the early stages of the proceedings, in finding that "he has also been diligent … about pursuing his rights". Had she considered his conduct throughout "the entire delay", as she was obliged to do, she would have concluded that he was not diligent. Hryn J. stated during the January 5, 2011 proceedings that Rutherford's failure to retain new counsel in a timely way and his failure to proceed with the s. 11(b) Motion raised inferences as to whether "he was always intent on having a speedy trial". This inference became overwhelming when Rutherford was also not ready to proceed on either of the March 11, 2011 or July 7, 2011 scheduled trial dates.

[60] The law on this point is summarized in R. v. Lahiry, supra at paras. 76-85, based on the principles that emerge from R. v. Conway (1989), 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289 (S.C.C.), R. v. Askov et al (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.), and R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.). In summary, the Respondent caused substantial periods of delay for his own purposes and so the normal inference of prejudice was negatived.

[61] Absent the trial judge's factual errors on the issue of prejudice, and after properly applying the above legal principle relating to prejudice, I am satisfied that the claim of actual prejudice in this case was either very weak or non-existent. There was also no inferred prejudice as there were no periods of unreasonable or unjustified delay.

D. CONCLUSION

[62] I am satisfied that there were no periods of unreasonable delay in this case, that is, there was no delay caused either by the Crown or by institutional congestion. I am also satisfied that there was little or no prejudice to s. 11(b) interests. There was also a strong societal interest in a trial on the merits as the particular circumstances of the alleged offences were quite aggravated. Accordingly, there was no basis for finding a violation of s. 11(b) of the Charter.

[63] The appeal is allowed, the stay of proceeding is set aside, and Rutherford shall appear at Old City Hall on the date thirty days from the release of these reasons.

M.A. Code J.

Date: May 24, 2012