ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA 65/11 AP
DATE: 20120613

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JULIE RICHARDS Appellant

Brad Demone , for the Crown/Respondent
Adam Little , for the Appellant

HEARD: June 12, 2012

KELLY J.

REASONS FOR DECISION

[ 1 ] On December 14, 2008, the Appellant was charged with the offences of impaired driving and “Over 80 mgs.” contrary to the Criminal Code , R.S.C., 1985, c. C-46. On January 14, 2011, the Appellant sought a stay of proceedings alleging that her right to be tried within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed. The application was denied by Ritchie J.

[ 2 ] A second application to stay the proceedings was brought by the Appellant on March 14, 2011. Again, Ritchie J. dismissed the application. Thereafter, he convicted the Appellant on both charges but stayed the impaired charge.

[ 3 ] The Appellant submits that the trial judge erred in law by failing to find that her right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter had been violated. I disagree.

[ 4 ] What follows are my reasons.

The Facts

[ 5 ] The total period of delay was approximately 24 months from the laying of the Information to the start of trial and approximately 26 months to its completion. The proceedings during this period of time may be summarized as follows:

Date
Occurrence
Time Lapse

December 14, 2008
Arrest.

January 7, 2009
Information sworn.

January 29, 2009
First appearance with a paralegal – disclosure provided.
22 days (from January 7, 2009)

February 26, 2009
Second appearance – paralegal attended.
28 days (from January 29, 2009)

March 26, 2009
Paralegal attended and adjourned the matter for an in-court pre-trial.
28 days (from February 26, 2009)

May 1, 2009
Counsel appeared, filed a designation and adjourned the matter to conduct a Crown pre-trial.
35 days (from March 26, 2009)

May 14, 2009
Counsel appeared and adjourned the matter for a judicial pre-trial.
13 days (from May 1, 2009)

June 17, 2009
Judicial pre-trial conducted and the matter was adjourned so that Counsel could obtain instructions.
34 days (from May 14, 2009)

July 30, 2009
Counsel appeared and adjourned the matter to retain a toxicologist. Section 11 (b) waived until the next appearance.
43 days (from June 17, 2009)

September 3, 2009
Counsel appeared and adjourned the matter to retain an expert. Section 11 (b) waived to the next appearance.
35 days (from July 30, 2009)

October 8, 2009
Trial dates set for May 13 and 14, 2010. Although Counsel was available on earlier dates, he was not available on April 15, 16, 26 and 27 as offered by the Trial Co-ordinator.
35 days (from October 8, 2009)

April 29, 2010
The Crown sought an adjournment of the trial due to the unavailability of the Officer in Charge. New dates were set.
203 days (from April 29, 2010)

May 13 and 14, 2010
The trial dates were vacated pursuant to the Crown adjournment on April 29, 2010.

November 17, 2010
Defence Counsel sought an adjournment of the trial date due to the Appellant’s illness.
185 days (from April 29, 2010)

January 14, 2011
Defence Counsel sought an adjournment of this trial date due to the late delivery of the Crown’s response to the s. 11 (b) argument. The adjournment request to another date was denied but allowed until the afternoon. The application to for a stay was denied.
58 days (from November 17, 2010)

March 14, 2011
The trial was continued. Further evidence was heard and the trial judge dismissed the second application to dismiss.
59 days (from January 14, 2011)

March 21, 2011
The trial judge convicted the Appellant.
7 days (from March 14, 2011)

March 23, 2011
The Appellant was fined $1,000 and prohibited from driving her motor vehicle for 16 months.
2 days (from March 21, 2011)

Issues

[ 6 ] The Appellant submits that the trial judge mischaracterized certain periods of delay resulting in a miscalculation of the unreasonable delay. She also submits that the trial judge erred in finding that she suffered no prejudice from the delay.

a. The Calculation of Institutional and Crown Delay

[ 7 ] The trial judge found that there was 12 months of unreasonable delay. Counsel for the Appellant submits that the unreasonable delay is either 14 months and 12 days or 16 months and 12 days. I find that the unreasonable delay is 12 months, 9 days for the following reasons.

January 7, 2009 to July 30, 2009

[ 8 ] The Appellant submits that the inherent delay up to the setting of the trial date should be 5.5 months rather than the 6.5 months attributed by the trial judge. She submits that the month between the setting of the judicial pre-trial and the conduct of the judicial pre-trial should be considered institutional delay rather than inherent delay. I do not agree.

[ 9 ] The Appellant relies on the reasoning of Rosenberg J.A. in R. v. C.R.G. [^1] where he held that the “delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case”. While this principle may be applicable when time between the two dates is lengthy, that is not the case here.

[ 10 ] More recent decisions from the Court of Appeal [^2] have confirmed the usefulness of a judicial pre-trial and held that the time leading up to the judicial pre-trial should be characterized as part of the inherent time requirements of the case if the Court is available for a judicial pre-trial within a reasonable period of time. In this case it was: the judicial pre-trial was held 33 days after it was set. Additionally, there was a reasonable disclosure dispute that was ultimately resolved. I find this period of time to be reasonable and that the judicial pre-trial was a beneficial case management tool. As such, this period of 1 month and 5 days shall be categorized as inherent delay.

[ 11 ] Based on this analysis, I do not find that the trial judge mischaracterized the inherent delay in this matter as being 6.5 months.

October 8, 2009 to May 14, 2010

[ 12 ] On October 8, 2009 the matter was scheduled for trial on May 13 and 14, 2010. Trial counsel offered earlier dates to the Court commencing as early as the day after the matter was set for trial. As such, he submits that the entirety of the delay between these two dates should be institutional: 7 months, 6 days. I do not agree and would attribute 5 months, 6 days to institutional delay in this period.

[ 13 ] Pursuant to the principles set out in R. v. Lahiry [^3] , the Court must consider the realistic availability of counsel to accommodate the trial in their calendar and the time required for preparation. The institutional delay only starts to run when the parties are ready for trial but the system cannot accommodate them.

[ 14 ] Counsel for the Appellant submits that this was a straightforward impaired/over 80 case. With counsel as experienced as trial counsel, the case could have been ready to proceed within 24 hours. There were no Charter applications conceived at the time and the disclosure motion for production of Bill C-2 material was easily prepared. Realistically, he submits, all that Counsel needed to do was press a button on his computer and the materials required for the disclosure motion would have been produced. In short, Counsel for the Appellant argues that there were no difficult legal issues to overcome in this case necessitating a month or two of preparation time. I disagree.

[ 15 ] Despite the fact that trial counsel submits that he was available to conduct the trial within 24 hours of setting the trial date, it appears that the trial was a little more complex than Counsel for the Appellant would suggest. It is apparent that trial Counsel required time from June 17, 2009 when the judicial pre-trial was conducted to October 8, 2009 when the trial date was set (almost four months) to get instructions from his client and to retain a toxicologist. [^4]

[ 16 ] When the trial date was set on October 8, 2009, the Court was informed that there were disclosure issues and that is why two dates were set: May 13 and 14, 2010. There was no mention of either s. 11 (b) concerns or that the Appellant suffered any prejudice. As Crown Counsel articulately submitted during argument: trial Counsel adopted a “tone of contentment” and did not raise any issues regarding the urgency of obtaining an early trial date.

[ 17 ] The disclosure motion was scheduled to deal with the production of materials regarding Bill C-2. At the time the trial date was set, it was anticipated that the motion would be argued, a decision would have to be provided and if necessary, disclosure produced. If successful, the Appellant would have been provided with the necessary materials, would be required to review them and perhaps retain an expert. Accordingly, time would be required for Counsel to clear their calendars, prepare for the motion and then for trial.

[ 18 ] It is my view that two months from the date of setting the trial to the trial itself is a reasonable period of time to be considered inherent in the process. [^5] In conclusion, I find that 6 months 6 days was institutional delay between the period of October 8, 2009 and May 14, 2010.

May 14, 2010 to November 17, 2010

[ 19 ] Both Counsel agree that the entirety of the period between the first trial date of May 14, 2010 and the second trial date of November 17, 2010 should be attributed to the Crown. It was the Crown’s request for an adjournment due to the unavailability of a witness that caused the delay. This results in 6 months, 3 days of Crown delay.

January 14, 2011 to March 14, 2011

[ 20 ] The Appellant submits that the delay between the trial date of January 14, 2011 and the continuation of the trial on March 14, 2011 should be considered institutional delay rather than neutral delay. In the alternative, he submits that it could be a combination of both. He submits that had the Crown filed its response to the s. 11 (b) application on time, the matter would have been completed on January 14, 2011 and a further date would not have been required. Again, I disagree.

[ 21 ] While it is true that the Crown filed its response to the s. 11 (b) application on the morning of trial, some context must be considered. Firstly, the Crown tried to fax it to Counsel without success although he did not follow it up with a telephone call.

[ 22 ] Secondly, the response was four pages in length. If the signature page and the style of proceedings are removed, there are approximately 2.5 pages of relevant material including a reproduction of the test as set out in Morin . [^6] The matter was adjourned until the afternoon so that Counsel could consider the response. As the trial judge said, this allowed Counsel to review the matter for approximately three hours: one hour per page.

[ 23 ] Three hours of time to review the response was likely excessive for Counsel as experienced as trial Counsel was represented to be. As I was told many times during oral submissions, trial Counsel was trained by extremely capable Counsel: Mr. Fred Fedorsen. Trial Counsel was so capable in the area of impaired driving cases that he could have conducted the trial within 24 hours of the judicial pre-trial and pressed “print” on his computer to present the necessary materials regarding the Bill C-2 disclosure motion. In light of these submissions, I fail to understand why three hours was required to review approximately 2.5 pages of a standard Crown response to an application dealing with s. 11 (b) issues.

[ 24 ] It is clear that the trial judge was concerned about the age of the matter. He was faced with an accused person who had travelled from British Columbia and had before him an affidavit alleging significant prejudice was being suffered. To deal with the competing issues of delay and a process that was fair to the Appellant, he was content to proceed with the application in the afternoon of January 14, 2011.

[ 25 ] The trial judge addressed the parties at the end of the day on January 14, 2011. He urged the parties to obtain the earliest possible continuation date. He confirmed that delay was a concern and stated: “It is not right that I should be starting new matters and leaving old matters in the lurch and I’m quite content to push new matters to the side for the sake of concluding an old one”.

[ 26 ] The Court was available to continue the trial as early as February 1, 3, 4, 9, 11 and 14, 2011. Counsel for the Appellant was not available on those dates.

[ 27 ] When the s. 11(b) application was renewed on March 14, 2011, the trial judge held that the time between the two trial dates was neutral or inherent. I do not find that the trial judge erred in doing so. I agree that Counsel for the Appellant is not required to immediately change his schedule to accommodate the Court, but he might consider doing so to accommodate a client who was suggesting that she was suffering prejudice due to the delay in the proceedings. He did not and accordingly, the time between the two trial dates should be considered neutral. Such a finding was available on the facts of this case and did not result in an error by the trial judge.

[ 28 ] I have concluded that the institutional and Crown delay in this matter is 12 months, 9 days which is close to the delay considered by the trial judge of 12 months. It is on this basis that I will consider the matter of prejudice.

a. The Analysis of Prejudice

[ 29 ] I find that the trial judge did not commit an overriding and palpable error with respect to his finding that the Appellant suffered no prejudice as a result in the delay in this case. There was little in the way of inferred prejudice due to the delay being within two months of the guidelines set out in R. v. Morin . This is not a case where prejudice can be inferred because there has not been a long and unreasonable delay. [^7]

[ 30 ] While I appreciate that the Crown delay caused approximately 50% of the unreasonable delay that I have calculated, it results in about 25% of the overall delay to bring the Appellant to trial. I am also cognizant of the fact that the Appellant had retained a paralegal to assist her in the beginning and that she sought to adjourn the proceedings to consult with Counsel and retain an expert. Although I am not critical of either of those choices, the reality is that they prolonged the process. In essence, it cannot be said that all (or most) of the delay from the laying of the charges to the commencement of trial is either institutional or Crown delay allowing for a finding of inferred prejudice. [^8]

[ 31 ] The trial judge found that any prejudice arose as a result of the charges themselves rather than the delay. In my view, he did not err in making such a finding.

[ 32 ] The trial judge had affidavit evidence before him and the Appellant testified. In both sources of evidence, the Appellant referred to her anxiety, stress and depression as well as to difficulties in her employment and personal relationships.

[ 33 ] It is clear from the facts that the anxiety commenced immediately upon registering a “fail” on the road screening device and being placed under arrest. The Appellant suffered a panic attack; paramedics attended at the police station and transferred her to Mount Sinai Hospital for treatment. This was not caused by a delay in the proceedings.

[ 34 ] In her affidavit, the Appellant says that she believes “the passage of time negatively impacted my performance at work. I experienced trouble concentrating at work. As a result, I was terminated by my previous employer Kuene [sic] and Nagel”. However, on cross-examination, it became very clear that the Appellant lost her job at Khuene and Nagel in March, 2009 – a mere two months after the charges were laid. Accordingly, it is not the delay that caused her to lose her job.

[ 35 ] As I have stated above, the trial judge had the opportunity to observe the Appellant testify. His findings deserve deference. In my view, the trial judge did not err in finding that the Appellant suffered no prejudice based upon the record before him and in the circumstances of this case.

Conclusion

[ 36 ] It is my view that the trial judge was correct in dismissing the application for a stay. The societal interest in prosecuting the charges was strong. The Appellant’s blood alcohol level was between 145 and 190 milligrams per 100 millilitres of blood. She drove her car erratically on three major highways almost causing a collision. It is my view that a trial on the merits was warranted when balanced against the Appellant’s right to be tried in a reasonable period of time in the circumstances before the Court.

[ 37 ] For the above-mentioned reasons, the appeal is dismissed.

Kelly J.

Released: June 13, 2012

[^1]: 2005 ONCA 32192, [2005] O.J. No. 3764 (C.A.) at para. 30.
[^2]: See: R. v. Tran , supra , and R. v. Khan , 2011 ONCA 173 , [2011] O.J. No. 937 (C.A.).
[^3]: 2011 ONSC 6780 , [2011] O.J. No. 5071 (S.C.J.).
[^4]: The matter was adjourned at the request of the Appellant in order that her Counsel would obtain instructions from June 17, 2009 to July 30, 2009. On July 30, 2009 the matter was adjourned to September 3, 2009 and again to October 8, 2009 because the Appellant was in the process of retaining an expert. The Crown was prepared to set a trial date as early as July 30, 2009. No mention was made of either delay issues or prejudice at that time.
[^5]: See: R. v. Emmanuel , 2012 ONSC 1132 at para. 21
[^6]: R. v. Morin , 1992 SCC 89
[^7]: R. v. Emanuel , [2012] O.J. No. 708 (S.C.J.) at para. 29
[^8]: R. v. Steele , 2012 ONCA 383 at paras. 34-36 .